Hulet v. Wishkah Boom Co.

Citation103 P. 814,54 Wash. 510
PartiesHULET et ux. v. WISHKAH BOOM CO.
Decision Date26 August 1909
CourtUnited States State Supreme Court of Washington

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by Charles H. Hulet and wife against the Wishkah Boom Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Morgan & Brewer and W. H. Abel, for appellant.

Elmer E. Shields and W. I. Agnew, for respondents.

CROW J.

Action by Charles H. Hulet and Maggie Hulet, his wife, against the Wishkah Boom Company, a corporation, to enjoin the defendant from so operating its splash dams and boom as to obstruct navigation of the Wishkah river and injure respondents' lands, and to recover damages. From a judgment and decree granting an injunction and awarding damages, the defendant has appealed.

The case comes to this court on the pleadings and the findings made by the trial court. The assignments of error present the single question whether the respondents are entitled to the injunctive relief and the damages awarded. The sufficiency of the complaint is challenged, but the record does not show that the appellant attacked it by demurrer. This being true we will, in the absence of the evidence, which might have amplified and aided the complaint, confine ourselves to the single question whether the findings support the judgment and decree.

The trial court found that respondents are the owners in fee simple of lands located on the westerly bank of the Wishkah river; that said river is a navigable, meandered stream and public highway, being respondents' means of ingress to and egress from their lands, which reach its meandered line; that the appellant corporation is carrying on its business as a boom and driving company on the river, in which it has constructed a logging boom, below respondents' land, for catching, holding, and sorting logs; that its boom has been approved by the War Department of the United States, and is not in itself an unreasonable hindrance to navigation; that appellant has also constructed and maintained above respondents' land, and above the influence of the tide, three large splash dams, and authorized their use by certain loggers to create artificial freshets and drive logs down the river to appellant's boom; that the river is influenced by the tide, and is navigable in fact, for a distance of about 15 miles above its mouth; that respondents' lands are about 10 miles above its mouth, and are located between appellant's boom and the splash dams; that the river above the influence of the tide carries and maintains an insufficient supply of water to float and drive logs to the appellant's boom; that for three years certain loggers have deposited timber products in the river above and below respondents' land, all consigned to appellant's boom; that, for the purpose of securing the driving of logs to its boom, appellant entered into a contract with the loggers whereby it authorized them to use the splash dams for creating artificial freshets; that by the terms of the contract such use was to be considered a driving of the logs by appellant, it receiving a stipulated toll therefor and paying some of the employés who operated the dams; that under this agreement large volumes of water were collected and stored by the dams, and under the loggers' directions were suddenly released about three times a week, to create artificial freshets and drive logs that the logs were thus driven in such large quantities that immense jams and drifts formed in the river channel and obstructed its navigation above appellant's boom; that logs were deposited in the river, some above and others below the splash dams; that those deposited above were driven by artificial freshets through the gates of the dams and with others deposited below the dams would, by floating on the incoming tide, return up the river; that, when the tide receded, some would lie in jams in the river bed, while others, returning with the tide, would block the landings of certain loggers located below respondents' lands; that such loggers for their own convenience placed a boom stick across the river, below respondents' land and above appellant's boom, to prevent the obstruction of their landings; that appellant allowed the boom stick to remain as an obstruction across the river and hold the logs coming down from above; that, when logs were needed in its boom, it would from time to time open the boom stick and allow them to float down; that it then replaced or closed the boom stick, and that by reason of the location of the boom stick across the river large jams of logs were maintained in the river above the same; that the boom stick and appellant's splash dams, so operated by the loggers under their arrangement with appellant, did for three years cause a total obstruction of navigation and prevent the respondents from using the stream as a highway to and from their lands; that artificial freshets produced by the operation of the splash dams washed away lands of the respondents abutting the stream to the extent of one acre, in addition to loss from natural erosions, to their damage in the sum of $200; that the artificial freshets also caused a large number of logs to float out of the channel of the stream and to remain where deposited upon respondents' cultivated lands, to their further damage in the sum of $50; and that such damages were caused by acts of the appellant in permitting the loggers to drive more timber products down the stream than it could care for in its boom. Upon these findings a final judgment was entered, whereby it was ordered that the appellant be enjoined from placing and maintaining in the water of the river, between its mouth and the respondents' lands, any saw logs or timber...

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5 cases
  • Port of Seattle v. Oregon Co
    • United States
    • United States Supreme Court
    • January 31, 1921
    ...326, 331, 95 Pac. 278. The language of some earlier cases apparently in conflict with these views, was explained in Hulet v. Wishkah Boom Co., 54 Wash. 510, 517, 103 Pac. 814. The cases referred to go no further than to hold that the owner of uplands has a right in common with the public to......
  • State v. Sturtevant
    • United States
    • United States State Supreme Court of Washington
    • October 25, 1913
    ...... court has, with the exception of the case of Burrows v. Grays Harbor Boom Co., 44 Wash. 630, 87 P. 937,. uniformly held that there is no riparian right in the owner. ...v. Lownsdale, 54. Wash. 83, 102 P. 1041, 104 P. 267; Hulet v. Wishkah Boom. Co., 54 Wash. 510, 103 P. 814, 132 Am. St. Rep. 1127;. Lownsdale v. ......
  • Bales v. City of Tacoma
    • United States
    • United States State Supreme Court of Washington
    • April 11, 1933
    ...... Olsen v. Bremerton, 110 Wash. 572, 188 P. 772;. Hulet v. Wishkah Boom Co., 54 Wash. 510, 103 P. 814,. 132 Am. St. Rep. 1127; Dawson v. McMillan, 34 ......
  • Olson v. City of Bremerton
    • United States
    • United States State Supreme Court of Washington
    • April 5, 1920
    ...... nuisance. Dawson v. McMillan, 34 Wash. 269, 75 P. 807; Hulet v. Wishkah Boom Co., 54 Wash. 510, 103 P. 814, 132 Am. St. Rep. 1127. The demurrer to the ......
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