Nicomen Boom Co. v. North Shore Boom & Driving Co.

Decision Date30 September 1905
Citation40 Wash. 315,82 P. 412
CourtWashington Supreme Court

Appeal from the Superior Court, Pacific County; R. B. Albertson Judge.

Suit by the Nicomen Boom Company against the North Shore Boom &amp Driving Company. From a decree in favor of defendant plaintiff appeals. Reversed.

W. W. Cotton, James G. Wilson, Welsh Bros., W. B Stratton, and W. H. Gudgel, for appellant.

W. H. Abel and H. W. B. Hewen, for respondent.


This is a contest between two boom companies; their booms being located near the mouth of North river, in Pacific county Wash. The action is in equity, and was commenced by the Nicomen Boom Company for the purpose of restraining the defendant, the North Shore Boom & Driving Company, from constructing a boom upon a portion of the waters of said river and within the limits of territory included in the plat filed by the plaintiff company as required by law. Both companies are organized under the laws of this state, which authorize the organization of corporations for the purpose of catching, booming, sorting, rafting, and holding logs, lumber, or other timber products. In April, 1900, being in due time after the organization of the plaintiff company, it caused to be filed in the office of the Secretary of State of the state of Washington its plat and survey, showing so much of the shore lines and waters of North river and lands contiguous thereto as it proposed to appropriate under the laws of this state. Before beginning the construction of its boom, it submitted to the Secretary of War of the United States a plan of its proposed improvements and a plat of the territory to be occupied thereby, and was by said War Department granted permission to construct a boom within the limits of said river covered by said plat of location. The territory designated by said plat of location embraces the shores of North river, which river is tributary to Willapa Harbor, a bay leading into the Pacific Ocean, and the territory extends from near the mouth of the river on both sides for some distance up the stream. The plaintiff thereupon acquired by purchase such upland and shore land on the left side of said river, reckoning downstream, as was necessary for its use in the premises, and promptly proceeded to erect boom works along the left side of the river, but stopped short of the upper end of the territory covered by its plat of location. The boom was substantially constructed at a cost of about $16,000, and from the time of its erection until this controversy arose it was constantly operated as originally constructed. While the plaintiff has done some work above, yet its boom has never been completed beyond its rudder sheer as originally built. The plaintiff has, however, always expected to extend the boom within the limits of said plat of location as the demands of business might require, and some weeks before the commencement of this action it had ordered piling for the purpose of extending its boom as originally constructed about 1000 feet further up the river. Through some delay, for which plaintiff was not responsible, it did not have this piling upon the ground, and therefore did not commence the actual work of extending the boom until some days after the defendant had commenced to construct its boom as hereinafter mentioned. It was estimated by the plaintiff that the output of logs on North river for the season next following would be largely in excess of the output for the previous year, and that in such case the enlargement of its boom would be necessary for the purpose of receiving and handling such increased output. About this time, in August, 1903, the defendant company was organized, and it also filed its plat and survey in the office of the Secretary of State, showing so much of the water and shore lines of North river and land contiguous thereto as it proposed to appropriate for its boom and driving purposes. It also claims that, before commencing to construct its boom, it secured from the War Department of the United States permission to construct within its said location. The plat of location filed by the defendant in the office of the Secretary of State covered substantially the part of the territory embraced in the plat of the plaintiff lying above the upper end of the sheer boom constructed by plaintiff as aforesaid. The defendant then proceeded to acquire uplands and tide lands within its plat of location on the right side of the river, considered necessary for its use in the operation of its proposed boom; such lands being on the bank opposite to the side of the river occupied by the plaintiff's boom as constructed. On September 4, 1903, the defendant began the driving of piles for the construction of its boom, and erected a line of dolphins within the limits of both said plats of location. Thereupon this action was brought. An emergency restraining order was issued, and afterwards, upon notice, a temporary injunction was granted pending final hearing of the action. It appears that the indemnity bond required by the court under the last-named injunctional order was not given by plaintiff, and thereupon the defendant continued with its work of construction. At the time of the trial the defendant had substantially completed the construction of its proposed boom. The boom of the defendant is so constructed that logs coming down the river intended to reach the plaintiff's boom will necessarily enter the main boom of the defendant. The booms as proposed by the plaintiff and defendant cannot both be constructed. If the boom of the plaintiff should be extended up the river, the passage between its line of dolphins and the dolphins of defendant on the other side of the stream would be so narrow as to block navigation. Moreover, it would be impracticable to operate both booms under such circumstances. If the defendant is permitted to operate its boom as constructed, the boom of plaintiff will receive only such timber from up the river as may escape from the boom of defendant and such as may be transmitted through that boom to plaintiff. The foregoing facts are practically undisputed in the case, as we are advised by the record and the findings of the court, and by such exceptions as were taken to the findings. Exceptions were taken to certain findings embodying facts not stated above and to the refusal to make certain others, and on this appeal errors are assigned thereon. There is, however, no discussion in the brief in reference to these claims of error, and no particular evidence is pointed out in support thereof. We therefore believe we have substantially stated the controlling facts, and that they may be treated as undisputed. After an extended trial and the consideration of much evidence, the court entered judgment denying the plaintiff's application for an injunction and dismissing the action. This appeal is from that judgment.

For reasons hereinbefore stated, we shall not discuss such errors as have been assigned in relation to the court's findings of facts, but shall confine ourselves to the matters discussed in the briefs, all of which involve the correctness of the conclusions of law and the judgment thereon. Boom companies in this state are quasi public corporations, having the power of eminent domain, required by law to file a map of location and to perform booming services for all persons requesting the same. See sections 4378-4394, 1 Ballinger's Ann. Codes & St. The provisions embodied within the above-cited sections comprise the substance of two acts of the Legislature, passed, respectively, in the years 1890 and 1895. Section 4379 contains the following: 'Any corporation hereafter organized for the purpose mentioned in the last preceding section of this chapter shall, within ninety days after its articles of incorporation have been filed, proceed to file in the office of the Secretary of State a plat or survey of so much of the shore lines of the waters of the state and lands contiguous thereto as are proposed to be appropriated for said purpose by said corporation.' Appellant complied with the above and built a boom covering a portion of the territory sufficient to meet the then demands, so far as appears. It becomes necessary to determine the extent of its rights in the remaining territory. It is respondent's position that appellant has lost its rights in the located territory within which it has not actually constructed boom works. In suggesting to this court the principles which appellant claims should be applied in the premises, it argues that an analogy exists between the rights acquired under the filing of location plats by boom companies in this state and those arising from the filing of similar plats by railroad companies. We have been referred to authorities which consider the rights of railroad companies with reference to their location plats, and these authorities we have examined. Under legislative schemes for the location of railroad lines which are initiated by the filing of plats of location, it is held that compliance with the law in that particular secures to the locating company the right to construct and operate a railroad upon such line, exclusive in that respect as to all other railroad corporations and free from the interference of any party. The right to locate its line of road in the place of its selection is delegated to the corporation by the sovereign power. The further right to subsequently acquire in invitum the right of way and necessary lands for operation of the road from the landowners is likewise delegated. The source of the franchise is in the sovereign power, which power confers the franchise upon the corporation as its delegated representative, and the grant is for public, and not for...

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