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

Decision Date13 April 1909
Citation52 Wash. 564,101 P. 48
CourtWashington Supreme Court

Appeal from Superior Court, Pacific County; A. E. Rice, Judge.

Action by the North Shore Boom & Driving Company against the Nicomen Boom Company, in which defendant demanded affirmative relief. From a judgment for defendant, plaintiff appeals. Affirmed.

Chas E. Miller and W. H. Abel, for appellant.

W. W Cotton, Welsh & Welsh, and James G. Wilson, for respondent.


This is an action in replevin, brought by the appellant against the respondent to recover possession of 180 sawlogs, or about 360,000 feet. The complaint alleged in brief that on the 18th day of January, 1906, the plaintiff was in lawful possession of the property described as above; that the defendant on that day wrongfully and unlawfully and by force and violence took said property from the possession of plaintiff; that demand was made by the plaintiff; that the defendant unlawfully withholds; and judgment is demanded for the possession of the said sawlogs, or $1,500 their alleged value. The affidavit sets up the fact that the plaintiff was the owner and maintained a certain boom in North river, in the county of Pacific, for the purpose of catching, sorting, rafting, and booming logs, etc.; that these logs described in the complaint were consigned to it for booming purposes, etc. The answer is an extremely long one, denying certain paragraphs of the complaint, but admitting that defendant was in possession of the logs described, for an affirmative defense alleging that the defendant was a corporation, duly organized, and entitled under the law to catch, boom, sort, and raft logs, timber etc., and setting forth a description of the land occupied by the boom which it had constructed and was entitled to operate, alleging that on the 4th day of September, 1903, the plaintiff unlawfully commenced the construction of a boom on the lands and waters which the defendant was entitled to occupy; that the defendant commenced an action in the superior court against the plaintiff to restrain it from erecting, maintaining, or operating the boom, etc.; that judgment was rendered in the superior court against the plaintiff in that case, the defendant in this; that upon appeal to the Supreme Court the judgment was reversed, and the cause remanded to the superior court with instructions to enter a judgment in accordance with the opinion handed down by the Supreme Court; that said judgment, in short, was to the effect that the land in controversy was properly used and maintained by the Nicomen Boom Company, the defendant in this action, and adjudged and decreed that the boom of the Nicomen Boom Company and that of the North Shore Boom & Driving Company could not exist together; that the North Shore Boom & Driving Company was unwarrantably interfering with the Nicomen Boom Company's location; and that in its booming operation the said North Shore Boom & Driving Company must be restricted to territory outside of the territory of the Nicomen Boom Company; that thereafter the judgment and decree and remittitur of the Supreme Court of the state of Washington was sent down to the office of the clerk of the superior court of the state of Washington, and duly filed, and judgment was entered in accordance with the judgment rendered by the Supreme Court; that it was decreed that the North Shore Boom & Driving Company had no right whatsoever to erect, maintain, keep, or operate any boom on the Nicomen Boom Company's said location described in the judgment, and that it was forever enjoined, restrained, and prohibited from driving any timber of any kind upon the location which was occupied by the Nicomen Boom Company for the purpose of booming or driving logs; that it was further adjudged that the North Shore Boom & Driving Company had no right to maintain or to operate that certain boom structure heretofore constructed by it on the aforesaid location of the Nicomen Boom Company; that it was further adjudged that the North Shore Boom & Driving Company be, and it was thereby, ordered, required, and directed to immediately open said boom and to immediately begin to take up and remove certain piling, timbers, boom, and other structures, and all other structures which it had theretofore erected and constructed on the Nicomen Boom Company's location in North river in Pacific county, Wash. The answer set up that, notwithstanding such judgment, the plaintiff had continued to boom logs, to the annoyance and detriment of the defendant; avers that on or about the 18th of January, 1906, defendant requested the plaintiff to open its said boom and permit the logs of plaintiff and all other persons, which were in said boom, to pass through, and that the plaintiff refused so to do; that thereupon the defendant did open said boom, and thereupon the logs which are described in the complaint came down into the boom of the defendant; that the defendant caught and held the said sawlogs and offered to assort, boom, and raft said sawlogs on the payment by the plaintiff of the lawful boomage charges, to wit, 60¢ per 1,000 feet, but that plaintiff refused to pay the defendant any boomage charges, and denied the right of defendant to catch in its boom, logs, etc.; alleging the number of logs in feet of timber in said booms. Judgment was demanded for the sum of $216, the boomage price of the logs, and also an additional sum of $500. A reply put in issue many of the affirmative allegations of the complaint, and a supplemental answer was...

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