Watkins v. Dorris

• Decision Date: 18 April 1901
• Citation: 24 Wash. 636,64 P. 840
• Parties: WATKINS et al. v. DORRIS et al.
• Court: Washington Supreme Court

64 P. 840

24 Wash. 636

WATKINS et al. v. DORRIS et al.

Supreme Court of Washington

April 18, 1901

Appeal from superior court, Wahkiakum county; H. S. Elliott, Judge.

Action by E. H. Watkins and others, as partners, against Thomas Dorris and another. From a judgment in favor of defendants plaintiffs and defendant Thomas Dorris appeal. Affirmed.

J Bruce Polwarth and George Noland, for appellants.

Sol. Smith, for respondents.

PER CURIAM.

This action was instituted by appellants, who compose a partnership doing a logging business under the firm name of the Elochoman Logging Company, in the county of Wahkiakum state of Washington. Appellants are the owners of certain timber lands situate upon and adjacent to the stream named and designated as the 'Elochoman River,' or 'Elochoman Creek,' and have for some time been engaged in cutting and removing from said premises the merchantable spruce and fir timber thereon, and by means of said stream have been transporting the saw logs cut from said timber to tide water, for the purpose of booming and rafting the same there for transportation to the market. The action was brought against Thomas Dorris and William Dorris respondents here; and said Thomas Dorris is also an appellant. Said Thomas Dorris is the owner of certain other lands lying upon both sides of said stream and below the lands of appellant, the Elochoman Logging Company. During the month of November, 1897, the said logging company, having theretofore placed about 1,500 logs in said stream, undertook to run the same down the stream where it passes through the lands of said Thomas Dorris. At a point in said stream where it passes through the lands of said Thomas Dorris is a large rock, so situated and imbedded that, when said appellants' logs were carried down by a freshet then occurring, their passage was obstructed by said rock, a jam was formed, and the waters of the stream were thereby backed and caused to overflow the lands of said Thomas Dorris. The said appellants then sought to break said jam, and alleged in their complaint that the only way of approaching thereto was from the banks of said stream, over the lands of the respondents Dorris, and that said respondents prevented the appellants from making such approach and from entering upon said lands for said purpose, and had threatened appellants with personal violence if they should undertake to go upon said lands for said purpose. They further alleged that the force of the water at said point was insufficient to break said jam, and that it could only be done by men aided by steam or horse power operated upon the banks of said stream, on the lands of the said respondents. They also alleged that the value of the logs held by said jam was $8,000, and that they had been damaged in the sum of $2,000 by the conduct of the Dorrises in preventing them from going upon said lands to break said jam, and prayed judgment for said sum, and also prayed for a temporary restraining order preventing the respondents from in any manner interfering with the appellants' entering upon the banks of said stream for the purpose of breaking said jam, and also preventing them from interfering with the removal of the rocks from the bed of the stream which were obstructions to the passage of said logs. Upon the showing made, the court granted the temporary restraining order, without notice, and fixed a date in the order when respondents should, after notice, show cause why a temporary injunction should not issue pending the final hearing of the cause. A hearing was had at said time, and the court continued the temporary injunction until the final hearing of the cause. Assignments of error are urged by the appellant Thomas Dorris as to the course of the court at the time of the hearing when the temporary injunction was continued, but, in view of the subsequent history of this case, we do not deem it necessary to discuss them here, as will appear later in the course of this opinion. Thereafter the respondents answered the complaint, and admitted the fact that the log jam existed, but alleged that the same was caused by the insufficient capacity of said stream to float logs, and by the mismanagement and unskillful manner of appellants in driving said logs, together with their gross negligence and want of care, and utter indifference to the injury resulting therefrom. They deny that said rock was in the bed of the stream, and aver that it was then, and for many years theretofore had been, imbedded in and formed a part of the west bank of said stream, where it was a valuable protection to the bank of the stream, and also formed a portion of the fence inclosing the cultivated lands of said Thomas Dorris, and was situated upon his land, and formed a part thereof. The respondent Thomas Dorris alleges that he is the sole owner of said land; that said stream is not a meandered stream or a public highway, and is not navigable where it flows through the said lands; that the said stream was duly surveyed and disposed of by the United States, long before the state of Washington was admitted into the Union, under and by virtue of the land laws of the United States, and is a private stream, not of sufficient size and volume at any stage of the water, in its natural state, to be of public utility, or to float saw logs to market, when it flows through the lands of said Thomas Dorris, or above said lands, but is a short mountain creek, depending upon the rainfall for the volume of its waters. The reply puts in issue the material averments of the answer.

At the trial of the cause a large number of witnesses were examined. The statement of facts filed in this court contains more than 400 pages of transcribed testimony. As an advisory matter, the court submitted to a jury the questions of fact propounded by the interrogatories hereinafter set forth, and after due deliberation the jury returned their answers thereto as severally set forth below. The said interrogatories and answers are, respectively, as follows, to wit: '(1) Is the Elochoman river, above the lands of Thomas Dorris, a highway suitable for the running of logs? Answer. Yes. (2) Have the lands of Thomas Dorris been injured by the jam of November, 1897? Answer. Yes. (3) Was that jam the result of the want of ordinary care and prudence on the part of the plaintiffs? Answer. Yes. (4) What amount of land was damaged, and what is the value thereof? Answer. 2.62 1/2 acres; $168.75. (5) Did the defendant Thomas Dorris refuse at any time before the jam was broken to allow the plaintiffs or their agents to enter upon and break said jam, and, if so, what was the extent and value of the land damaged at the time of such refusal? Answer. No.'

Assignments of error as to the court's instructions to the jury are urged by counsel upon both sides, but we think the instructions substantially embody the law of the case. The court followed the findings of the jury upon the facts submitted to them, and thereafter, with other findings entered the following findings of fact: '(3) That the Elochoman creek is about 18 miles...