East Hoquiam Boom & Logging Co. v. Neeson

• Decision Date: 11 November 1898
• Citation: 54 P. 1001,20 Wash. 142
• Court: Washington Supreme Court
• Parties: EAST HOQUIAM BOOM & LOGGING CO. v. NEESON ET AL.

54 P. 1001

20 Wash. 142

EAST HOQUIAM BOOM & LOGGING CO. v. NEESON ET AL.

Supreme Court of Washington

November 11, 1898

Appeal from superior court, Chehalis county; Charles H. Ayer, Judge.

Action by the East Hoquiam Boom & Logging Company against Charles Neeson and others. From a judgment for defendants, plaintiff appeals. Reversed.

Geo. D Schofield (D. J. Crowley and J. H. Parker, of counsel), for appellant.

Austin E. Griffiths and J. A. Hutcheson (Greene & Griffiths, of counsel), for respondents.

GORDON J.

This action was brought to foreclose four liens which plaintiff claimed it was entitled to by reason of having rendered and performed certain services upon respondent Neeson's logs in sluicing, sacking, driving, assorting, delivering, and booming the same. The trial in the lower court resulted in a judgment dismissing the action and for costs and the plaintiff has appealed therefrom.

The plaintiff is a corporation organized under the laws of this state relating to boom companies, and became incorporated in March, 1895. Within 90 days after filing its articles, it filed in the office of the secretary of state its plat and survey of the shore lines and waters of the East fork of the Hoquiam river, from the south line of section 25, township 18 N., of range 10 W. of the W. M., up to and including sections 8 and 9 in township 20 N., range 9 W., situated in Chehalis county, in this state, and including all portions of said river and all tributary streams between said designated points. Within 90 days after the filing of its plat and survey, it entered upon its duties as such corporation, which duties it has since continued to perform. Plaintiff's incorporators were Robert F. Lytle and Joseph F. Lytle, who prior to the incorporation of plaintiff, had partially improved said stream by removing some obstructions therefrom and constructing a dam (hereinafter referred to as "plaintiff's lower dam"), such dam being located upon the land of Robert F. Lytle, and also a boom for holding logs, the latter being located in the river at a point below tide water. The plaintiff, upon its incorporation, succeeded to the rights and interests of the said Robert and Joseph Lytle, and continued to improve the stream by removing fallen trees, snags, roots, jams of logs, and other obstructions, and by repairing the dam hereinbefore referred to, and constructing another dam (known and hereinafter referred to as plaintiff's upper dam) at a point on the stream distant about 2 1/2 miles from the lower dam. In its natural condition, and prior to any improvements made by the Lytles thereon, the stream in question was a narrow, crooked stream, varying in width from 40 [20 Wash. 144] to 150 feet, and containing numerous shallows and sandbars. The tide ebbs and flows for about 7 or 8 miles above the mouth of the river. Plaintiff's lower dam is situated about 7 miles above tide water. Respondent Neeson is the owner of timber land lying adjacent to and on both sides of said stream, above that portion thereof which is included in plaintiff's map of location. In March, 1896, Neeson began the construction of a dam located wholly upon his own land, at a point on the stream distant about three-quarters of a mile above plaintiff's upper dam. Neeson completed his dam in June, 1896. He also constructed in tide water a suitable boom for holding his logs. The evidence transmitted to this court satisfies us that, prior to the improvement of this river and the removal of obstructions therefrom, it was wholly unnavigable and nonfloatable. It also satisfactorily appears that the Lytles were the first to improve and remove obstructions from the stream above tide water. These improvements were commenced by them some time in the fall of 1893. Immediately upon completing its incorporation, the plaintiff proceeded to further improve the stream, and removed snags, fallen timber, roots, and other obstructions therefrom, besides repairing and completing the lower dam, and building its upper dam hereinbefore mentioned, expending in such improvements a sum approximating $20,000, and ever since has continued to keep the channel of said stream below its upper dam, and between said dam and the mouth of the river, free from obstructions, and for that purpose has kept, and still keeps, men constantly employed, and, by means of the water stored by its dams, has rendered the stream floatable for the purposes of moving and driving logs down to tide water at all seasons of the year. It also appears that the annual expense of keeping the stream clear of obstructions, so as to enable the logs to be floated thereon, between plaintiff's upper dam and tide water, amounts to hundreds of dollars. Plaintiff's dams are constructed in a scientific, workmanlike, and proper manner, and the same is true of Neeson's dam. Since the summer of 1895, plaintiff, by reason of its improvements done upon the stream, the removal of obstructions therefrom, and the erection of its dams, has been able, ready, and willing to sluice, sack, and drive the logs and timber products placed in the bed of said stream within the confines of its plat, or delivered into its ponds, and to handle all such logs and other timber products of all persons upon the same terms, without discrimination as to time of sluicing, sacking, and driving, and claims to charge and collect for such service reasonable and uniform tolls, not exceeding 60 cents per thousand feet board measure, either on logs, spars, or other large timber, which sum was determined by the directors of the plaintiff corporation, pursuant to section 5 of the act of March 18, 1895 (Sess. Laws 1895, p. 130), to be reasonable compensation. In the summer of 1896, the defendant, who, after the incorporation of plaintiff and the erection of plaintiff's improvements, engaged in the business of logging from his own land on said stream, above the upper dam of appellant, floated into appellant's lower dam 734 logs. At that time there were other logs lying in plaintiff's dam belonging to different parties, which the owners desired should be driven to tide water; and it had become the duty of plaintiff, under the act of 1895, supra, to sluice and drive such logs down the river; and the position of respondent's logs in plaintiff's dam was such as to impede and obstruct the driving of such other logs unless respondent's logs were also driven. It satisfactorily appears that plaintiff notified respondent Neeson to remove his logs; that Neeson claimed the right to float his logs down the river, and insisted that he could do so if not obstructed by plaintiff's dam.

Upon the question of whether Neeson, by the aid of splashes of water from his own dam, could have floated his logs to tide water, the evidence is very conflicting, but we deem it quite immaterial to determine that question. One fact, and, in our judgment, a controlling one, is clear, viz that in its natural condition, and but for the expenditure of money upon the part of the plaintiff and its incorporators in the improvement of the stream and the removal of the obstructions hereinbefore referred to, it would have been utterly impossible for respondent to have floated his logs thereon; so that the extent to which this claim on the part of respondent can go is that, in the improved condition of the stream, he would be able to float his logs on down to the river's mouth by successive splashes from the waters of his own dam. It is well settled that a stream which can only be made navigable or floatable by artificial means is not a public highway. The Daniel Ball, 10 Wall. 557; Diedrich v. Railway Co., 42 Wis. 248; Smith v. Fonda, 64 Miss. 551-555, 1...