54 Wash. 510 | Wash. | 1909
Action by Charles H. Hulet and Maggie Hulet, his wife, against the Wishkah Boom Company, a corporation, to enjoin the defendant from so operating its splash dams and boom as to obstruct navigation of the Wishkah river and injure respondents’ lands, and to recover damages. From a judgment and decree granting an injunction and awarding damages, the defendant has appealed.
The case comes to this court on the pleadings, and the findings made by the trial court. The assignments of error present the single question whether the respondents are entitled to the injunctive relief, and the damages awarded. The sufficiency of the complaint is challenged, but the record does not show that the appellant attacked it by demurrer. This being true, we will, in the absence of the evidence which might have amplified and aided the complaint, confine ourselves to the single question whether the findings support the judgment and decree.
Appellant’s first contention is that obstructions to the respondents’ navigation of the river, if they existed, were a public nuisance, the continuance of which could not be abated by an injunction obtained in an action maintained by a private individual; that respondents as private individuals cannot maintain this action for the reason that they are similarly situated with many others upon the river, and fail to allege special injury to themselves. The trial court found that the river was the highway which constituted the respondents’ means of ingress and egress to and from their lands. It does not appear from the findings that they did or did not have any other highway, but it does appear that they had this one which was totally obstructed. This finding establishes the fact that the respondents were specially injured, which fact entitled them to maintain an equitable action to enjoin the appellant from causing the obstructions. Carl v. West Aberdeen Land & Imp. Co., 13 Wash. 616, 43 Pac. 890; Smith v. Mitchell, 21 Wash. 536, 58 Pac. 667, 75 Am. St. 858; Dawson v. McMillan, 34 Wash. 269, 75 Pac. 807.
“Regarding the obstruction of the stream as a public nuisance it necessarily follows that to enable an individual to maintain an action he must show a special injury to himself, different in kind from that suffered by the public at large. But the owner of a wharf or other improvement on a stream does suffer an injury different in kind from that suffered by the public when the value of his wharf is destroyed by the closing of the stream. Furthermore, a nuisance may be both public and private. And the closing of a stream may be a public nuisance so far as it interferes with the public right of navigation, and a private nuisance to owners of land along the bank whose navigation rights are thereby cut off.”
In Dawson v. McMillan, supra, it was found that a certain navigable slough, extending from lands of the plaintiff to Bellingham Bay, subject to the ebb and flow of the tide, was used by the plaintiffs and other loggers in carrying their timber products to market; that the plaintiffs had no other feasible or practicable way to carry their timber to market; and that the navigation of the slough was obstructed by the defendant. This court, in passing upon the identical question now raised by the appellant, said:
“Appellants’ last position is based upon the claim that the United States is the only party having a right to prevent the obstruction, and that respondents are not injured until they are denied free passage. It has been frequently held by this court that, where, by a public nuisance, a private party is specially damaged, his damage differing in kind and degree from that of the general public, he may maintain an action to abate such nuisance. Carl v. West Aberdeen Land Co., 13 Wash. 616, 43 Pac. 890; Smith v. Mitchell, 21 Wash. 536, 58 Pac. 667, 75 Am. St. 858; Griffith v. Holman, 23 Wash. 347, 63 Pac. 239, 54 L. R. A. 178, 83 Am. St. 821; Sultan W. & P. Co. v. Weyerhauser Timber Co., 31 Wash. 558, 72 Pac. 114; 21 Am. & Eng. Ency. Law (2d ed.), p. 444. By findings Nos. 4, 5, and 7, it is shown that respondents are specially damaged, and also that the obstruction exists, and that respondents are prohibited from using the highway and from removing their timber products to market.”
Appellant complains of the order commanding it to remove, abate, and clear away the logs and other timber products which create jams, drifts, and obstructions in the river and interfere with its navigation by respondents. It insists that the findings are not broad enough to establish the fact that its boom or splash dams have caused such obstructions, but that the findings do show that they were caused by loggers over whom appellant has no control, who deposited the timber products in the stream, constructed the boom stick, and operated the splash dams. We think the findings show these acts to have been performed by the loggers under appellant’s direction and control. The situation disclosed by the findings, indicates that the appellant’s boom has not sufficient capacity to collect, store and care for all the logs consigned to it, and that instead of properly enlarging its boom and keeping the river open for navigation, it has endeavored to detain the logs by use of the boom stick which the loggers placed in the stream. The appellant could prohibit the loggers from using its splash dams to such an extent as will prevent the driving of more logs than it can care for in its boom. The findings show the appellant to be so closely identified with the loggers in these operations upon the river, that if the latter are not its servants or employees, they are at least joint tort feasors with appellant, making them and appellant jointly or severally liable.
The judgment is affirmed.