McInnis v. Day Lumber Co.
| Decision Date | 30 April 1918 |
| Docket Number | 14487. |
| Citation | 102 Wash. 38,172 P. 844 |
| Parties | McINNIS et ux. v. DAY LUMBER CO. |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, Skagit County; Augustus Brawley, Judge.
Action by C. F. McInnis and wife against the Day Lumber Company. From judgment rendered, plaintiffs appeal. Affirmed.
James C. Waugh, of Mt. Vernon, and J. W. Russell, of Seattle, for appellants.
Thomas Smith, of Mt. Vernon, and Coleman & Gable, of Sedro-Wooley for respondent.
The plaintiffs, McInnis and wife, seek a judgment to compel the defendant, Day Lumber Company, a corporation, to remove a dam maintained by it in Nookachamps creek, at its sawmill in Skagit county, which dam the plaintiffs claim causes the overflow of their land, and also seek damages for past injuries to their land so caused. Trial in the superior court for that county resulted in findings and judgment enjoining the defendant from maintaining the dam above a certain height, and awarding the plaintiffs damages for past injuries in the sum of $50. From this disposition of the cause the plaintiffs have appealed to this court.
Plaintiffs own land bordering upon the upper end of a natural widening of the creek, caled Big Lake, some 2 1/2 miles above respondent's sawmill, which is situated at the lower end of the lake. In the year 1897 Parker Bros., a copartnership, built the dam in question in the creek just below the lower end of the lake for the purpose of raising the water a few feet to facilitate the handling of shingle bolts and logs brought to their mill there situated, to be manufactured into lumber and shingles. Thereafter this mill property, including the dam, was conveyed by Parker Bros. to the J. D. Day Lumber Company, a copartnership, and thereafter it was conveyed by the J. D. Day Lumber Company to respondent Day Lumber Company, a corporation, the present owner. The dam as originally constructed consisted of a cedar log about four feet in diameter laid across the bed of the creek for the foundation of the dam, and other timbers were placed on top of it so as to make the top of the dam considerably higher. Just how high the dam was originally constructed in the year 1897 is a matter of some uncertainty. We think, however, that the evidence fully warrants the conclusion reached by the trial court that for more than ten years prior to the year 1910 the dam was continuously maintained by respondent and its grantors to at least the height of 29 inches above the top of this foundation cedar log, which log is still in the same position as originally placed, and in a fair state of preservation. The changes of material with which the dam has been maintained have been only in the portions thereof above the log. Repairs made upon the dam since about 1909 have resulted in raising it several inches, possibly a foot, higher than 29 inches above the foundation log. The exact extent of this raise we need not here notice. The trial court rendered judgment enjoining respondent from maintaining the dam at a greater height than 29 inches above the top of the foundation log, and awarded the appellants the sum of $50 damages for injuries to their land by the overflow thereof caused by the raising of the water more than 29 inches above the top of the foundation log.
The judgment, in so far as it restrains the maintenance of the top of the dam not to exceed 29 inches above the foundation log, was, by the trial court, rested upon the theory that respondent had acquired the right in 1910 to maintain the dam at that height, by prescription, as against appellants as owners of the land which the maintenance of the dam at that height caused to be overflowed. We agree with the trial court that the evidence calls for the conclusion that for more than ten years prior to 1910 and up to the present time respondent and its grantors have continuously, without any interruption whatever, maintained the dam, at least, to the height of 29 inches above the foundation log. The evidence is quite voluminous, and is not wholly free from conflict, but that it preponderates in favor of the court's conclusion we are quite...
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...for any 10 year period; although, the PUD's CR 30(b)(6) designee could probably immuniate this issue on remand.¶94 The parties also rely on McInnis . In McInnis , the Supreme Court considered a prescriptive easement in favor of a dam operator to flood surrounding lands. The dam was a reserv......
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