Sholin v. Skamania Boom Co.

• Decision Date: 11 December 1909
• Citation: 56 Wash. 303,105 P. 632
• Parties: SHOLIN v. SKAMANIA ROOM CO.
• Court: Washington Supreme Court

105 P. 632

56 Wash. 303

SHOLIN v. SKAMANIA ROOM CO.

Supreme Court of Washington

December 11, 1909

Department 1. Appeal from Superior Court, Skamania County; W. W McCredie, Judge.

Action by Olif Sholin against the Skamania Boom Company. Judgment for plaintiff, and defendant appeals. Affirmed.

George S. Shepherd and George E. O'Bryon, for appellant.

A. L Miller and R. M. Wright, for respondent.

RUDKIN C.J.

On the 19th day of May, 1906, the plaintiff entered into a contract with the United States, acting through the Postmaster General, to transport the mail from Collins by way of Home Valley and Carson to Stevenson and return six times each week for the term of four years from the 1st day of July, 1906. At the time this contract was entered into and for some considerable time thereafter, the usual and only route of travel from Carson to Home Valley was along a public highway which crossed Wind river, a rapid mountain stream, on a public bridge constructed and maintained by Skamania county. The defendant is a corporation organized under the laws of this state, and at the times herein mentioned was engaged in driving logs and other timber products down Wind river. On the 19th day of October, 1906, the defendant so negligently conducted its logging operations that the bridge in question was carried away and destroyed. On the 17th day of November following, the defendant paid to Skamania county the sum of $1,000 in full settlement for any and all loss or damage sustained by the county by reason of the destruction of the bridge. After the destruction of the bridge, the plaintiff was compelled to carry the mail down the Columbia river by boat, and thence overland, by a circuitous route, to the several post offices and places of delivery. The present action was instituted to recover the special damages resulting to him from the destruction of the bridge. The case came on for trial on the 6th day of February, 1908 but, after a portion of the testimony had been introduced the court sustained an objection to oral testimony tending to show the terms and conditions of the mail contract between the plaintiff and the government. A continuance was thereupon granted on the plaintiff's application to enable him to procure a certified copy of the mail contract which was on file in the post office department. A second trial was had on the 8th day of November, 1908, resulting in a judgment in favor of the plaintiff in the sum of $100, from which this appeal is prosecuted.

When the case was called for trial, the appellant objected to a trial by jury, for the reason that the respondent did not at or before the time the case was called to be set for trial serve upon the opposite party or his attorney, and file with the clerk of the court, a statement of himself or attorney that he elected to have the case tried by jury, as required by the act of March 6, 1903 (Laws 1903, p. 50, c. 43). In answer to a similar complaint in Knapp v. Order of Pendo, 36 Wash. 601, 79 P. 209, we said: 'It is within the discretion of the court to permit a demand for a jury to be made after the case is called to be set for trial, or to submit the issues of fact in a case to a jury of its own motion, and no error can be predicated upon its ruling in that regard.' To the same effect, see Fleming v. Wilson, 39 Wash. 106, 80 P. 1104; Hart v. Cascade Timber Co., 39 Wash. 279, 81 P. 738. The granting of a continuance of the first trial is also assigned as error. This ruling was clearly within the discretion of the trial court. Had the court refused the continuance, the respondent could have taken a voluntary nonsuit, and the appellant would have gained nothing by such a course except a recovery of its costs. Perhaps the court would have imposed this burden upon the respondent as a condition to the granting of a continuance had the appellant requested it, but no such request was made.

The remaining assignments of error go to the sufficiency of the complaint and to the sufficiency of the evidence to make out a cause of action. Upon this question there is a conflict of authority, both within and without this state. All the authorities agree that a private action for the obstruction of a public highway is only maintainable by those who suffer some particular loss or damage therefrom beyond that suffered by the general public. Interference with a common right does not of itself afford a cause of action to the individual, but special or particular damages consequent upon such interference does. There is little difficulty instating the general rule, but, when we look to the decided cases to ascertain what constitutes particular or special damages within the meaning of the rule, we find a hopeless conflict. Any attempt to review the authorities or to extract from them a rule which might be said to be sustained by the weight of authority would be both futile and fruitless. The extreme view on the one side is perhaps taken in Massachusetts, where it has been held in numerous cases that individuals suffering very considerable loss and damage from the obstruction of navigable streams and public highways have no right of action, because their loss differs in degree, and not in kind, from that sustained by the general public. Many of the cases from that state may be found cited in Jones v. St Paul, etc., Ry. Co., 16 Wash. 25, 47 P. 226, upon which the appellant chiefly relies. The extreme view on the other side is perhaps taken in Maine, where it has been held that a person stopped by an obstruction in a public highway while returning home with a loaded team, and compelled to return by a more circuitous route, suffered special damages, and had a right of action against the wrongdoer. Brown v. Watson, 47 Me. 161, 74 Am. Dec. 482. A review of many cases bearing upon this general question will be found in Viebahu v. Crow Wing Co. Com'rs, reported in 96 Minn. 276, 104 N.W. 1089, and in the note to that case in 3 L. R. A. (N. S.) 1126. The rule is thus stated in Elliott on Roads and Streets (2d Ed.) § 669: 'As a general rule, no person can maintain...