205 F. 328 | W.D. Wash. | 1913
This suit is brought, charging the defendant with having diverted the waters of the Skookumchuck river from their natural channel, causing the overflow of and damage to plaintiffs’ land; further, with having encroached upon plaintiffs’ lands with its tracks, the embankment upon which they were placed, and the riprapping protecting the same from the waters of such stream. The prayer of the complaint is for a mandatory injunction, directing the restoration of the waters of the river to their natural channel, an injunction against its further diversion, decree compelling the removal of defendant’s tracks, riprapping, and other property from plaintiffs’ land, an injunction against further trespass, and for damage caused to the present time.
The cause is now before the court upon the merits, after the taking of testimony. The work done by the defendant was to straighten the
Plaintiffs knew of the work being done by the railroad in straightening the river channel, which work took some months, and made no complaint on account of it at the time the work was being done. The testimony shows the cost of this work was $33,000, and that it would cost $78,000 to restore the stream to its old bed. Plaintiffs’ prayer for damages suffered is for $7,500.
In straightening the track, defendant encroached upon and occupied, to a small extent, an unproductive portion of plaintiffs’ land, amounting to about 1% acres. The evidence tends to show that the riprapping done in this work crowded the waters and current of the stream over against the opposite bank in such a manner as to wash away other portions of plaintiffs’ land.
At the time this work was being done, plaintiff John Bannse told the men at work on the roadbed to keep off his property, and at one time to get off his property. Pie did not take this matter up with any officer of the railroad, or take any legal steps to stop the trespass. Plaintiffs had negotiations with the right of way agent of the defendant, there being at least three interviews. Offers were made by the .agent, and prices given by this plaintiff, but no agreement was reached. The work done by the railroad was in the fall of 1909, and this suit was brought in the spring of 1910.
Plaintiffs rely upon the following authorities: Rigney v. Tacoma L. & W. Co. and City of Tacoma, 9 Wash. 576, 38 Pac. 147, 26 L. R. A. 425; Judson et al. v. Tide Water Lbr. Co., 51 Wash. 164, 98 Pac. 377; Durga v. Lincoln Creek Lum. Co., 47 Wash. 477-480, 92 Pac. 343; Burk v. Simonson, 104 Ind. 173, 2 N. E. 309, 3 N. E. 826, 54 Am. St. Rep. 304; Fenton & Thompson R. Co. v. Adams, 221 Ill. 201, 77 N. E. 531, 112 Am. St. Rep. 171; Pine et al. v. Mayor, etc., City of New York, 112 Fed. 98, 50 C. C. A. 145, reversed 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820; Cox v. Bernard, 39 Or. 53, 64 Pac. 860; Roberts v. Vest, 126 Ala. 355, 28 South. 412; Chestatee Pyrites Co. v. Cavender’s Creek Gold Min. Co., 118 Ga. 255, 45 S. E. 267; Goodrich v. Georgia, etc., Co., 115 Ga. 340, 41 S. E. 659; Webster et al. v. Harris et al., 111 Tenn. 668, 69 S. W. 782, 59 L. R. A. 324.
Defendant relies upon the following authorities: New York City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820; Roberts v. Northern Pacific, 158 U. S. 1, 15 Sup. Ct. 756, 39 L. Ed. 873; Northern Pacific Ry. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157.
■'From these authorities it is apparent that the time at which a party appeals to a court of equity for relief affects largely the character of the re*330 lief which will be granted. If one, aware of the situation, believes he has certain legal rights, and desires to insist upon them, he should do so promptly. If by his declarations or conduct he leads the other party to believe that he does not propose to rest upon such rights, but is willing to waive them for a just compensation, and the other party proceeds to great expense in the expectation that payment of a fair compensation will be accepted and the right waived — especially if it is in respect to a matter which will largely affect the public convenience and welfare — a court of equity may properly refuse to enforce those rights, and, in the absence of an agreement for compensation, compel him to submit the determination of the amount thereof to an impartial tribunal.” New York City v. Pine, 185 U. S. 93, at page 103, 22 Sup. Ct. 592, at page 596 (46 L. Ed. 820).
See Roberts v. Northern Pacific Ry., 158 U. S. 1, 15 Sup. Ct. 756, 39 L. Ed. 873; Northern Pacific Ry. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157; 22 Cyc. 779.
Neither side, therefore, waiving a jury, the question of damages will not be determined (22 Cyc. 969), unless plaintiffs file a consent, within 20 days after the filing of this opinion, to the determination by the court, without a jury, upon the evidence already taken, of all questions of damage growing out of the acts, of which complaint is made. Failing in this, the cause-will be transferred to the law side of the court, to be there determined. New York v. Pine, 185 U. S. 93, at page 108, 22 Sup. Ct. 592, 46 L. Ed. 820; Equity Rule No. 22, Rules 1912 (198 Fed. xxiv, 115 C. C. A. xxiv).