Lownsdale v. Gray's Harbor Boom Co.

• Decision Date: 13 October 1899
• Citation: 21 Wash. 542,58 P. 663
• Court: Washington Supreme Court
• Parties: LOWNSDALE v. GRAY'S HARBOR BOOM CO. et al.

58 P. 663

21 Wash. 542

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

Supreme Court of Washington

October 13, 1899

Appeal from superior court, Chehalis county; Charles W. Hodgdon Judge.

Action by J. P. O. Lownsdale against the Gray's Harbor Boom Company and C. E. Burrows & Co. to recover damages to land rents and profits, and possession. From a judgment in favor of plaintiff, the Gray's Harbor Boom Company appeals. Reversed.

N. W Bush and Irwin & Bridges, for appellant.

Geo. D Schofield, for respondent.

GORDON C.J.

Plaintiff in this action was the purchaser from the state of Washington of certain lands described in the complaint. The Humptulips river runs through a portion of the land, and extending back from the river, and also upon the land, is a slough of considerable dimension, being about 490 feet in width and an average depth of 10 feet. At this point in the river, as well as in the slough already mentioned, the tide ebbs and flows. The slough is not meandered. The evidence at the trial established conclusively, and it is undisputed here, that both river and slough are navigable at all times and in all seasons. The appellant, Gray's Harbor Boom Company, defendant below, is a corporation under the laws of this state, claiming all of the rights and privileges awarded to such corporations under the laws, including the act of March 18, 1895. Prior to the commencement of the present action, it had constructed its boom and driven piles in the bed of the river where the same crosses plaintiff's land. It had also caused its plat and map to be filed with the secretary of state, as required by law, which plat and map showed the lands which it proposed to appropriate to its use. It had also erected a cabin upon plaintiff's land at a point close to the stream, and in conducting its operations as a boom company the shore and banks were to some extent, at least, used and occupied by its workmen. The action was brought to recover damages to the land caused by the construction and operation of the boom above mentioned, and for rents and profits from December, 1893, to June, 1897, and to recover possession. Plaintiff had judgment for $930 and for possession.

At the trial the evidence disclosed that plaintiff was at the time be acquired the land, and also at the time of the trial, a married man, and that the property was community property of himself and wife. At the conclusion of the evidence on behalf of the plaintiff a motion for nonsuit was made, upon the ground that, the property being community property, the action could not be maintained by the husband alone, and that the wife was a proper and necessary party. In disposing of this motion, the trial court withdrew from the consideration of the jury all evidence tending to show any actual damage or injury to the land, but permitted the action to proceed limiting plaintiff's recovery to the value of the rents and profits and possession of the premises. This ruling was excepted to by the appellant, and is assigned here as error. In Parke v. City of Seattle, 8 Wash. 78, 35 P. 594, this court held that, in an action for damages for the wrongful appropriation of community real property, the wife was a necessary party plaintiff with the husband; and the rule thus laid down was subsequently recognized in Spurlock v. Railroad Co., 13 Wash. 29, 42 P. 520. In the first of these cases the court, disposing of the questions, said: 'If he [the husband] has authority to maintain such an action, it follows that he has authority to compromise it, and to release the claims for which the same was brought.' We are satisfied with the reasoning and conclusion arrived at in that case, and think that it controls the question in the present case, notwithstanding that in the present case the recovery was limited to the possession of the property and to the value of the rents and profits. It seems to us that, if the husband can maintain the action for rents and profits of community real property, he can do so only upon the theory that he has power in the first instance to make a lawful lease of it. A lease is an incumbrance, and, under section 4491, 1 Ballinger's Ann. Codes & St., the husband, while having the management and control of the community real property, is expressly prohibited from conveying or incumbering it, unless the wife joins with him. We think the every objection which can be urged against the maintenance of an action by the husband alone to recover damages for the appropriation of community real property applies...