State v. Nicomen Boom Co.

Decision Date11 June 1909
Citation53 Wash. 499,102 P. 394
CourtWashington Supreme Court
PartiesSTATE ex rel. NORTH SHORE BOOM & DRIVING CO. v. NICOMEN BOOM CO. et al.

Mandamus by the State, on the relation of the North Shore Boom &amp Driving Company, against the Nicomen Boom Company and others in which the relator complained that a decree against it was unwarranted and contrary to the mandate of the Supreme Court. Judgment of the court below affirmed.

Chas E. Miller, W. H. Abel, and E. C. Hughes, for relator.

W. W. Cotton, Welsh & Welsh, and James G. Wilson, for respondents.

MORRIS J.

The relator brings this writ, alleging that the superior court of Pacific county has entered a decree unwarranted by and contrary to the mandate of this court as expressed in its decree and remittitur filed in the lower court on January 16, 1906, in the case of Nicomen Boom Company v. North Shore Boom & Driving Company, which case will be found reported in 40 Wash. 315, 82 P. 412, to which reference is hereby made for a more extended review of the facts in controversy between these two companies, and the rulings and decision of this court upon the matters then, and in so far as they may now be, involved. There is must history of litigation between these companies, involving suits at law and in equity in the superior court of Pacific county, in this court, and in the Supreme Court of the United States, growing out of their respective claims to boom sites in the North river, a recital of much of which would be necessary to a proper understanding of this last phase of the controversy as here now presented; but inasmuch as the matters here directly involved are of no particular moment except to the parties litigant, and present for discussion and decision no points of law, except the determination as to whether the decree of the court below is a correct interpretation of the mandate of this court, we do not refer to them, for the sake of brevity, except in so far as it may be necessary to rule upon the questions suggested.

The first error or departure suggested is in the description of the location of respondent company. The decree adjudges that respondent has a valid prior location for booming purposes on the waters of, shore lines of, and lands contiguous to, North river, according to its plat, and describes said location as follows: 'All that portion of North river lying and being in Pacific county, Washington, and more particularly described as follows, to wit: Commencing at the mouth of North river, in section 26, township 15 north of range 10 west of Willamette meridian; thence running up said river and on and along the meanders thereof on both banks thereof, and included between said meanders and the shore lines of the waters and all waters and lands contiguous thereto, and river bed of said North river, to a point where said North river intersects the north line of section 23,' etc. Relator contends that, under this description, respondent's location is made to embrace the entire bed and tide lands of North river, from the meander line on one side to the meander line on the other, including the lands contiguous thereto on both sides. This description is evidently taken from respondent's plat and survey of location, which it had filed with the Secretary of State April 5, 1900, showing so much of the shore lines and waters of North river and lands contiguous thereto, as it proposed to appropriate, and the same plat and survey referred to in the court be low in its findings, and by this court. Reference is frequently made to the location of the respondent as shown by its plat, so that there could be little doubt in the mind of the court below, when it entered its decree, that this court had determined that respondent was entitled to the use and possession of all the territory embracing both land and...

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