Small v. Harrington

• Decision Date: 31 December 1904
• Citation: 10 Idaho 499,79 P. 461
• Parties: SMALL v. HARRINGTON
• Court: Idaho Supreme Court

79 P. 461

10 Idaho 499

SMALL v. HARRINGTON

Supreme Court of Idaho

December 31, 1904

RULE FOR ADMISSION OF EVIDENCE IN EQUITY CASES-NUISANCE IN NAVIGABLE STREAM MAY BE ABATED AT SUIT OF PRIVATE CITIZEN-ACQUITTAL ON CHARGE OF MAINTAINING NUISANCES NO BAR TO CIVIL ACTION-AMENDMENTS TO PLEADINGS DISCRETIONARY-NONSUIT NOT GRANTED WHEN-SUFFICIENCY OF EVIDENCE TO SUPPORT JUDGMENT.

1. In the trial of equity cases the court is not confined to the strict rules prescribed for the admission of evidence in law cases.

2. An action may be maintained by a private citizen to restrain the construction of a nuisance in the navigable streams of this state, under the provisions of section 3633, Revised Statutes.

3. The trial and acquittal of a party charged with the construction of a nuisance in a navigable stream of this state by a jury in justice's court is no bar to a civil action to restrain the completion of the alleged nuisance.

4. Amendments to pleadings at any stage of the proceedings are largely within the sound discretion of the trial court.

5. A motion for nonsuit should be denied unless the evidence wholly fails to establish a right of recovery.

6. In equity cases the appellate court will examine the evidence with a view to sustain the trial court in its findings and judgment, but will reverse the judgment if the evidence is insufficient to sustain it.

(Syllabus by the court.)

APPEAL from the District Court of Nez Perce County. Honorable Edgar C. Steele, Judge.

Judgment for plaintiff from which and an order overruling a motion for a new trial, defendants appeal. Reversed.

Reversed and remanded. Costs awarded to appellants.

Eugene O'Neill and I. N. Smith, for Appellants.

The legislature of the state, in the absence of congressional action, has control of the navigable streams of the state. (Woodman v. Kilbourne Mfg. Co., 1 Biss. 546; S. C 30 F. Cas. No. 17,978, p. 510.) The legislature of this state having seen fit to authorize the erection of dams and booms in its creeks and rivers with passageways around sufficient and so arranged as to permit timber to pass around, through or over said dam without unreasonable delay or hindrance has legalized the obstruction complained of in this case, the evidence showing a free passage north of the alleged obstructions ample and sufficient at all stages of water that allows of the passage of rafts or logs in the channel west of the piers--north and northward of defendants' mill (Idaho Rev. Stats., sec. 835; Wilson v. Blackbird Creek M. Co., 2 Pet. 245, 7 L.Ed. 412, decision by Marshall C. J.; Pound v. Tuck et al., 95 U.S. 459, 24 L.Ed. 525; McKelvey v. Chesapeake etc. Ry., 35 W.Va. 516, 14 S.E. 267.) The evidence shows no use made of the waters of Clear-water river either unauthorized, unreasonable or unnecessary. (Dutton v. Strong, 1 Black (U.S.), 1, 17 L.Ed. 29, 32; Brown v. Kentfield, 50 Cal. 129; Yates v. Milwaukee, 77 U.S. 497, 19 L.Ed. 986.) In the case at bar the defendants' log boom is at the lower end of the slough east of their mill. The navigation of the stream is exclusively, at this point, for timber, rafts and logs. The structures complained of reach the floatable waters of the slough leaving to the north a passageway that is wide, deep and safe whenever the space west, to the north and northwest of defendants' mill, will permit of the passage of the logs. This is a reasonable use of a part of the stream, authorized, and the alleged obstructions necessary appliances for using the stream. (Stevens' Point Boom Co. v. Reilly, 46 Wis. 237, 49 N.W. 978, 979; Mississippi etc. Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206, 208; Attorney General ex rel. Benjamin v. Manitee River Imp. Co., 42 Mich. 628, 4 N.W. 483, 486; Attorney General v. Evart Booming Co., 34 Mich. 461, 475.) To entitle a private individual to maintain the action he must show special injury and must show that the obstruction was unreasonable. (Farnham on Waters and Water Rights, p. 430; Attorney General v. Stevens, 1 N.J. Eq. 369, 22 Am. Dec. 526; Esson v. Wattier, 25 Or. 7, 34 P. 756, 758.) What the state authorizes it cannot prosecute as a nuisance. (Chope v. Detroit etc. Plank Road, 37 Mich. 195, 198, 26 Am. Rep. 512; Watts v. Norfolk etc. R. Co., 39 W.Va. 196, 45 Am. St. Rep. 894, 19 S.E. 521, 23 L. R. A. 674.) Reasonable use is the touchstone for determining the rights of the respective parties. The products of the forest would be of little value if the riparian proprietors have no right to raise the water by dams and erect mills for the manufacture of those products into lumber. (Gaston v. Mace, 33 W.Va. 14, 25 Am. St. Rep. 848, 10 S.E. 63, 64, 5 L. R. A. 392; Lancey v. Clifford, 54 Me. 487, 92 Am. Dec. 561; Farnham on Waters and Water Rights, 425; Pratt v. Brown, 106 Mich. 628, 64 N.W. 583.)

McFarland & McFarland, for Respondents.

Anything which is injurious to health or is indecent or offensive to the senses or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, stream, canal, or basin or any public park, square, street or highway is a nuisance. (Idaho Rev. Stats., sec. 3620.) The nuisance complained of in this case is both public and private. (Idaho Rev. Stats. secs. 3620-3622; Yolo Co v. City of Sacramento, 36 Cal. 193.) A private person may maintain an action for a public nuisance if it is specially injurious to himself, but not otherwise. (Idaho Rev. Stats., secs. 3633, 4529; Redway v. Moore, 3 Idaho 312, 29 P. 104; Dawson v. McMillan, 34 Wash. 269, 75 P. 807; Crescent Mill & Trans. Co. v. Hayes (Cal.), 8 P. 692; Shirley v. Bishop, 67 Cal. 543, 8 P. 82; Hallock v. Suitor, 37 Or. 9, 60 P. 384; Haines v. Hall, 17 Or. 165, 20 P. 831, 3 L. R. A. 609.) Courts of equity will not be reversed because of the admission of incompetent or immaterial testimony, for the reason that the presumption is that the court in arriving at its decision considered material and competent testimony only. (King v. Pony G. Min. Co., 28 Mont. 74, 72 P. 309; Tague v. John Caplice Co., 28 Mont. 51, 72 P. 297; Metcalf v. Bockoven (Neb.), 96 N.W. 406.)

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

The facts are fully stated in the opinion.

STOCKSLAGER, J.

--On the twentieth day of March, 1903, respondents in this action filed a complaint in the district court of Nez Perce county against the appellants, setting out facts which, in the opinion of the district judge, warranted the issue of an injunction restraining certain acts until the further order of the court. Thereafter, and on the twenty-seventh day of March following, plaintiffs filed an amended complaint. The first paragraph alleges that plaintiffs are copartners, doing business at Lewiston, Idaho under the firm name and style of Small & Emery and that they are engaged in the manufacture, wholesale and retail, of lumber, shingles, etc. Second: That since the twentieth day of August, 1896 plaintiffs have been in the active possession of and operating a sawmill, situated on the south shore of the Clearwater river at Lewiston, and that plaintiffs have operated said mill and are operating it for the purpose of manufacturing lumber and building material for wholesale and retail trade. That ever since said last mentioned dates plaintiffs have owned large quantities of logs on and along said river about eighty miles above plaintiffs' said sawmill; that all logs sawed or manufactured into lumber at said mill have been procured on and along said river and its tributaries at points all the way from forty-five to eighty miles above the site of said mill. That the only means of transportation of logs to said mill is by floating them down said river in rafts or drives.

The third allegation is that the Clearwater river is a navigable stream and that the plaintiffs and the public generally from time immemorial have used the same for the purpose of driving and floating logs, rafts, etc., down the same; that it is usual every spring between the 10th of February and the 1st of July for said stream to rise, caused by the melting snow in the mountains. That it is impracticable and impossible to drive or float rafts or drives of sawlogs from any point fifty miles above the site of said mill down said river only during the rise thereof. That plaintiffs have purchased and contracted about two million feet of logs to be floated down said stream and delivered at their said sawmill as soon as they can be delivered. That said timber last above mentioned is situated about fifty miles above said sawmill that plaintiffs have purchased, and are now purchasing, divers other large quantities of sawlogs which they intend to float down said river when the spring rise comes. That defendants are operating, or claim to be operating a sawmill on the south shore of said Clearwater river about one-fourth mile above the site of plaintiff's sawmill; that there is in said Clearwater river a certain island which commences at a point about a quarter of a mile above the sawmill of defendants and extends down said river to a point a short distance below the sawmill of plaintiffs. That the upper point of said island is very narrow for some distance, but that going down said river it gradually widens until it is about four hundred feet wide; that said upper point is about one hundred and fifty feet from the south shore of said river at and near the site of defendants' sawmill; that the current of said river is divided at the upper point of said island, one part of said current or channel running and flowing along the south shore of said river and the other part of said current or channel flowing on the north side...