North Shore Boom Driving Company v. Nicomen Boom Company

Decision Date23 February 1909
Docket NumberNo. 107,107
Citation212 U.S. 406,53 L.Ed. 574,29 S.Ct. 355
PartiesNORTH SHORE BOOM & DRIVING COMPANY, Plff. in Err., v. NICOMEN BOOM COMPANY
CourtU.S. Supreme Court

The Nicomen Boom Company, hereinafter called the plaintiff, commenced an action against the North Shore Boom & Driving Company, hereinafter called the defendant, in the superior court of the state of Washington, Pacific county, to enjoin the defendant from building a boom in the North river (a river wholly within the boundary of the state of Washington), within the locality designated in the plaintiff's plat and survey for its boom.

The action was founded upon the allegations that the plaintiff was the first to file its plat, and that it commenced to build its boom under the statutes of the state of Washington, and that the defendant was threatening to build its boom within the locality marked out and designated by the plaintiff in its plat or survey filed with the secretary of state, although its boom had not actually been completed the whole distance indicated in such plat or survey.

The defendant denied the various allegations of the plaintiff, and the parties went to trial, which resulted in a judgment for the defendant, dismissing the plaintiff's complaint. The plaintiff appealed to the supreme court of the state, where the judgment was reversed and the cause remanded to the superior court, with directions to enter judgment enjoining the defendant from building the boom within the location marked on the plat or survey for the plaintiff's boom. See the opinion of the state court, 40 Wash. 315, 82 Pac. 412, showing plainly and in full the grounds of the decision.

The defendant has sued out a writ of error from this court and brings the judgment here for review.

Messrs. Charles E. Miller, John M. Thurston, W. H. Abel, James B. Howe, and Samuel H. Piles for plaintiff in error.

[Argument of counsel from page 407-409 intentionally omitted.]

Messrs. James G. Wilson, W. W. Cotton, and Welsh & Welsh for defendant in error.

[Argument of counsel from Page 409-410 intentionally omitted.]

Statement by Mr. Justice Peckham:

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

This is a contest between two boom companies incorporated under the laws of the state of Washington, authorizing the organization of corporations of this kind.

In April, 1900, the plaintiff, after its organization, filed in the office of the secretary of state of Washington its plat or survey, showing so much of the shore lines and waters of the North river and lands contiguous thereto as it proposed to appropriate under the laws of the state. Before beginning its boom it submitted to the Secretary of War of the United States the plan of its proposed improvement and a plat of the territory to be occupied thereby, and was granted permission by the War Department to construct a boom within the limits of the river covered by the plat. The plaintiff proceeded to erect its boom 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 has been operated from the time of its erection as originally constructed; and plaintiff has always expected to extend the boom within the limits of the plat of location as the demands of business might require. Some days before the commencement of the actual work of extending the plaintiff's boom, the defendant commenced to construct its boom within the limits of the original plat of the plaintiff.

The defendant was organized in 1903, and filed its plat and survey in the office of the secretary of state of the state of Washington, and it alleges that, before commencing to construct its boom, it secured from the War Department of the United States permission to construct the boom within its location. The boom of the defendant, if constructed according to its plans, would cause logs coming down the river, intended to reach the plaintiff's boom, to 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, within the limits of its plat and survey, the passage between its line of dolphins and the dolphins of the 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 intended, the boom of the plaintiff will receive only such timber from up the river as may escape from the boom of the defendant, and such as may be transmitted through that boom to the plaintiff. These facts are practically undisputed and are found in the record and findings of the court.

The Federal government has taken no part in the dispute between the two corporations. The laws of the state provide for proceedings to build booms, and the defendant contends that it complied with those statutes, and had also obtained from the chief clerk of the War Department a written statement, dated March 23, 1903, stating that the War Department would not interpose any objection to the construction and maintenance of the boom in the manner proposed by the defendant, so long as it did not unreasonably interfere with navigation.

Several laws have been passed by Congress, contained in the river and harbor appropriation acts,...

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13 cases
  • Pembroke v. Peninsular Terminal Co.
    • United States
    • Florida Supreme Court
    • January 16, 1933
    ... ... the Peninsular Terminal Company against Andrew J. Pembroke ... and wife. From an ... wharf, pier, dolphin, boom, weir, breakwater, bulkhead, ... jetty, or other ... lands thereunder, including the shore or land between high ... and low water marks ... See, ... also, North Shore, etc., Co. v. Nicomen Broom Co., ... 212 ... ...
  • Northlake Marine Works, Inc. v. State Dnr
    • United States
    • Washington Supreme Court
    • January 23, 2006
    ...or joint jurisdiction with the state government over that portion of the construction. N. Shore Boom & Driving Co. v. Nicomen Boom Co., 212 U.S. 406, 412, 29 S.Ct. 355, 53 L.Ed. 574 (1909) (citing Cummings v. Chicago, 188 U.S. 410, 23 S.Ct. 472, 47 L.Ed. 525 (1903)). In Cummings, a case fro......
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    • United States
    • Kentucky Court of Appeals
    • June 2, 1936
    ... ... In the ... north-east corner of the city is the pumping station of ... shore. The plaintiffs' evidence showed that there is an ... Green and Barren River Navigation Company was chartered. Acts ... of 1834, p. 497; Acts of ... North Shore Boom & ... Driving Co. v. Nicomen Boom Co., 212 U.S ... ...
  • U.S. v. Ferrer
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 23, 1980
    ...permits are required; concurrent state and federal jurisdiction is acceptable under § 403. See North Shore Boom & Driving Co. v. Nicomen Boom Co., 212 U.S. 406, 29 S.Ct. 355, 53 L.Ed. 574 (1909). Thus, appellant must establish that the Puerto Rican permit requirement was inconsistent with, ......
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