Lownsdale v. Gray's Harbor Boom Co.

• Decision Date: 15 December 1904
• Citation: 36 Wash. 198,78 P. 904
• Court: Washington Supreme Court
• Parties: LOWNSDALE et ux. v. GRAY'S HARBOR BOOM CO.

78 P. 904

36 Wash. 198

LOWNSDALE et ux. v. GRAY'S HARBOR BOOM CO.

Supreme Court of Washington

December 15, 1904

Appeal from Superior Court, Chehalis County; A. E. Rice, Judge.

Action by J. P. O. Lownsdale and wife against the Gray's Harbor Boom Company. From a judgment for plaintiffs, both parties appeal. Affirmed.

Ben Sheeks and J. B. Bridges, for plaintiffs.

J. C Cross and J. W. Robinson, for defendant.

MOUNT J.

This action was brought by the plaintiffs to recover from defendant certain lands, and for damages thereto, and for rent, and for the abatement of an alleged nuisance. The allegations of the complaint are substantially as follows That the plaintiffs are husband and wife; that on the 7th day of September, 1893, they were, and ever since have been, the owners of the southeast quarter of section 16, township 18 north, of range 11 west of the Willamette meridian, with the appurtenances; that during all of said time they have been in possession of, or entitled to the possession of, said premises, together with such shore lands and shore rights as are a part of and contiguous to the property above described and upon and within the Humptulips river and the slough within said lands; that the Humptulips river is a navigable stream for many miles inland, and that the tide ebbs and flows in the river within plaintiffs' property; that the river empties into Gray's Harbor; that a large slough extends inland from the said river through plaintiffs' property, and that the river and slough are valuable for rafting, sorting, and booming of saw logs and other timber that the banks of the river and slough within plaintiffs' lands are such as to furnish protection to logs and timber stored therein. They allege further that on December 8, 1893, the plaintiffs owned certain improvements, consisting of houses, piles, and other structures, on and along the banks of said river and slough; that on or about the said day the defendant unlawfully and wrongfully entered upon and took possession of portions of plaintiffs' premises aforesaid, adjoining and abutting upon the said river and slough within plaintiffs' lands, and their improvements, together with the banks, shore lands, shore lines, and shore rights belonging thereto, and appropriated the same to its own use, and to the exclusion of the plaintiffs. As specifying the damages suffered, plaintiffs allege $800 to be a reasonable sum for the use and occupation of the premises by the defendant for the year ending January 1, 1898; $1,100 for the use and occupation of the premises for the year ending January 1, 1899; $1,400 for the use and occupation of the premises for the year ending January, 1, 1900; $1,500 for the use and occupation of the premises for the year ending January 1, 1901; $1,500 for the year ending January 1, 1902; and $1,500 from January 1, 1902, to the commencement of the action. Plaintiffs allege that, after taking possession of plaintiffs' property, defendant had driven and constructed along and against the banks of the river upon plaintiffs' premises certain piling, connecting them with boom sticks and chains, forming a boom, and that at all times since wrongfully and unlawfully taking possession, and at the date of the commencement of this action, the defendant boom company was using the west bank and a large part of the east bank of the river, and both banks of the large slough in plaintiffs' premises, above the line of mean high tide, as the sides of defendant's boom. Plaintiffs further allege that defendant's boom, constructed as aforesaid, caused the currents of the river to shift and to wash away large portions of plaintiffs' lands, and form large gravel beds and sand bars in front of plaintiffs' property, and divert the stream from its natural channel within the boundaries of plaintiffs' lands; that defendant had cut, deepened, opened, and extended a shallow slough within plaintiffs' lands, so that the water in the Humptulips river was turned into this slough, and was cutting a channel across plaintiffs' lands, so as to greatly damage the lands. As a basis for injunctive relief, they allege, in addition to what is above stated, that the boom company so constructed its boom within the river and slough, and so used the river and slough in the catching and holding of saw logs within plaintiffs' premises, as to completely obstruct the river and slough from bank to bank for many months at a time during said term of years; that the effect of such obstruction was to prevent the use of the river or slough as a public highway, and to prevent the plaintiffs or any one else from using the said river or slough for floatage, and to render plaintiffs' premises inaccessible by water, and that by reason thereof plaintiffs had been wholly shut off from their lands and deprived of the use of the river and slough during the term of years mentioned in the complaint; that the defendant had thereby created and maintained, and was maintaining, a nuisance in a public highway within the boundaries of plaintiffs' land, to the special injury of plaintiffs.

The defendant, Gray's Harbor Boom Company, in answer, admits its corporate existence; that the Humptulips river is a navigable stream, and that it enters into Gray's Harbor at or near the south line of the lands described in plaintiffs' complaint; that the large slough described in the complaint is a navigable slough, and that the river and slough within plaintiffs' lands are valuable for booming, rafting, floating, and storing logs; that there are many million feet of timber along the banks of the Humptulips river, and in the territory tributary to such river, above plaintiffs' lands; that plaintiffs owned, and now own, a house on the lands described in their complaint, used by the defendant; and that it has at all times refused to pay plaintiffs any rental or damages on their alleged causes of action. The defendant admits also that it has constructed, maintained, and operated a boom in the river and slough, and has used the river and slough within the boundaries of the lands claimed by the plaintiffs, but denies that it has damaged the banks of plaintiffs' lands in any manner whatever, denies that it has used the plaintiffs' lands or premises, and denies that plaintiffs are entitled to recover from defendant damages on account of the use and occupation, or on account of erosions, or any other account, and denies that it has constructed or operated its boom or used the river or slough in such manner as to obstruct navigation, or to prevent plaintiffs from the use of their lands, and denies that its boom constitutes a nuisance. As a further defense, defendant alleges, in effect, that it is a corporation organized and existing under and by virtue of the laws of the state of Washington with reference to boom companies; that it has and exercises all the rights with which boom companies are clothed in this state by virtue of such corporation, and that whatever it has done on said river or slough has been done as a boom company, and that it has constructed, maintained, and operated its boom and used the river and slough skillfully and with due care, and without negligence, and without injury or damage to any of the rights of plaintiffs or their lands; that no change has been made in the channel of the river by reason of the defendant's boom or its operation.

Plaintiffs, in their reply to defendant's answer, deny generally the new matters contained in the answer.

Upon the issues thus formed, a trial was had, and a verdict rendered by the jury as follows: 'We, the jury in the above-entitled cause, hereby find for the plaintiffs, as follows: (1) That plaintiffs are entitled to the possession of the property described in the complaint above the line of mean high tide. (2) For damages for the use and occupation of said lands above the line of mean high tide for the sum of $3,000. (3) For damages for erosions and washing away of the banks of said lands above the line of mean high tide in the nominal sum of $1. (4) We find for the plaintiffs, and that the defendant, Gray's Harbor Boom Company, has obstructed navigation in the large slough during a part of the year. (5) We find that the Humptulips river has not been obstructed to navigation.'

Subsequently the court entered the following judgment in the cause 'It is ordered and adjudged and decreed by the court that the plaintiffs herein, J. P. O. Lownsdale and Sarah R. Lownsdale, do have and recover of the defendant Gray's Harbor Boom Company, a corporation, the sum of three thousand and one dollars ($3,001) and costs of suit, taxed at $105.25, with interest thereon from the date hereof at the rate of 6 per cent. per annum, and that they (plaintiffs) have execution therefor. It is further adjudged by the court that the plaintiffs herein, J. P. O. Lownsdale and Sarah R. Lownsdale, take nothing in this action in the way of possession or restitution of the property described in their complaint, and that the said plaintiffs take nothing herein by way of injunctive relief; that all other relief, except as to recovery in...