Judson v. Tide Water Lumber Co.

• Decision Date: 08 December 1908
• Court: Washington Supreme Court
• Parties: JUDSON et ux. v. TIDE WATER LUMBER CO.

98 P. 377

51 Wash. 164

JUDSON et ux. v. TIDE WATER LUMBER CO.

Supreme Court of Washington

December 8, 1908

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by Edward B. Judson and wife against the Tide Water Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed and remanded, with instructions to enter a supplemental order modifying the judgment.

G. C Israel and W. P. Reynolds, for appellant.

Ellis Fletcher & Evans and Herbert S. Griggs, for respondents.

HADLEY C.J.

This is an action for damages occasioned by the alleged wrongful obstruction of a portion of the channel of the Puyallup river. The removal of the obstructions is also sought to be effected by the action in order that the original flow of the river may be re-established. The defendant, Tide Water Lumber Company, is the owner of a lumber mill on the westerly or left side of the Puyallup river, not far above the mouth of the stream where it flows into Puget Sound. On the easterly or right side of the river, and a short distance down the stream below that part of the shore immediately opposite the defendant's mill, lies a tract of land which belongs to the plaintiffs. The complaint alleges: That this land lies on the east bank of the stream and has a frontage as originally surveyed and meandered by the United States, of about 460 feet on the river, and the premises contain 6.22 acres according to the original surveys and meanders. That the Tide Water Lumber Company, in connection with the operation of its lumber manufacturing plant upon the opposite side of the river, some time in the year 1902, commenced to obstruct the channel of the river in front of the mill premises by extending permanent obstructions beyond the left bank of the river into the channel thereof. That it has continued to enlarge the obstructions gradually from time to time, and is now engaged in so doing; the same consisting of a double now of piling extending out into the river channel beyond the west or left bank for a distance of about 250 feet, and thence northwesterly along the line of the channel and parallel to the west bank a distance of about 400 feet having a connection back to the west bank by similar construction a distance of about 250 feet. That the piling is driven deeply and solidly into the river bottom, and is braced and faced with rough planking and supports so as to form a permanent bulkhead. That by the obstructions the defendant has inclosed about 2 1/2 acres which, prior to the obstructions, formed a part of the original channel of the river. That the defendant has dredged out a portion of the bottom of the channel so inclosed and has deposited the matter so dredged out on the outside of the bulkhead so as to permanently obstruct and appropriate to its exclusive use the original channel, for a distance of about 250 feet in width and 400 feet in length along the course of the channel. That but for the obstructions so placed by the defendant the river would naturally have flowed along in the lines of the original channel, and would not have encroached upon the plaintiffs' property beyond the original government meander thereof. That the obstructions diverted the course of the river from the natural channel and forced the current and flow of the waters upon plaintiffs' land, so that a large part thereof has been washed out. The answer denies many of the averments of the complaint, and affirmatively alleges that the washing away of the plaintiffs' land has been due to the action of high water in the river in times of flood, and not to any diversion of the channel by the defendant. The cause was tried by the court without a jury, and resulted in a judgment for the plaintiffs in the sum of $11,250, as damages; also, in a decree declaring that the original and natural east bank of the river in front of the plaintiffs' property corresponded in general with the meander line of the government survey, and that the original and natural west bank of the river in front of the defendant's property corresponded in general with the delineation thereof as shown on the plat of Indian addition to the city of Tacoma, which plat is of record in the auditor's office of Pierce county, Wash. The decree also requires the Tide Water Lumber Company to forthwith remove from the river all piling, bulkheading, dirt, logs, débris, and obstructions of every kind and description, placed by it in the river extending beyond the natural bank thereof as above defined; that the work of removal should be commenced before the 17th day of February, 1908, and thereafter diligently prosecuted and finished by the 17th day of May, 1908. It is also provided that, in the event the work of removal is not commenced within the time...