35 Wash. 487 | Wash. | 1904
The respondent brought this action against appellant to procure an injunction against an alleged threatened interference with the use of a stream for the floating of shingle bolts. The stream is known as the West Dork of Woods creek. It commences at the foot of Lake Boesiger, in Snohomish county, and flows therefrom in a southwesterly direction, passing through the lands of both appellant and respondent Bespondent owns an extensive body of timber lands adjacent to' the lake and stream, and owns the lands upon both sides of the stream at its source. Appellant’s lands lie below those of respondent. The respondent has constructed, and has heretofore operated, a dam at the lower end of the lake, for the purpose of storing the waters within the lake to be used in flooding the stream in order to accelerate the movement of shingle bolts. The complaint charges that appellant threat
The answer denies that the stream is navigable, and alleges that, by reason of the storing of the water in the lake> the flow of the stream is at times entirely stopped, and that at other times respondent suddenly and without warning releases the stored water, and that it runs down and overflows the lands of appellant adjacent to the stream, Washes away the soil, and destroys appellant’s roads and landings constructed for the movement of his own shingle bolts; that appellant is engaged in removing the cedar timber from his own land, and that by reason of respondent’s obstruction of the natural flow of the water, it is impossible for him to run his shingle bolts down said stream. The answer prays for damages, and for an injunction perpetually restraining respondent from interfering with the natural flow of the water in the creek, and from flooding appellant’s lands.
The cause was tried before the court without a jury. "Findings of facts and conclusions of law were entered, and the decree provides that appellant shall be perpetually enjoined from in any manner obstructing or interfering with the navigation of said stream, or the driving of respondent’s shingle bolts across the lands of appellant. It is further provided that appellant shall be restrained from in any manner interfering with or preventing respondent’s employes from going upon the banks of said stream for the purpose, only, of breaking jams of bolts which may occur,
The first alleged error is that the court permitted any testimony to be introduced in support of the complaint. This contention is based upon the theory that the complaint shows that the stream in question is not navigable or floatable for shingle bolts, in its natural condition. It is expressly averred that the stream is navigable for said purpose, but it is argued that other allegations have the effect to negative such fact. The following averment is pointed out as destroying the force of the positive allegation as to navigability:
“That it (respondent) has at great expense constructed-a dam across the foot of Lake Roesiger for the purpose of storing water, thereby furnishing a sufficient supply of water in the aforesaid stream to conveniently and rapidly float shingle bolts and other timber products down the same to the mill of this plaintiff.”
We think the conclusion which appellant draws does not necessarily follow when the two averments are taken together. The quoted allegation amounts to no more than the statement that respondent’s own convenience, in the moving of its shingle bolts, is better served by the storing of the water and the operation of the dam. But it does not say that the stream is not floatable in its natural state. The court did not err in overruling the objection to the introduction of any testimony upon the above mentioned ground.
A further point raised under the objection to the introduction of any testimony is that an attempt is made in the complaint to plead an estoppel against appellant, but that the allegations are insufficient to charge an estoppel.. The complaint avers that respondent, at its own expense, cleared the said stream of obstructions across appellant’s land, in order to facilitate the movement of shingle bolts; that ap
The court found that, with the removal of the artificial obstructions, the stream is capable of navigation by shingle bolts after heavy rains and during freshets, which occur
“Hiparían proprietors upon both navigable and unnavigable streams are entitled, in the absence of grant, license, or prescription limiting their rights, to have the stream which washes their lands flow as it is wont by nature, without material diminution or alteration. Each proprietor may, therefore, insist that the stream shall flow to his land in the usual quantity, at its natural place and height, and that it shall flow off his land to his neighbor below in its accustomed place and at its usual level.” Gould, Waters (3d ed.), § 204.
“It is an unreasonable detention of the water to gather it into reservoirs for future use in a dry season, or for the purpose of obtaining a greater supply than the stream affords by its natural flow in ordinary stages, or in order that, by letting it off occasionally, a flood may be obtained for the purpose of floating logs; . . Cooley, Torts (2d ed.), p. 694.
The maintenance and operation of the dam prevents appellant from navigating the stream himself at times when he may wish to do so, thereby obstructing navigation, and, unless he consents to its maintenance, the dam is to him a nuisance, which he is entitled to have enjoined. Carl v. West Aberdeen etc. Co., 13 Wash. 616, 43 Pac. 890; Sultan W. & P. Co. v. Weyerhauser Timber Co., 31 Wash. 558, 72 Pac. 114. We therefore think appellant was entitled to an injunction, preventing respondent from maintaining’ and operating the dam, and requiring it to permit the water to flow across appellant’s lands in its natural and regular way, and respondent must conduct its own navigation of the stream over such natural flow.
Another provision of the decree, with reference to the methods attending respondent’s navigation, also calls for examination. It will be remembered that, by its terms, the decree prohibits appellant from interfering with respondent’s employes in the way of preventing’ them from going upon the banks of the stream upon appellant’s lands, for the purpose of breaking jams of shingle bolts, so long as the going upon the banks does no injury to appellant or his lands. We think this provision of the decree is also erroneous. We believe we went as far as we should go in the interest of public convenience, when we held, in Watlcins
The court found that respondent’s acts have produced no actual injury or damage to appellant or his lands. Appellant contends that it was error to so find. The evidence conflicts upon this subject, and we shall not disturb the
Tbe decree should be modified in accordance with what has been herein said. The cause is remanded, with instructions to the trial court to enter a decree conformable to this opinion. The appellant shall recover the costs of the appeal, and neither party shall recover costs in the lower court.
Fullerton, C. J., and Mount, Anders, and Dunbar, JJ., concur.