Watkinson v. McCoy

• Decision Date: 05 December 1900
• Citation: 63 P. 245,23 Wash. 372
• Parties: WATKINSON et ux. v. McCOY et al.
• Court: Washington Supreme Court

63 P. 245

23 Wash. 372

WATKINSON et ux. v. McCOY et al.

Supreme Court of Washington

December 5, 1900

Appeal from superior court, Skagit county; J. P. Houser, Judge.

Action by M. Watkinson and wife against Pat McCoy and others co-partners as Mossberger & Butler. Judgment for plaintiffs. Defendants appeal. Affirmed.

E. C. Million, for appellants.

McBride & Joiner, for respondents.

DUNBAR, C.J.

This was an action in the superior court of Skagit county, brought by respondents to recover damages from appellants on account of using the Samish river for storing and holding logs, and asking a permanent injunction against the future use of the river for storing and holding logs. Respondents recovered judgment for $175 damages, and obtained an injunction prohibiting the use of the Samish river for holding handling, assorting, or booming logs. A demurrer was interposed to the complaint for the reason that it failed to allege that the injury was caused by negligence or want of care on the part of appellants. The demurrer was overruled and the order of the court overruling the demurrer is made the first assignment of error by appellants.

The complaint alleged that appellants allowed logs to accumulate and remain in large quantities, thereby forming a jam, and obstructing the river, thus causing the water to rise and flood their lands, wash away their dikes, and damage them. We think this was a sufficient allegation. We are not able to see that the cases cited by appellants are in point. They simply establish the doctrine that the public may use navigable or floatable streams for rafting or floating logs, and the law is that if, without negligence or want of proper care on the part of persons floating logs in such streams, damage is sustained, there can be no recovery. But we think that all the authorities agree that the right to float logs down a stream does not carry with it the right to boom logs in said stream, or to obstruct it in any way so that it will either interfere with the rights of other navigators or cause damage to the riparian proprietors. The appellants, then, having been engaged in a business which they had no legal right to engage in, viz. obstructing the stream by booming and rafting logs, are responsible to the riparian owners for such damages as accrue from such illegal acts, whether the appellants were guilty of negligence or not. Hence it is that necessary to allege negligence or want of care in the complaint. The cases cited by respondents on this proposition are exactly in point. In Weaver v. Boom Co. (Minn.) 11 N.W. 114, it was held that the action of a party in booming logs in a river where damages accrued impaired the usefulness of the land of the riparian owner, and constituted a taking of the property, and not a mere consequential injury; that the defendant had no right to take plaintiff's property without his consent, without first paying compensation therefor; and that, not having paid plaintiff compensation the fact that defendant had constructed and maintained its booms with proper care and skill would be no defense to an action by the landowner for the injury to the property. In Hueston v. Same (Minn.) 79 N.W. 92, where certain works erected and maintained by the defendant in the Mississippi river caused a log jam which raised the water of the river so as to overflow and damage the plaintiff's premises, it was held that the ground of defendant's liability was, not that it was negligent in the construction or operation of its works, but that it had no right to thus injure or take the plaintiff's property without first acquiring the right by purchase or condemnation. In Lorman v. Benson, 8 Mich. 18, the rule was announced that the right to raft logs down a stream did not involve the right of booming them upon private property for safekeeping and storage. The rights and responsibilities of drivers of logs on navigable rivers is discussed at great length and with great logical clearness by Judge Christiancy, of the supreme court of Michigan, in Booming Co. v. Jarvis, 30 Mich. 308, where it was held that persons exercising the public right of navigating a stream by running logs down it, or collecting, dividing, and stroing them, are bound to do it with due regard to the concurrent rights of riparian owners to the use of their lands; and they cannot, for the sake of rendering the business of thus navigating the stream more safe, convenient and profitable to themselves, raise the water so as to flow the lands of such owners, and damage thus...