Matthews v. Belfast Mfg. Co.

• Decision Date: 21 September 1904
• Court: Washington Supreme Court
• Parties: MATTHEWS v. BELFAST MFG. CO.

77 P. 1046

35 Wash. 662

MATTHEWS v. BELFAST MFG. CO.

Supreme Court of Washington

September 21, 1904

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Action by Woodman Matthews against the Belfast Manufacturing Company to restrain defendant from using complainant's land for the purpose of floating logs and from floating logs in a stream across complainant's property by means of artificial freshets, etc. From a decree in favor of complainant, defendant appeals. Affirmed.

Millim & Houser, for appellant.

Smith &amp Brawley and Carr & Preston, for respondent.

FULLERTON J.

The appellant and respondent each own timber lands in Skagit county, through which the East Fork of the Samish river flows; the lands of the appellant being higher up the stream than those of the respondent, although the lands about upon each other. The Samish river is an unmeandered stream, having an average width between banks of some 50 feet, and during the wet season of the year is capable of floating such mill timber as grows upon its banks and in its immediate vicinity. In the dry season it is not navigable without artificial aids, having at such time a depth of less than 2 feet in many places. The respondent, some years prior to the commencement of this action, had been engaged in logging on his own premises, and had constructed a dam across the river on his own lands some distance below the lands of the appellant. This dam he has kept up ever since, maintaining therein, as he says, suitable gates through which logs pass unobstructed during the time of the year when the stream is high enough to float them. In the summer of 1903 the appellant began logging off of its own lands. To facilitate the work it constructed a dam across the river about 1 1/2 miles above the respondent's dam. This dam it used, not only to retain logs until they were ready to be sent down the river, but also to create a storage basin for water, by means of which it could cause splashes or artificial freshets in the stream, and thus drive logs down the same after it became too shallow to float them in its natural state. The appellant operated in this manner: It would put into the bed of the river as many logs as could be readily driven. Then it would open the gates of its own dam and drive the logs down the stream as far as the dam of the respondent. From there, by repeated splashes from both dams it would drive them to the deep waters of Bellingham Bay into which the Samish river flows. In these operations the appellant found it necessary to use the respondent's dam, and it took possession of the same against the consent and over the protest of the respondent, and used it as if it were its own property. The appellant also, without the consent and against the will of the respondent, made such use of the respondent's land bordering the stream as it found necessary and convenient in order to drive its logs. The artificial freshets or splashes created by means of the dams drove the logs down the stream in lots or jams, which tore down and washed away the river's banks, forming a river bed out of what was before tillable land.

The respondent instituted this action to enjoin the appellant from using his property in the manner stated and from floating logs down the stream across his property by means of artificial freshets and splashes, alleging, in his complaint, substantially the foregoing facts. To the complaint the appellant answered, denying all its material allegations, and by way of cross-complaint alleged that it had gone to great expense to prepare for logging its premises, and that if stopped by the court would suffer irreparable injury; further alleging that it had instituted condemnation proceedings against the respondent for the purpose of acquiring the right to use the stream by means of splash dams therein where necessary. It also alleged that the dam of respondent was an obstruction to navigation in the stream, and therefore a nuisance. It prayed for relief appropriate to matters set up in its answer. The new matter in the answer was put in issue by a reply, and a trial had before the court, resulting in a permanent injunction against the appellant, enjoining it from operating either of the splash dams mentioned, and from in any manner interfering with the possession or use of the respondent's land. There was a claim for...