State v. Superior Court for Cowlitz County

• Decision Date: 01 March 1915
• Docket Number: 12344.
• Citation: 84 Wash. 252,146 P. 609
• Court: Washington Supreme Court
• Parties: STATE ex rel. DAVIS v. SUPERIOR COURT FOR COWLITZ COUNTY et al.

146 P. 609

84 Wash. 252

STATE ex rel. DAVIS v. SUPERIOR COURT FOR COWLITZ COUNTY et al.

No. 12344.

Supreme Court of Washington

March 1, 1915

Department 2. Certiorari to Superior Court, Cowlitz County; Wm. T Darch, Judge.

Certiorari by the State of Washington, on relation of A. J. Davis against the Superior Court for Cowlitz County and others, to review a judgment entered in proceedings by Diking District No. 2 of Cowlitz County to determine damages for the taking of property and the benefits which would result from a public improvement. Judgment of the superior court reversed, and cause remanded.

See also, 143 P. 168.

Hayden, Langhorne & Metzger, of Tacoma, for appellant.

Magill, McKenney & Brush, of Kelson, for respondents.

MAIN J.

This proceeding was instituted by the petition of diking district No. 2 of Cowlitz county, Wash., acting through its board of diking commissioners under section 4091 et seq., Rem. & Bal. Code. The purpose of the proceeding was to determine the damages for lands and property rights taken, and to assess the benefits which would result from the proposed improvement. The improvement was for the purpose of reclaiming, or preventing the overflow of, lands within the diking district which would be caused by the recurring high waters of the Columbia, Cowlitz, and Coweman rivers. For the purpose of carrying out this improvement, it was necessary that dikes be constructed, and that dams be erected upon or across the Coweman river.

The relator here, A. J. Davis, owned a shingle mill upon or near the west bank of the north fork of the Coweman river, or the Coweman slough, as it was referred to by some of the witnesses. This north fork of the river or slough was navigable for the purpose of floating logs and shingle bolts, and was used by Davis for that purpose. The erection of the dams proposed would cause the water to cease to flow through this fork of the river. Davis was the owner of Block B in Wallace's addition to the town of Kelso; and it was upon this block that the shingle mill stood. According to the plat of Wallace's addition, the boundaries of that addition were specified as follows:

'Wallace addition to Kelso begins on the east boundary of the Northern Pacific Railway 228.2 feet east of the northwest corner of the V. M. Wallace D. L. C. in section 34, township 8 north, of range 2 west of the Willamette meridian; running thence east on the north boundary of said claim 1,948.3 feet to the Coweman slough; thence with the meanders of said slough [various courses and distances]; thence leaving the slough [various courses and distances], to the point of beginning.'

Upon the trial Davis claimed that the east boundary line of block B was the center of the Coweman slough. The district claimed that this boundary was a few feet back from the bank of the slough, and was a line staked out by the surveyor at the time of platting Wallace's addition. During the trial Davis offered evidence in an attempt to show that the line staked out by the surveyor would meet the water's edge at the time when the slough was running bank full. The jury returned a verdict assessing Davis' damages at the sum of $5,000. Thereafter motions for judgment notwithstanding the verdict and for a new trial were interposed by the diking district. The motion for judgment notwithstanding the verdict was granted. Davis brings the case here by certiorari.

There are two questions of primary importance in this case: First, was the east line of Wallace's addition to the town of Kelso the thread of the Coweman slough or the line run upon the bank thereof by the surveyors? and, second, if the legal effect of the description in the plat is to fix the boundary at the center of the slough, did Davis waive his right to claim thereunder by the fact that he offered testimony attempting to show that he was a riparian proprietor upon a different theory, and failed in his proof?

I. As already stated, the Coweman slough was navigable for the purpose of floating logs and shingle bolts, but not in the general commercial sense. Where a river is navigable in a special sense, as here, but not in a general sense, the title to the bed of the stream is in the owner of the adjacent land, and not in the state, under section 1, art. 17, of the Constitution.

In Watkins v. Dorris, 24 Wash. 636, 64 P. 840, 54 L. R. A. 199, speaking of a stream similar in character to that here under consideration, it was said:

'The stream must therefore be held to be a public highway for the purpose of floating logs and timber to market. Being a public highway for such purpose, what are the relations of the landowner to the stream? Thomas Dorris is the owner of the land on both sides of the stream. If such a stream as this is included in the provisions of section 1, art. 17, of the Constitution of Washington, then the state is the owner of the bed of the stream below ordinary high-water mark. We do not believe, however, that the said constitutional provision was intended to include streams of the character of this one, but only such as are navigable for general commercial purposes. This stream is of such a character that its use as a public highway is restricted to one purpose, viz., that of floating logs or timber; and we think a distinction must be drawn between such streams and those which are highways for general trade and commerce. The title to the bed of the stream, therefore, passed from the government to the landowner, but it is subject to the right of the public to use the stream for floating logs and timber.'

If the eastern boundary of Wallace's addition was the center of the stream, it is not questioned but that Davis took to that boundary when block 'B' was conveyed to him. If block B does extend over the bank and into the river, then Davis was a riparian owner, and, as such, had a right to the natural flow of the waters of Coweman slough in their natural and accustomed channels without diminution or alteration, subject only to the same right and use in every other riparian proprietor. A deprivation of such right would entitle him to damages. Upon this question, in Kalama Electric Light & Power Co. v. Kalama Driving Co., 48 Wash. 612, 94 P. 469, 22 L. R. A. (N. S.) 641, 125 Am. St. Rep. 948, it was said:

'The respondent, being a riparian owner upon the Kalama river, has, as such, valuable property rights which cannot be taken or damaged for the public use without compensation. One of these is its right to a continuance of the natural and ordinary flow of the

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