State v. Superior Court for Chehalis County

• Decision Date: 15 January 1908
• Citation: 48 Wash. 277,93 P. 423
• Parties: STATE ex rel. BURROWS et ux. v. SUPERIOR COURT FOR CHEHALIS COUNTY et al.
• Court: Washington Supreme Court

93 P. 423

48 Wash. 277

STATE ex rel. BURROWS et ux. v. SUPERIOR COURT FOR CHEHALIS COUNTY et al.

Supreme Court of Washington

January 15, 1908

Certiorari on the relation of O. P. Burrows and others, to review preliminary decrees of the superior court of Chehalis county adjudging a public use in condemnation proceedings by Grays Harbor Boom Company against the relators. Affirmed.

Ben Sheeks and J. B. Bridges, for respondents.

CROW J.

On March 28, 1907, the Grays Harbor Boom Company, a corporation instituted in the superior court of Chehalis county three separate proceedings to condemn certain property rights, the first being against O. P. Burrows and wife, the second against J. O. P. Lownsdale and wife and Ladd & Tilton, and the third against F. K. Hiscock. After preliminary decrees were entered adjudging a public use, all of the defendants upon stipulation, applied to this court in this one proceeding for a writ of certiorari, and the writ having been issued, the decrees are now before us for final review.

The respondent, the Grays Harbor Boom Company, was incorporated under the laws of Washington in 1893, with authority to conduct a booming business in the Humptulips river and elsewhere. Within the statutory time it filed in the office of the Secretary of State a plat or survey of so much of the shore lines of the waters of the Humptulips river and lands contiguous thereto as it proposed to appropriate, and without unreasonable delay proceeded to construct and operate a boom. Thereafter the relators, claiming it was interfering with certain of their private property rights as riparian owners, instituted equitable actions to enjoin such interference. Decrees in their favor were affirmed in Burrows v. Grays Harbor Boom Company (Wash.) 87 P. 937, Lownsdale v. Grays Harbor Boom Company (Wash.) 87 P. 943, and Hiscock v. Grays Harbor Boom Company (Wash.) 87 P. 943. Later this court, upon motion, entered orders staying enforcement of the several decrees until the respondent could institute and prosecute condemnation proceedings. The Humptulips river, which empties into Grays Harbor, is, for a distance of three miles above its mouth, subject to a tidal flow, which reaches and passes the lands of relators. Within the Lownsdale lands is a navigable tide-water slough, known as 'Jessie's slough,' connecting with the river, which the respondent has used, and is now using, in its booming operations. It alleges that its boom commences about the middle of the river near the southern boundary of Lownsdale's land, and extends northerly, occupying that portion of the stream lying between its center and the west bank; that the Jessie slough, which is not meandered, connects with the west side of the river, and is practically included in the boom; that the occupancy and use of the slough is necessary for receiving, storing, and sorting logs, which will interfere with its navigation; that in so using the slough it will be necessary for servants of the boom company to also use 10 feet of its westerly bank by walking thereon when handling, driving, booming, and sorting logs, such use of the west bank not to be exclusive, but concurrent with that of the owners of the land.

The evidence shows that at the time of the hearing the upper end of the boom as then constructed was immediately below the land of the relators Burrows and wife; that the United States government had granted the respondent permission to extend its boom further up the river past the Burrows land, leaving for navigation an open channel of 50 feet in width on the Hiscock or easterly side of the river; that the respondent was at the time perfecting arrangements to so extend its boom; that the purpose of such extension is to aid navigation; that heretofore logs coming down the river on freshets, in great quantities, not controlled by the respondent, would first fill the boom, and then back up and fill the upper channel of the river opposite the lands of Burrows on the west and Hiscock on the east, and that the boom, when extended and enlarged, will avoid this difficulty, by receiving all logs and timber products, and permitting the eastern channel of the river to remain open for navigation to the width of 50 feet. By these proposed extensions and improvements respondent is endeavoring to avoid any continuance of the acts enjoined in Burrows v. Grays Harbor Boom Company, and the other cases above mentioned, and it contends that such riparian and property rights of the relators as it will hereafter need it is now seeking to condemn.

As against the relators Lownsdale and wife and Ladd & Tilton respondent asks that it be permitted to condemn and appropriate the right to occupy with saw logs and other timber products that portion of the river which is between its westerly bank and the boom, also to interfere with the relator's shore rights and right of access to and from their lands, and to appropriate the right to occupy the whole of the waters of the slough within their lands, together with a right of way along its westerly bank as above mentioned. As against the relators Burrows and wife, respondent asks that it be permitted to appropriate and condemn the right to occupy with saw logs and other timber products that portion of the Humptulips river opposite their lands, and the right to interfere by so doing with their right of navigation of that portion of the river so occupied, with their right of access to and from their lands, and with their appurtenant shore rights and privileges. As against the relator Hiscock it asks that it be permitted to appropriate and condemn the right to occupy the waters of the river with logs and other timber products consigned to it where the river borders upon his land, and the right to interfere with his right of navigation and access to and from his lands, and his appurtenant shore rights and privileges.

The relators' first contention is that the preliminary decrees are void, or at least erroneous, for the reason that the descriptions of the property sought to be taken are too indefinite within the requirements of the eminent domain statute. Section 5637, Ballinger's Ann Codes & St. The petitions, after alleging the facts as to the present and proposed construction of the boom, further allege that the lands of the several relators are contiguous to the river. They describe the lands by reference to government surveys and public plats now of record, and then allege that it will be necessary for respondent to occupy the river and interfere with shore rights and privileges of the several relators appurtenant to said lands, as above mentioned. Respondent thus seeks to condemn certain definite rights with which it must necessarily interfere, but asks no other property of the relators...