State v. Elk Island Boom Co.
| Decision Date | 28 March 1896 |
| Citation | 41 W.Va. 796 |
| Parties | State v. Elk Island Boom Co. |
| Court | West Virginia Supreme Court |
A Loom company may be proceeded against by indictment for erecting and maintaining a dam or other thing in any water course which is a public highway, which clam obstructs the navigation or the passage offish, under section 24 of chapter 44 of the Code.
But such company may except itself from the operation of the statute by showing that such dam or other thing is or has been allowed by what is called the "Boom Law." Bee Code, 1891, Append, p. 1004.
The legislature may, by such general law, confer on individu als and corporations rights in water ways which are not navigable except for canoes., push boats, etc, and, for floating logs, rafts, etc., rights in opposition and paramount to such public right, but the law conferring such private right, so far as it is in derogation of such public right of way, must be strictly construed.
W. E. Haymond for plaintiff in error, cited Code, Append, p. 1004.
Attorney-General T. S. Riley for defendant in error, cited Code, c. 44, s, 24.
Holt, President:
Upon a writ of error to a judgment of the Circuit Court of Braxton county, rendered on the 19th day of December, 1894, against the defendant company, found guilty of a misdemeanor in obstructing the navigation of Elk river.
The indictment is founded on section 24 of chapter 44 of the Code, which reads as follows: "Any dam or other thing in a water course which obstructs navigation or the passage of fish shall be deemed a nuisance unless it be to work a mill, manufactory or other machine or engine useful to the public, and is or has been allowed by law or order of court or by order of the supervisors of the county." This statute, as we see by the use of the term "supervisors," is not of recent enactment, for no such officers have been in existence since the constitution of 1872. They are now called "commissioners of the county court."
By an act called the aBoom Law," passed in 1889, amending and re-enacting former laws on the subject, it was provided, among other things, that any number of persons not less than five might become an incorporated company for the purpose of constructing any boom or booms, with or without piers, dam, or dams, in the rivers, creeks, or other streams within any of the following counties in this state, to wit, Gilmer, Braxton, etc., which may be necessary for the purpose of stopping and securing boats, rafts, logs, masts, spars, lumber, and other timber. See Code, 1891, Append, p. 1004. Under this law, this company became incorporated by certificate of incorporation, duly signed, authenticated, and delivered by the secretary of state on the 26th clay of February, 1889, and has built and is using its boom with one or more dams across Elk river, at Elk Island, at that point a floatable, but not a navigable stream.
The boom law requires such boom or booms to be so constructed as to permit boats, rafts, and other timber, when desired by the owners, to pass them without avoidable delay, and without paying toll, etc. See Boom Law, Code 1891, p. 1011, par. 4. This part of the boom law is found in the latter part of the indictment, and is evidently added merely to specify wherein the dam is unlawful. It is manifest that the indictment is founded on section 24 of chapter 44. This is made plain from its following the peculiar language of the statute, "and did then and there permit said dam to remain for more than 24 hours;" for this section prescribes that, "for every twenty-four hours that a dam or other thing may remain in a water course in violation of this section, the person causing or permitting such violation shall forfeit two dollars," etc. If this view is correct, such specification, if unnecessary, could be but mere surplusage, not making the indictment bad on demurrer, and therefore to overrule it was not error.
It appears that the dam complained of is located across Elk river in Braxton county, at the lower end...
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