Kalama Elec. Light & Power Co. v. Kalama Driving Co.

• Decision Date: 04 March 1908
• Citation: 48 Wash. 612,94 P. 469
• Court: Washington Supreme Court
• Parties: KALAMA ELECTRIC LIGHT & POWER CO. v. KALAMA DRIVING CO.

94 P. 469

48 Wash. 612

KALAMA ELECTRIC LIGHT & POWER CO. v. KALAMA DRIVING CO.

Supreme Court of Washington

March 4, 1908

Appeal from Superior Court, Cowlitz County; W. W. McCredie, Judge.

Injunction by the Kalama Electric Light & Power Company against the Kalama Driving Company. From a judgment for plaintiff defendant appeals. Affirmed.

Coovert & Stapleton, for appellant.

A. L Miller and W. A. Magill, for respondent.

CROW J.

This action was commenced by the Kalama Light & Power Company, a corporation, against the Kalama Driving Company, a corporation, to enjoin the defendant from interfering with the natural flow of the waters of the Kalama river. An agreed statement of facts was filed, upon which the trial court made findings, and entered a decree enjoining and restraining the defendant from interfering with the usual and natural flow of water in the Kalama river through, upon, and by the plaintiff's land, and from using artificial dams for storing water and creating artificial freshets. The defendant has appealed.

The only question presented is whether this decree is supported by the findings. The findings of fact material to this question in substance show that the respondent, Kalama Light & Power Company, is a corporation organized under the laws of this state for the purpose of manufacturing and dealing in electric light and power; that it owns real estate on which its electric power plant, head gates, flumes, and other structures are located; that the Kalama river which passes over and through its lands, and from which it takes water for power purposes, is a swift mountainous stream about 60 miles in length, of sufficient width, depth, and capacity to be floatable for logs and other timber products during natural annual freshets of the fall, winter, and spring; that respondent's intake and head gates are located at low-water mark; that the river at all seasons by its natural flow furnishes water in sufficient quantities for the operation of the light and power plant; that after diverting the water through the intake and flumes the respondent returns it to the bed of the river, on its own premises; that respondent's plant is extensive and valuable, furnishing light and power to inhabitants of Kalama and Woodland; that the Kalama Driving Company is organized for the purpose of clearing and improving navigable streams, especially the Kalama river, and driving, sorting, and delivering timber products; that it has complied with all the requirements of the laws of this state under which it is incorporated; that after respondent had installed its light and power plant, and had appropriated water for power, the appellant entered upon the river and commenced to improve the same by removing boulders, timbers, and other obstructions, by building wing dams, splash dams, and other structures, by creating artificial freshets upon which to drive logs during seasons when they could not be driven for the want of natural freshets; that an enormous amount of timber tributary to the river can be profitably driven to market upon the stream, but that all of it cannot be transported on the natural freshets or without the aid of artificial freshets; that the appellant in conducting its business as a driving company is about to construct a large splash dam one-half mile above respondent's light and power plant, intending thereby to collect and store water for creating artificial freshets at seasons when no natural freshets occur; that at all times when the water is being collected by this dam its flow past respondent's land will temporarily cease; that it will require at least 9 hours to collect and store the water each time the dam is closed, which will be a number of times each week; that while the dam is thus closed the respondent's plant will be compelled to remain idle for want of sufficient water to create power; that respondent is a riparian owner of land abutting upon the stream, being the land upon which its plant is located; and that it will be irreparably damaged if the appellant is permitted to continue its interference with the natural flow of the water.

The Kalama river is a navigable stream, being useful for the profitable floating of timber products at seasons when natural freshets occur. The appellant has under the laws of this state authority to improve the river, to clear it from obstructions, to construct wing dams, splash dams, and other improvements, and to collect and store water for artificial freshets, thereby extending the navigability of the stream for driving purposes. Appellant contends that in making such improvements it has the right to retard the natural flow of the water whenever necessary for the creation of artificial freshets, and to do so without interference from the respondent. It insists that the state itself has the right in the absence of congressional interference or control to improve all navigable streams for the purpose of securing better transportation facilities to the public; that it may do so without interference or protest from riparian owners whose land is not actually taken, destroyed, or submerged; that when it by statute authorized appellant and kindred corporations to make such improvements it delegated its own power and authority to them; that such delegation of authority is valid; that floatable streams are navigable public highways; and that the statutory right of driving companies to erect dams and other improvements, and to create artificial freshets on such floatable streams, thereby improving and extending their navigability for public use, has been sustained by this court--citing East Hoquiam Boom Co. v. Neeson, 20 Wash. 142, 54 P. 1001; Watkins v. Dorris, 24 Wash. 636, 64 P. 840, 54 L. R. A. 199; Lownsdale v. Grays Harbor Boom Co., 36 Wash. 198, 78 P. 904; Dawson v. McMillan, 34 Wash. 269, 75 P. 807.

Having made the above contention, the appellant further insists that as long as it does not trespass upon or take physical possession of respondent's lands, does not flood or destroy any portion thereof, is not guilty of negligence while driving timber products or creating artificial freshets, but confines its operations to the bed of the river, it will not be unlawfully interfering with any of respondent's riparian rights. In effect, it contends that any incidental damage resulting to respondent from its operations upon the river will be damnum absque injuria. In support of these contentions appellant cites numerous authorities, including the following cases from the states of Wisconsin, Maine, and Oregon, upon which it predicates its...