Maulsby v. Cook

• Decision Date: 21 April 1925
• Docket Number: 18944.
• Citation: 134 Wash. 133,235 P. 23
• Court: Washington Supreme Court
• Parties: MAULSBY v. COOK et al.

235 P. 23

134 Wash. 133

MAULSBY v. COOK et al.

No. 18944.

Supreme Court of Washington

April 21, 1925

On Petition for Rehearing, June 10, 1925.

Department 1.

Appeal from Superior Court, Snohomish County; Alston, Judge.

Action by Z. R. Maulsby against Caleb Cook and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded with directions.

W. P Bell and J. A. Coleman, both of Everett, for appellant.

E. W Klein, of Snohomish, and Coleman & Fogarty, of Everett, for respondents.

TOLMAN C.J.

This is an action in the nature of replevin to recover possession of certain sawlogs which by the flood waters of the Snohomish river were cast upon respondents' land and there left stranded when the flood subsided. From a judgment denying relief, the plaintiff has appealed.

The facts, in the main, are stipulated, and there is no material controversy except as hereinafter noted. It appears that respondents are the owners of some 80 acres of low bottom lands bordering on the river, most of which has been cleared and put in cultivation, or used for pasture. That the river is a large meandered, navigable stream and is subject to sudden freshets. A freshet occurred in the early part of February, 1924, during which the waters of the river rose, in less than two days, to such an extent that they overflowed the banks and all of the low lands of the respondents to a depth perhaps of some 10 feet. Previous to the occurrence of the freshet, the appellant and his assignors, who were engaged in logging on the river above respondents' premises, had there put sawlogs into the river and had left them to be floated down without attendance. The freshet referred to brought the logs down the river and over and upon respondents' low lands, where many of them became stranded in places where there was brush and small trees, and as the waters receded several hundred logs were left upon respondents' land, distant from the river from 400 to 1,000 feet, in positions where they could only be removed by a crew of men and a donkey engine or tractor, and it would require several days' time with such a crew and appliances to take them from the places where stranded and place them in the river. It appears that the logs could not be so removed without doing more or less incidental damage to the respondents' land, the amount of damage depending upon the care with which the operations might be conducted. Appellant had procured a large steel shoe, to be placed on the forward end of each log, to minimize the damage to respondents' land and facilitate the hauling of the logs to the river, and provided with this equipment he sought leave to remove the logs, which was denied him. The logs are of the admitted value of $2,000. Respondents claim no right, title, or interest in or to them admit that they belong to the appellant, but refuse permission to the appellant to remove them, solely upon the ground that the damage to their lands, which would be caused by such removal, must first be ascertained and paid to them before the right of removal can be exercised. The evidence appears to establish with reasonable clearness that the logs could not have been removed by any known practical method before the waters subsided, and while the trial court found that the logs were deposited upon respondents' land by reason of a jam of logs which formed in the river near the upper end of respondents' premises, yet he did not find that the jam was permitted to remain an unreasonable length of time or that any care or precaution on the part of appellant and his assignors would have prevented the jam from forming or could have prevented the logs from being cast upon the respondents' land.

As we read the evidence, the testimony as to the forming of the jam is rather vague and unsatisfactory. We are not satisfied that any jam was formed, or, if so, that that was the cause of the logs being cast upon the respondents' land, and since negligence is never presumed, we would not be justified in holding that there was any negligence on the part of the appellant or his assignors which was the proximate cause of the logs leaving the stream.

Respondents present two reasons why the judgment should be affirmed: (1) That replevin will not lie, and (2) that the owner of the logs may not enter their land, against their consent, for the purpose of removing the logs, until the damage to their land, to be caused by such removal, has first been ascertained and paid. We will discuss these questions in inverse order.

1. Respondents rely upon article 1, § 16, of our state Constitution, which, among other things, provides:

'No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner * * *'

--and cite Conger v. Pierce County, 116 Wash. 27, 198 P. 377, 18 A. L. R. 393, and Reed v. Seattle, 124 Wash. 185, 213 P. 923, 29 A. L. R. 446. But we cannot think these cases are in point. Respondents' main reliance seems to be upon Watkins v. Dorris, 24 Wash. 636, 64 P. 840, 54 L. R. A. 199, and Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 P. 813, 70 L. R. A. 272, 102 Am. St. Rep. 905. These cases are largely devoted to a determination of the respective rights arising out of the floating of timber products in streams which are navigable only for such purposes, none of which questions are here involved, as the Snohomish river is admittedly a navigable stream for all purposes, and the riparian owners have no interest in the bed of the stream; but in the Dorris Case it was said:

'But neither such corporation nor individuals can interfere with the soil in a stream of the character of Elochoman creek, the bed of which is owned by the landowner, without the landowner's consent, or, by operation of law, with due compensation made. The same reasoning applies with even greater force to the use of the banks of the stream, as was sought to be done in this case. Lownsdale v. Gray's Harbor Boom Co., 21 Wash. 542, 547 (58 P. 663). Appellants, therefore, have the right to drive their logs down the stream as long as they do so without damage to the landowner. But, if the use of the freehold or shore rights is required, they must acquire them, either as individuals, or by condemnation in a corporate capacity, as provided by the statutes above mentioned.'

And in the Menzel Case that point was reinforced by the following:

'Another provision of the decree, with reference to the methods attending respondent's navigation, also calls for examination. It will be remembered that, by its terms, the decree prohibits appellant from interfering with respondent's employees in the way of preventing them from going upon the banks of the stream upon appellant's lands, for the purpose of breaking jams of shingle

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