Spaulding Logging Co. v. Independence Imp. Co.

• Decision Date: 19 January 1903
• Parties: SPAULDING LOGGING CO. v. INDEPENDENCE IMP. CO.
• Court: Oregon Supreme Court

71 P. 132

42 Or. 394

SPAULDING LOGGING CO. v. INDEPENDENCE IMP. CO.

Supreme Court of Oregon

January 19, 1903

Appeal from circuit court, Polk county; R.P. Baise, Judge.

Action by the Spaulding Logging Company against the Independence Improvement Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wm. D Fenton and A.C. Woodcock, for appellant.

F.T Griffith and J.E. Hedges, for respondent.

BEAN J.

This is an appeal from a decree enjoining the use of Luckiamute river, a stream flowing through the counties of Benton and Polk, by defendant, under an alleged franchise acquired by it in pursuance of the provisions of an act of the legislative assembly approved February 27, 1901 (Sess.Laws 1901, p. 266; Bel. & C. Ann.Codes & St. § 4890 et seq.). The only question for our consideration is the constitutionality of the act. Section 1 thereof provides that any individual or association of individuals residing in the state, or corporation organized therein, may secure the exclusive right to regulate, manage, and control the floating transportation, and booming of logs, lumber, timber, and wood upon any river or stream or part thereof within the state that is not navigable for general commercial purposes, by complying with the provisions of the act. Section 2 requires parties desiring to take advantage of the act to cause to be made an accurate survey of the river or stream or the part thereof to which they desire to acquire such right or privilege, and prepare a map of same, which must be filed with the county clerk, together with a written declaration setting forth generally their purpose respecting the stream. Section 3 provides that within 90 days after the filing of the map work shall be commenced to render the stream suitable for the purpose intended, and that such work shall be prosecuted with all reasonable diligence until the same shall be completed, and the stream rendered capable, according to its capacity, for floating and transporting logs, lumber, and timber thereon. Section 4 defines the kind and character of work contemplated by the act. Section 5 declares that, when the work shall have been completed, such stream shall be a public highway for the purposes stated, and shall be open to the use of all, persons, under such reasonable rules and regulations and uniform rate of charges as may be adopted and established by the individual, association, or corporation acquiring the right. Section 6 provides for the purchase or condemnation of riparian rights and the land bordering on the stream. Section 7 declares that, as soon as the work of improvement is completed, a certificate to that effect shall be filed with the county clerk, specifying therein the schedule of rates to be charged for the use of the stream and thereafter it shall be open to public use, under such reasonable rules and regulations as may from time to time be adopted. Section 8 provides that the party improving the stream as in the act provided shall have the exclusive management and control thereof, and may lease rent, or transfer his or its right therein to the same extent and with like effect as any other property. Section 9 gives the individual, association, or corporation complying with the act authority to establish and adopt rules and regulations governing the use of the stream, and to make such schedule of charges therefor as shall be fair and just. Section 10 requires that the stream shall be kept open and in good repair, and a failure to do so shall work a forfeiture of the privileges granted. Section 11 provides that, when any applicant has filed a map and declaration, as provided in section 2, no conflicting map or declaration shall be filed until after the expiration of 90 days; and section 12 declares what streams shall be deemed navigable within the meaning of the act. It is contended that this act is unconstitutional and void, for the reason that the subject thereof is not expressed in the title, nor does the title truly represent...