77 Wash. 8 | Wash. | 1913
This is an action to enjoin the defendants from interfering with the plaintiff in floating shingle bolts and other forest products in Segelson creek, a tributary of the Stillaguamish river. Segelson creek flows through land owned by the defendants. The complaint alleges that it is a floatable and navigable stream for shingle bolts and other forest products, and that the defendants had forbidden plaintiff to use the stream for floating its shingle bolts and other forest products in that part of the stream which flowed over their land. A decree was entered in harmony with the prayer of the bill. The defendants have appealed.
The appeal presents two questions: (1) A denial of two challenges to the qualification of the trial judge; and (2) Do the findings of fact support the decree?
When the case was called for trial, the appellants filed a motion and affidavit for a change of judges, in pursuance of Laws 1911, p. 617 (3 Rem. & Bal. Code, § 209-1 et seq.). Prior to this application, a show-cause order had been issued against the appellants. Thereafter a hearing was had upon the respondent’s application for a temporary injunction. The appellants appeared and resisted the application. After the heai’ing and prior to the filing of the motion and affidavit in question, the court granted a temporary injunction. Upon this state of the record, the motion was not timely. State ex rel. Lefebvre v. Clifford, 65 Wash. 313, 118 Pac. 40.
After the respondent had rested its case, appellants called the president of the respondent, who testified that the law firm of which Judge Bell, the trial judge, was a member, had represented the respondent in two lawsuits. He further
Upon the merits of the case, the court found:
“(5) That said Segelson creek is a floatable and navigable stream for shingle bolts and other forest products during freshets regularly recurring for a period of between three (3) and four (4) months in the spring and summer, and during a period of from two (2) to three (3) months during*11 the fall of each year; that during said recurring freshets said Segelson creek for periods of several days together contains water varying from eighteen (18) inches deep to three (3) or four (4) feet; that said quantity of water is ample, and sufficient to float shingle bolts and other forest products through said creek into the Stillaguamish river and that said shingle bolts and other forest products can be so floated in said Segelson creek to the Stillaguamish river without using the banks of said stream.
“(6) That all the timber has been logged off from said premises of defendants, and that when said premises were logged certain windfalls, brush, tree tops and some logs were left in said Segelson creek; that both the plaintiff and the defendant have removed said brush, logs and 'windfalls from said stream; that said stream would float shingle bolts before the removal of said brush, logs, windfalls and other forest debris from said stream, but the same could not be driven to the Stillaguamish river without the removal of said forest debris.”
The findings support the decree. The test of the navigability of a stream is, Was it navigable in its natural state? If it was, neither accidental nor intentional obstructions which were not there in its natural state will impair or destroy its legal navigability. Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 Pac. 813, 102 Am. St. 905, 70 L. R. A. 272; State ex rel. United Tanners Timber Co. v. Superior Court, 60 Wash. 193, 110 Pac. 1017; Olson v. Merrill, 42 Wis. 203: Treat v. Lord, 42 Me. 252, 66 Am. Dec. 298; 25 Cyc. 1566. The windfalls and other obstructions referred to in the findings created an artificial condition. The removal of these obstructions merely restored the stream to its natural state.
There is a further assignment that the findings and judgment are contrary “to the law and the evidence.” No exceptions were taken to the findings of fact and this precludes a review of the evidence. Berens v. Cox, 70 Wash. 627, 127 Pac. 189.
The decree is affirmed.
Crow, C. J., Ellis, Main, and Chadwick, JJ., concur.