35 Wash. 662 | Wash. | 1904
The appellant and respondent each own timber lands in Skagit county, through which the east fork of the Samish river flows; the lands of the appellant being higher up the stream than those of the respondent, although the lands abut upon each other. The Samish river is an unmeandered stream, having an average width between banks of some fifty feet, and during the wet season of the year is capable of floating such mill timber as grows upon its bardes, and in its immediate vicinity. In the dry season it is not navigable without artificial aids, having at such time a depth of less than two feet in many places. The respondent, some years pifior to the commencement of this action, had been engaged in logging on his own premises,
In the summer of 1903, the appellant began logging off of its own lands. To facilitate the work it constructed a dam across the river about one and one-half miles above the respondent’s dam. This dam it used, not only to retain logs until they were ready to be sent down the river, but, also, to create a storage basin for water, by means of which it could cause splashes, or artificial freshets, in the stream, and thus drive logs down the same after it became too shallow to float them in its natural state. The appellant operated in this manner: It would put into the bed of the river as many logs as could be readily driven; then it would open the gates of its own dam, and drive the logs down the stream as far as the dam of the respondent j from there, by repeated splashes from both dams, it would drive them to the deep waters of Bellingham Bay, into which the Samish river flows. In these operations the appellant found it necessary to use the respondent’s dam, and it took possession of the same against the consent, and over the protest, of the respondent, and used it as if it were its own property. The appellant, also without the consent and against the will of the respondent, made such use of the respondent’s land bordering the stream as it found necessary and convenient in order to drive its logs. The artificial freshets or splashes, created by means of the dams, drove the logs down the stream in lots or jams, which tore down and washed away the river’s banks, forming a river bed out of what was before tillable land.
To the complaint the appellant answered, denying all its material allegations, and, by way of cross-complaint, alleged that it had gone to great expense to prepare for logging its premises, and that, if stopped by the court, would suffer irreparable injury; further alleging that it had instituted condemnation proceedings against respondent, for the purpose of acquiring the right to use the stream by means of splash dams therein, where necessary. It also alleged that the dam of respondent was an obstruction to navigation in the stream, and therefore a nuisance. It prayed for relief appropriate to matters set up in its answer. The new matter in the answer was put in issue by a reply, and a trial had before the court, resulting in a permanent injunction against the appellant, enjoining it from operating either of the splash dams mentioned, and from in any manner interfering with the possession or use of the respondent’s land. There was a claim for damages made by the respondent for injuries already accrued, but the amount of the damages, if any, the court expressly refused to find, leaving the question as to the amount open to a determination by a jury, in an action to be brought for that purpose. This appeal is from that judgment.
The first contention on the part of the appellant, namely, that it has the right to condemn a right of way along the stream over the respondent’s land for a logging way, is determined against it by the case of Healy Lumber Co. v. Morris, 33 Wash. 490, 74 Pac. 681. It was there held that the
The next contention is that the court erred in enjoining the appellant from floating logs down the stream by means of artificial freshets and splashes. The argument is that the stream is a navigable one, and that it has the right to use it for the purpose.of floating logs, and is liable only for a misuse or abuse of the privilege, and that the evidence fails to show that there was any abuse or misuse in the present case. The stream in question is undoubtedly navigable for floating logs for a part of the year, and during that time the appellant, as well as other’s, may use it for that purpose. But that is not the case before us. The
It is next said that the injunction is too sweeping, in that it prohibits the appellant from operating its dam for any purpose, but a reading of the context of the judgment clearly shows that all that was meant was that the appellant should not operate it to float logs down the stream by means of artificial freshets and splashes, and not that it could not use it for such other purposes as it might find convenient in the conduct of its business.
It is further contended that the respondent is not entitled to relief because his dam is an obstruction to navigation, and he ought not to be allowed to complain of the appellant so long as he was making a misuse of the stream. But if this were a sufficient reason for denying the respondent the right to relief, we fail to find that the contention is supported by the evidence. An officer of the appellant did testify that logs could not be floated down the stream without making use of the respondent’s dam, but he was speaking of floating logs by means of freshets and splashes, and not of floating when the stream would convey them in its natural state. On the other hand, the respondent testified that his dam did not obstruct the river, that he had constructed in it gates through which logs and other timber products could pass whenever the stream was capable of floating them. We think, therefore, that
As we find no substantial error in the record, the judgment. appealed from will stand affirmed.
Mount, Dunbar, and Anders, JJ., concur.