Powell v. Springston Lumber Co.

• Decision Date: 11 December 1906
• Citation: 12 Idaho 723,88 P. 97
• Parties: A. P. POWELL, Appellant, v. THE SPRINGSTON LUMBER COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

88 P. 97

12 Idaho 723

A. P. POWELL, Appellant, v. THE SPRINGSTON LUMBER COMPANY, a Corporation, Respondent

Supreme Court of Idaho

December 11, 1906

DISTRICT COURT RULES-ORDER SUSTAINING MOTION IN DISTRICT COURT-PRESUMED TO HAVE BEEN MADE ON SOME GROUND STATED IN MOTION-INJUNCTION-MUST ISSUE WHEN SUMMONS ISSUES-NAVIGABLE STREAMS-RIGHTS OF THE PUBLIC THEREON.

1. The supreme court will not take judicial notice of the rules adopted by the district judges of the several districts of the state.

2. Where a rule of court in force in the district court is relied upon on appeal, it must be embodied in the record and presented to the appellate court the same as any other matter brought up by the record.

3. Where a moving party designates certain specified grounds in his motion, and the trial court grants the motion without specifying any ground upon which the same was granted, the appellate court will assume, as a matter of course, that the motion was granted upon some ground named therein, and if the order cannot be sustained on any ground named in the motion it will be reversed.

4. Where the district judge granted a temporary injunction at the time of filing the complaint and the issuance of the summons, and thereby directed the defendant to appear at a time and place specified to show cause why the injunction should not be continued in force pendente lite, and the sheriff was unable to find the defendant corporation's statutory agent or anyone upon whom service of process might be made, and returned the writ unserved, and the judge thereupon issued a second order in the same form and to the same effect as the first, with the exception that the time fixed for the defendant to appear and show cause was extended to a more remote period, and such second order was returned unserved for the same reason given for failure to serve the first, and a third order was granted in the same form and to the same effect, except that the time for appearance was extended still further, and this latter order was duly served, the fact that no affidavits were filed prior to the issuance of the second and third orders is not a sufficient or legal ground for dissolving the injunction as being in violation of section 4289, Revised Statutes.

5. ID.-In such cases the legal discretion of the court has already been invoked and exercised in the first instance, and the subsequent orders amount in substance and effect to nothing more than an extension of the time in which the defendant is required to appear and show cause.

6. Navigable streams are public highways over which every citizen has a natural right to carry commerce in the mode manner and by the means best adapted to serve the purposes of the commerce in which he is engaged. In so doing he must have due consideration and reasonable care for the equal right of every other citizen upon the waters of such stream.

7. The construction and use of booms is a necessary adjunct to the floating of logs, and the right to float logs down a stream carries with it the necessarily resultant right of employing some reasonable means for intercepting them at their destination.

8. Under the provisions of section 835 of the Revised Statutes it is made unlawful for any person to construct a dam or boom on any creek or river of this state without connecting therewith a sluiceway, lock or fixture sufficient to permit timber to pass around, through or over the same without unreasonable delay or hindrance.

9. One who constructs a boom or obstruction "across" a navigable stream of this state so as to "prevent" others driving logs past such boom or obstruction is liable in an action to abate the same as a nuisance and for damages caused by its maintenance.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Kootenai County. Hon. Ralph T. Morgan, Judge.

Action by the plaintiff for an injunction restraining defendant from maintaining a boom and obstruction across the Coeur d'Alene river and for damages. Temporary injunction issued, and thereafter dissolved on motion of the defendant. Plaintiff appealed from the order dissolving the injunction. Reversed.

Reversed and remanded. Costs awarded to appellant.

John P. Gray and A. A. Crane, for Appellant.

Under the facts as set forth in the complaint and under the statutes of this state, the complainant was entitled clearly to the relief for which he asked. (Rev. Stats., sec. 835.)

All obstructions to the free use of navigable streams are prohibited by the law of the land. (Angell on Watercourses, 554; Hart v. Albany, 9 Wend. 571, 24 Am. Dec. 165.)

Any obstruction of a channel of a navigable stream which entirely impedes the natural and free passage of logs is prima facie unlawful and wrong. (Watts v. Tattabawassee Boom Co., 52 Mich. 203, 17 N.W. 809.)

A boom company chartered to take and hold logs or persons desiring its services is bound to see that as to other log owners having lumber intended to be driven below the dam, the passage is not obstructed by the boom, and they are not justified in stopping by their boom any lumber except that which is destined to be stopped there. (West Branch Boom Co. v. Dodge, 31 Pa. 285.)

Riparian owners cannot, though they may own both sides of a navigable stream, construct booms entirely across the stream, since such booms would obstruct navigation. (Stevens Point Boom Co. v. Reilly, 46 Wis. 237, 49 N.W. 978; Kretzschmar v. Meehan, 74 Minn. 211, 77 N.W. 41.)

In the absence of statutory authority there is no right to block a navigable stream by booms. (Enos v. Hamilton, 24 Wis. 658; United States v. Bellingham Bay Boom Co., 176 U.S. 211, 41 L.Ed. 437, 20 S.Ct. 343.)

Courts of equity have jurisdiction to protect the rights of persons infringed upon by an obstruction to a navigable stream where the remedy at law is inadequate. (Carl v. West Aberdeen Land & Imp. Co., 13 Wash. 616, 43 P. 890; Stevens v. Point Boom Co. v. Reilly, 46 Wis. 237, 49 N.W. 978.)

McClear & Burgan, for Respondent.

The allegations of the complaint do not state a prima facie right for the injunction, and do not allege any violation of the rights contemplated by section 835, Revised Statutes, and even though they were violated, the plaintiff has a plam, speedy and adequate remedy at law under section 836, Revised Statutes.

Section 4289, Revised Statutes, states: "The injunction may be granted at the time of issuing the summons, upon the complaint, and at any time afterward, before judgment, upon affidavits. This of itself seems to be enough to show that the court could only grant an injunction after summons was issued upon affidavits showing that the same cause of action existed at the time the injunction was asked for as existed at the time the complaint was filed and summons issued. (Falkenberg v. Lucy, 35 Cal. 52, 95 Am. Dec. 76; Smith v. Sterns Rancho Co., 129 Cal. 58, 61 P. 662.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

STATEMENT OF FACTS.

This is an appeal from an order dissolving a temporary restraining order issued upon the complaint. The plaintiff alleges that the defendant is a corporation maintaining and operating a sawmill at Springston, on the Coeur d'Alene river, in Kootenai county; that the plaintiff resides at Harrison at the mouth of the Coeur d'Alene river, and is engaged in the timber business; that the plaintiff is the owner of a large quantity of logs that have been cut on the Coeur d'Alene river and its tributaries above Springston, which he desires to float and drive down the Coeur d'Alene river to the mills at Harrison. He also alleges that he is engaged to drive a large quantity of saw timber belonging to other persons and corporations down the river for a consideration. It is also alleged that the Coeur d'Alene river is a navigable stream and serves an important public use, and has been used for floating timber and sawlogs and for other general purposes for a great many years. Paragraph 4 of the complaint charges the defendant with wrongfully willfully and unlawfully obstructing the stream, and preventing either the free or reasonable use thereof for purposes of floating logs and timbers, or any other purpose, and is as follows: "That the defendant wrongfully, willfully and without any right to do so, has created, maintained and constructed across the said Coeur d'Alene river at the said town of Springston, which is situated about three miles from the mouth of said Coeur d'Alene river, a series of obstructions so as to prevent the floating of said logs of plaintiff or any logs down said stream past the said point where said obstructions are situated. That said obstructions consist of a boom and certain piling driven along the shore and in the river, by means of which obstructions all the logs coming down said river are stopped and taken from their natural course down the current of said stream and diverted and held in said boom of defendant." It is also alleged that at the time of the commencement of the action defendant wrongfully and unlawfully detained in its boom one hundred and twenty-six sawlogs and one boom stick belonging to the plaintiff, and that the defendant, by obstructing the stream and preventing the floating of logs past its boom, is causing plaintiff a damage of twenty dollars each day, and that such obstruction has been maintained from the first day of March, 1906, to the date of filing the complaint on June 28, 1906. Plaintiff prays for an injunction restraining and enjoining the defendant from further maintaining any obstruction in the stream so as to prevent the passage of logs and timber and for damages. Upon the commencement of this action and upon the verified complaint therein, the court issued a temporary injunction enjoining and...