51 Wash. 164 | Wash. | 1908
— This is an action for damages occasioned by the alleged wrongful obstruction of a portion of the channel of the Puyallup river. The removal of the obstructions is also sought to be effected by the action, in order that the original flow of the river may be re-established.
The defendant Tide Water Lumber Company is the owner of a lumber mill, on the westerly or left side of the Puyallup river, not far above the mouth of the stream where, it flows
The answer denies many of the averments of the complaint, and affirmatively alleges that the washing away of the plaintiffs’ land has been due to the action of high water in the river in times of flood, and not to any diversion of the channel by the defendant. The cause was tried by the court without a jury, and resulted in a judgment for the plaintiffs in the sum of $11,250, as damages; also, in a decree declaring that the original and natural east bank of the river in front of the plaintiffs’ property corresponded in general with the meander line of the government survey, and that the original and natural west bank of the river in front of the defendant’s property corresponded in general with the delineation thereof as shown on the plat of Indian Addition to the city of Tacoma, which plat is of record in the auditor’s office of Pierce county, Washington. The decree also requires the Tide Water Lumber Company to forthwith remove from the river all piling, bulkheading, dirt, logs, debris, and obstructions of every kind and description, placed by it in the river extending beyond the natural bank thereof, as above defined; that the work of removal should be commenced before the 17th day of February, 1908, and thereafter diligently prosecuted and finished by the 17th day of May, 1908. It also provided that, in the event the work of removal is not commenced within the time specified and thereafter diligently prosecuted, then the plaintiffs may remove the obstructions at the expense of said company, and further judgment for the expense of such removal may hereafter be entered upon motion of the plaintiffs, with proper proofs of same, the cause being continued until the obstructions are removed or until the further
The findings of the court are in substantial accord with the averments of the complaint. It was found that, from time immemorial until appellant commenced to build in the river, there was a sand bar or island in the river in front of the lands of appellant, extending in length about two hundred feet and in width from fifty to seventy-five feet; that the river channel between the sand bar and the natural bank or line of appellant’s property is from fifty to one hundred feet in width; that this channel at extreme low tide contained but little water, but at half tide a rowboat could be rowed through it, and at high tide the river ran entirely over the sand bar and extended from bank to bank some three hundred and fifty feet in width. It was found that appellant had driven the piling and bulkheading and had placed the obstructions as alleged, had excavated a log pond below, and had thrown the dirt and debris upon the sand bar, thereby raising it along its entire length, so that the river, even in flood period, does not submerge it; that these acts of appellant cut off about one-third of the former flow of the river, and that the river then commenced to compensate itself by washing the opposite or right bank; that the bank constituting the river front of respondents’ premises had washed away to a small extent prior to the time the respondents acquired title, and the bank and lands since then have washed away at least to the extent of two and one-fourth acres additional, which amount has been severed from respondents’ land and swept down the river; that at the time of the trial the bank had been washed back one hundred feet or more along respondents’ entire frontage. The value of the land washed away was found to be $5,000 per acre, and judgment was given accordingly.
The findings of the court are vigorously attacked by appellant. There was much testimony introduced at the trial, and there was also conflict therein, but there was undoubtedly
The conclusions of law naturally follow. This is a navigable, tidal river. One-third of its waters and of the force of its current swept between the sand island and the front of appellant’s property. At low tide there was not much water in this part of the channel, but at half tide it could be navigated with a rowboat, and at full tide the waters rose above the entire island so that a boat could then pass over it. At ordinary high tide the water in the channel reached a depth of as much as six feet. Respondents’ as riparian proprietors on this river, have the right to prevent the obstruction of the flow or the diversion of its waters, and to have the same continue to flow in a natural way by their lands. This is a right inseparably annexed to the soil itself. Crook v. Hewitt, 4 Wash. 749, 31 Pac. 28; Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 38 Pac. 147, 26 L. R. A. 425; Benton v. Johncox, 17 Wash. 277, 49 Pac. 495, 61 Am. St. 912, 39 L. R. A. 107.
Appellant argues that the land in front of its premises is tide land, the title to which it has taken steps to acquire from the state; but it was held in Dawson v. McMillan, 34 Wash. 269, 75 Pac. 809, that any sale of tide lands by the state must be subject to the paramount right of the public in the navigable waters thereof, and confers no right to obstruct navigation therein. The evidence shows that the channel in front of appellant’s property is a navigable one in fact, although it may not be navigable at low tide, which
The judgment in all essential particulars is affirmed, but it will be necessary to modify it in respect to the time for the removal of the obstructions. The judgment allowed twenty-one days from its date for the commencement of the work of removal, and required that it be thereafter diligently prosecuted and finished within three months from the commencement of the work. By reason of the appeal, that time has long since passed. The cause is remanded with instructions to enter a supplemental order as a modification of the original judgment, to the effect only that the same length of time shall be allowed for the commencement and completion of the work respectively, after the date of such order, as was formerly allowed with reference to the date of the original judgment. Tile modification shall not affect respondents’ recovery of their costs on appeal.
Rudkin, Dunbar, Mount, and Crow, JJ., concur.
Fullerton, J., took no part.