Sumner Lumber & Shingle Co. v. Pacific Coast Power Co.

• Decision Date: 08 April 1913
• Citation: 131 P. 220,72 Wash. 631
• Court: Washington Supreme Court
• Parties: SUMNER LUMBER & SHINGLE CO. v. PACIFIC COAST POWER CO. et al.

131 P. 220

72 Wash. 631

SUMNER LUMBER & SHINGLE CO. v. PACIFIC COAST POWER CO. et al.

Supreme Court of Washington

April 8, 1913

Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Action for injunction by the Sumner Lumber & Shingle Company against the Pacific Coast Power Company and other. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions to dismiss.

James B. Howe, of Seattle, and John A. Shackleford, of Tacoma, for appellants.

E. N Steele and Troy & Sturdevant, all of Olympia, for respondent.

MORRIS J.

The respondent company operates a shingle mill near the mouth of the Stuck river. In connection with its mill it maintains a boom, and has included in its boom plat filed with the Secretary of State all of the Stuck river, and the White river from its union with the Stuck river up beyond Buckley. The Pacific Coast Power Company maintains a large electric power plant near Dieringer. To obtain water for generating this power it has obtained, through the purchase of riparian lands or the acquirement of water rights, all of the riparian rights (except as to one small piece that will be hereafter referred to) upon the White and Stuck rivers between points near Buckley and Dieringer, a distance of approximately 18 miles. At the point near Buckley the power company has constructed a dam, and by flume and canal conveys the water from its intake to Lake Tapps, which is used as a reservoir for storage of the water for use at such times as the natural flow would prove insufficient for the purpose required. From Lake Tapps the water is conveyed to the power house, and thence, through a tailrace, it finds its way into the Stuck river. Prior to the incorporation of the power company on January 17, 1908, the Tacoma Industrial Company and the White River Power Company had acquired water rights and lands along the White river, and as early as 1903 engineering and construction work had commenced by one or the other of these companies. At the time of appellant's incorporation these other companies conveyed all their rights and property to it. Appellant then proceeded with the development of the power scheme and the construction of its power plant, and up to the time of trial had expended in construction work about $5,000,000; the plant being completed in October 1911. The respondent was incorporated in July, 1908, and began the construction of its mill, which was completed and started operations in October, 1908. In August, 1910, the shingle company purchased the cedarupon a tract of land located some distance above the dam and intake of the power company, under which contract it was bound to remove the cedar within three years. This land is referred to in the record as the St. Paul land. In August, 1911, subsequent to the commencement of this action, the shingle company agreed to purchase from the Northern Pacific Railway 40 acres of land on White river, between the dam and intake of the power company and the point where the water is returned to Stuck river. This land is referred to as the Northern Pacific land. When the power company acquired all the riparian rights on these rivers in 1908, this Northern Pacific land was not riparian to either river. Subsequently the White river changed its course, and as a result of such change about 250 feet of this Northern Pacific land now abuts on the river. This action was commenced by the shingle company to enjoin the power company from maintaining its dam and diverting the waters of White river at its intake, alleging the waters such diversion would destroy the two rivers as a water highway and prevent the shingle company from getting its timber or that of others to its mill, and destroy its business as a booming company. The court below granted such an injunction, and the power company has appealed.

The appeal presents only questions of law; all the material facts being conceded. In determining the respective rights of these parties to the rivers and the use of their waters, the first point to be decided is the character of these two rivers. They are practically one river, and will be treated as such. Respondent company made its first drive in September, 1908, since which time it has made 14 drives from points below appellant's intake and 4 drives from above the intake. In order to make these drives, it has expended about $700 in improving the river for driving purposes, in removing boulders and other obstructions, making new channels, and other like work. There is much testimony in the record as to whether it is possible to make a drive without the use of the banks, it being conceded, as we understand it, that such drives could not be made without using the bed of the stream; and, while there is no dispute as to the fact that no drive has been made without the use of the banks, the lower court seemed impressed with the opinions of witnesses that it could be done, and found 'that in driving shingle bolts down the said rivers to plaintiff's mill drivers have been accustomed to frequently go upon the banks of the streams above the line of high-water mark, but that it is not necessary so to do, although it is necessary in driving on the said streams for the drivers to go upon the bed of the streams.' Whether or not a drive could be made without the use of the banks, we are unable to say. We think it is better to take the facts as they appear, rather than the opinions of witnesses, given for the purposes of obtaining or defeating relief in litigation. It is clear, however, that it would be impossible to drive these rivers without men and teams assisting in breaking up jams, opening up new channels, and keeping the bolts from lodging on the banks and bars. We not only have the evidence of witnesses as to what was done, but, through the medium of about 200 pictures, we have been able to get a fair view of the difficulties encountered and the obstacles overcome in making a drive. It is apparent that, if dependency was had upon the natural condition of these streams, few, if any, shingle bolts would ever reach respondent's mill. The river is a glacial stream, subject to manterial variation during each summer day on account of the glacial tide. A chart showing the flow is in the record. From this chart it appears that it is not an unusual thing for the flow to increase or diminish nearly 100 per cent. within a day or two. The result of this intermittent flow is that the bolts are lodged all over the bed of the river, which, on account of numerous past floods and erosions, averages nearly 100 feet, and require constant handling to keep them in the drive.

The navigability of streams, or that they possess a capacity for valuable floatage, is a question of fact, and he who asserts it must prove it. To be navigable or floatable in law, the stream must possess such characteristic in its natural state. If artificial means or aids are necessary in making use of the stream to float timber, the stream is not floatable. This rule was first announced by this court in East Hoquiam Boom Co. v. Neeson, 20 Wash. 142, 54 P. 1001, where it was said: 'It is well settled that a stream which can only be made navigable or floatable by artificial means is not a public highway.' The same rule was announced in Griffith v. Holman, 23 Wash. 347, 63 P. 239, 54 L. R. A. 178, 83 Am. St. Rep. 821. In Watkins v. Dorris, 24 Wash. 636, 64 P. 840, 54 L. R. A. 199, a new element of floatability was announced in holding that streams which can, during annually recurring freshets, be used profitably for the floating of logs must be held to be public highways for such purposes; that, while in such streams the title to the beds might be in the riparian owner, such title was subject to an easement in the public to use the stream for floating logs and timber products; and, while such use as a public highway could not be denied, the easement was confined to the stream, and neither the banks nor the soil in such a stream as the one then being considered could be used as an aid to floatability without the landowner's consent, or right obtained by operation of law. We next had occasion to rule on this same question in Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 P. 813,

70 L. R. A. 272, 102 Am. St. Rep. 905, and, following Watkins v. Dorris, it was held that a stream which, in its natural state, is capable of floating shingle bolts after heavy rains and during freshets, which occur with periodic regularity in the spring and fall of each year without the storage of water by dam is a navigable stream for the purpose of floating shingle bolts and other timber products. As determining that such a rule was in this state one of necessity, it was there said: 'The reasons leading to the holding in this state and others, where the timber industry is important, that streams which are navigable in fact for the floatage of timber to market shall be public highways for that purpose are founded upon commercial convenience and necessity, because of the environment of the industry. Much of the timber grows in the mountains, also upon the foothills, and in other localities which are inaccessible by means of transportation facilities without great expense. Nature, has, however, provided numerous streams which flow out from these timber centers, and which are available highways for the carriage of the timber to market. In a locality so situated it seems reasonable that these highways should be used for such purposes. It is true the majority of these streams, being unmeandered, pass over private property. and their beds are owned by the adjacent landowner. But the lands are naturally burdened, if it be a burden, by the streams themselves, with their defined banks and flowing water, and it is not an...