Winsor v. Hanson

• Decision Date: 25 October 1905
• Citation: 40 Wash. 423,82 P. 710
• Parties: WINSOR v. HANSON.
• Court: Washington Supreme Court

82 P. 710

40 Wash. 423

WINSOR v. HANSON.

Supreme Court of Washington

October 25, 1905

Appeal from Superior Court, Mason County; O. V. Linn, Judge.

Action for an injunction by H. A. Winsor against Nels Hanson. From a judgment in favor of plaintiff, defendant appeals. Modified.

L. R. Byrne and Troy & Falknor, for appellant.

T. P Fisk, for respondent.

RUDKIN J.

The plaintiff is the owner of a tract of land in Mason county in this state. The defendant is the owner of a tract of land adjoining the land of the plaintiff on the north. A certain stream called 'Dry Bed' flows in a southerly direction, immediately east of the land owned by the defendant and through the land owned by the plaintiff. The stream is practically dry during the summer months, but during the rainy season it flows a large volume of water, and brings down considerable quantities of driftwood, which forms in jams and spreads out over the adjacent lands. Some time prior to the commencement of this action, the plaintiff placed a boom across the stream on his own land, at a point about 300 feet below the defendant's land. His ostensible purpose in constructing this boom was to intercept the drift at that point, so that the same could be removed and burned thus preventing it from injuring the meadow land owned by plaintiff at points lower down the stream. The object the plaintiff may have had in view is only material in so far as it tends to explain his motives. Prior to the commencement of this action, the defendant entered upon the land owned by the plaintiff, and destroyed the boom placed across the stream and claims the right so to do, and threatens to continue to enter upon the plaintiff's land and remove all obstructions placed in the stream, unless enjoined from so doing. The defendant bases his right to remove the obstructions on the ground that such obstructions will cause the waters of the stream to back up and overflow his land, to his great damage and injury; that the acts of the plaintiff in obstructing the stream constitute a nuisance which he has the right to abate.

The plaintiff brought this action for an injunction to restrain the defendant from removing the obstruction which he had placed in the stream. The defendant in his answer justified his acts on the grounds above stated, and filed a cross-complaint for an injunction restraining the plaintiff from obstructing the stream in the manner indicated. At the trial the court granted an injunction as prayed by the plaintiff, and dismissed the cross-complaint of the defendant. From this judgment the defendant appeals.

The first assignment of error relates to the admission of testimony tending to show the practicability of intercepting and consuming the driftwood at the point in question. As stated above, the object the respondent may have had in view and the practicability of his scheme has no bearing upon the merits of the case. The ultimate question for consideration is the effect, if any, which the obstruction of the stream at this point will have upon the lands of the appellant. This is an equity case, however, and all improper testimony will be disregarded by this court.

The next contention is that the court should have dismissed the action because the controversy had ceased. The basis of this contention is that the boom placed in the stream by the respondent was carried out by high water between the time of commencement of this action and the trial. This particular boom was not the subject-matter of the controversy. The respondent insisted upon his right to obstruct the stream at a point on his own land, and the appellant...