79 P. 461 | Idaho | 1904
On the twentieth day of March, 1903, respondents in this action filed a complaint in the district court of Nez Perce county against the appellants, setting out facts which, in the opinion of the district judge, warranted the issue of an injunction restraining certain acts until the further order of the court. Thereafter, and on the twenty-seventh day of March following, plaintiffs filed an amended complaint. The first paragraph alleges that plaintiffs aTe copartners, doing business at Lewiston, Idaho, under the firm name and style of Small & Emery and that they are engaged in the manufacture, wholesale and retail, of lumber, shingles, etc. Second: That since the twentieth day of August, 1896, plaintiffs have been in the active possession of and operating a sawmill, situated on the south shore of the Clearwater river at Lewiston, and that plaintiffs have operated said mill and are operating it for the purpose of manufacturing lumber and building material for wholesale and retail trade. That ever since said last mentioned dates plaintiffs have owned large quantities of logs on and along said river about eighty miles above plaintiffs’ said sawmill; that all logs sawed or manufactured into lumber'at said mill have been [procured on and along said river and its tributaries at points all the way from forty-five to eighty miles above the site of said mill. That the only means of transportation of logs to said mill is by floating them down said river in rafts or drives.
The third allegation is that the Clearwater river is a navigable stream and that the plaintiffs and the public generally from time immemorial have used the same for the purpose of driving and floating logs, rafts, etc., down the same; that it is usual every spring between the 10th of February and the 1st of .July for said stream to rise, caused by the melting snow in -the mountains. That it is impracticable and impossible to drive
The fourth allegation is that the Clearwater river at the point where the piers are being built is, and ever has been, navigable, and said south channel is, and ever has been, navigable, and that the public has used the same for passing, floating and driving rafts and drives of logs and other crafts down from time immemorial, and plaintiffs have used the same for said purposes ever since they first established their sawmill; that said south channel is the only way or means by which plaintiffs can transport, convey or- deliver logs at their said sawmill. That
The fifth alleges the insolvency of defendants, and inability to respond in damages, and further alleges that defendants established their said mill and began the use of said south channel long subsequent to the time that plaintiffs began the operation of said mill and commenced the use of said Clearwater river, and further alleges that said defendants have committed a public nuisance by reason of their acts aforesaid.
Then follows prayer for injunction, restraining defendants from building, constructing, completing or continuing the said piers or otherwise obstructing the free passage or use of said river, and particularly the south channel or current thereof. That on final hearing the injunction be made perpetual. That the said nuisance be abated and that plaintiffs have their costs.
Defendants answering admit paragraph 1 of the complaint. Paragraph 2 is denied for the want of information and belief sufficient to enable them to answer.
Answering paragraph 3, defendants admit that the Clearwater river at the time herein mentioned is a navigable stream at a certain season of the year. Deny that it is practicably navigable except during high water in said stream, and admit that plaintiffs and the public generally have during the past ten years, but not from time immemorial, used for floating logs, rafts, timber, etc., down the same during the high water, and admit that it is usual during late spring and early summer, to wit, during the last days of May and the month of June, for the Clearwater to rise; but deny that it is usual for said river to rise or be at the stage of high water at any other season of the year. Admit that said rise is caused by melting snow. Admit that it is impracticable and impossible to float rafts, etc., from any point fifty miles above the site of said sawmill, only during high water. As to allegation that plaintiffs have contracted for about two million feet of said logs to be floated down said river to said mill, and have purchased and are purchasing other large quantities of sawlogs to be floated down said river to said mill when said spring rise comes, these de
The fourth denies all the allegations in paragraph 4 of the complaint.
The fifth denies all the allegations in paragraph 5 of the complaint.
For second and fourth defense to the complaint defendants allege: First, that the defendants are partners in the said mill business at Lewiston, Idaho; the second averment is that defendants are the owners of the land upon which their mill is located, describing it. Third describes a tract of land to the west of the tract upon which their mill is located alleged to have been purchased by Starr W. Scofield of William Phillips, and that the slip or channel on which is held the logs or timber to be sawed in said mill, and for securing and holding the same in place, is situated the piers, five in number, together with the slip or boom piers and the terminal piers. Fourth ravers that said slip and piers are all at the western terminus of the slough upon the Clearwater river, and the same has been largely improved and placed in its present condition by open
For a third and separate defense defendants plead a trial in the court of Samuel L. Thompson, a justice of the peace of West Lewiston precinct, wherein they were charged with willfully and unlawfully obstructing the free passage and use of the ■Clearwater river, which was a navigable stream, by floating in said river the obstructions complained of in this action. That a trial was had in said justice’s court, with a jury, and they were acquitted of said charge, and that it is a bar to this action.
On May 8th, defendants, by leave of court, filed an amendment to their amended complaint, amending paragraph 2 of said amended complaint, by alleging that ever since the twen
We have set out very fully the substance of the pleadings in this case in order that the true situation may be fully understood.
The case was tried without a jury, and on the nineteenth day of June, 1903, the court filed findings of fact, conclusions of law and decree, which were in favor of the plaintiffs. The language of the decree is that the temporary restraining order heretofore issued and served upon defendants herein be, and the same is hereby, made absolute and perpetual, and it is hereby further ordered, adjudged and decreed that the said defendants — naming them — their agents, servants, employees and all others acting under them be, and they are hereby, perpetually enjoined and restrained from in any manner building, erecting, constructing or completing piers in or across the south channel of the Clearwater river from the site of defendant’s sawmill on the south shore of said Clearwater river in the city of Lew-iston to the island in said river, or at any other place in or across said south channel above the sawmill site of Small & Emery, or in building or placing any other piers in or across said south channel at the point of said piers, or in otherwise obstructing the free passage or use in the customary manner of said south shore of said Clearwater river. Judgment was entered for costs on the twenty-fourth day of June, 1903, and defendants filed their motion for a new trial alleging: 1. Insufficiency of the evidence to justify the decision of the court and that the decision is against law; 2. Errors of law occurring on the trial and excepted to by the defendants’ said motion will be made upon bills of exception and a statement of the case. On the seventh day of December, 1903, the motion for a new trial was denied. The appeal is from the judgment and the order overruling the motion for a new trial.
Many of the assignments of error are based upon the ruling of the court in the admission or rejection of evidence. In the trial of equity eases the rule seems to he that courts are very liberal in the admission of evidence, the theory being that in the final determination of the action, only such evidence as is competent and pertinent to the issues will be considered. We are aware that this rule is subject to abuse and if carried too far might work a great hardship and injury to either party to the litigation.
We have considered the errors assigned on this ground in the case at bar and do not feel inclined to hold that any evidence was admitted that was misleading or calculated to misdirect the court on the material issues involved. If it were made to appear by the record that the court based any material finding or conclusion on evidence that should have been excluded as not being relevant to the issues, or for any other reason, then we would not feel inclined to hold that the court could admit any and all kinds of evidence and be justified under the liberal rule above suggested.
For recent discussions of this question, see King v. Pony Gold Min. Co. et al., 28 Mont. 74, 72 Pac. 309; Metcalf et al. v. Bockoven (Neb.), 96 N. W. 406.
Counsel for appellants urge that if they have created a nuisance at the place and in the manner named, the plaintiffs cannot be heard to complain as private citizens. That if a nuisance is to be removed from a navigable stream of the state, it must be at the instance of the attorney general on behalf of the state.
Counsel for appellants also urge with much enthusiasm and ability that the court erred in not permitting the appellants to show that the defendants, or some of them, had been arrested on a criminal complaint and tried in a justice court of one of the precincts of the city of Lewiston on the charge of maintaining a public nuisance involving the identical question involved in this ease; that the case was tried by a jury duly and properly selected, and that after a full and fair investigation defendants were acquitted; that said judgment is a bar to this action. We do not think the court erred in this ruling. The mere fact that the jury did not convict defendants of maintaining a nuisance is no" bar to a civil action to require defendants to abate the nuisance, and this is especially true where it is shown that neither of the plaintiffs was the complainant in the criminal action. If the contention of counsel for appellant is to be upheld, it is equivalent to saying that an acquittal of a charge of grand larceny by a jury regularly selected would be a bar to the recovery of the property alleged, to have been stolen in an action of claim and delivery.
The serious and all-important question before us for determination, and the one we approach with much delicacy, is: Was the evidence sufficient to support the judgment? Whilst the rule in equity cases as enunciated by the courts generally, and this court repeatedly, is not as stringent as in law cases, it is the policy of the appellate courts to sustain the judgment of the trial courts when it can be done without apparent infringement of the rights of litigants. The learned judge before whom the respective rights of the parties to this action were submitted, found for the plaintiffs, rendered a decree accordingly, and afterward refused to grant defendants a new trial.
It is shown that this litigation is between rival mill owners on what is termed the south channel of the Clearwater river as it flows by the city of Lewiston. No one else has any interest in the result of the litigation so far as the record shows. Before the plaintiffs were entitled to a restraining order, such as was issued on the final determination of this action, and judgment rendered, it was necessary for them to establish by a fair preponderance of the evidence that the use made of said stream by appellants was unauthorized, unreasonable or unnecessary. Albert Small was the first witness who testified for plaintiffs. After testifying to the partnership arid business of himself and company, plaintiffs, that they were the owners of the sawmill and had been at its present site for the past six
Fred W. Emery testifies as to a conversation with defendants two or three days before the injunction was issued or filed. As he states it, they had a gang of men constructing piers; they had several of them. The bottom of the piers laid out and built part way up, and I talked with them with regard to leaving an opening to get through. We could not get through them. The piers were built of rock and timber and cribbed up with timber and filled with rocks; one was one hundred feet long, probably twelve feet wide; I took it to be about five feet above low water. The other piers looked to me to be built somewhere at the bottom about ten or twelve feet long and six or eight feet high. There were five that I counted at that time, piers, in the course of construction; the one hundred foot pier was completed. The one at the outer end of the island probably ten or twelve feet square — these piers extended one hundred to one hundred and fifty feet from the bank out to the point where the channel was cut or parted by the island. The outer pier extended out where it was all out of water in low water. The old raft channel runs through where this long pier is. Eight by the comer of the mill there is the deepest water. There was no way of rafting logs through these piers as they were being constructed when the water was down. The only way was to cut the raft to pieces and shove them through a log at a time.
Albert Small testified to seeing parties at work about the 12th of April, 1903, constructing piers, their manner of construction, etc. Emery and Small both testified that there was nG other means of getting their logs along the Clearwater down to their mill except by rafting and driving them down the Clearwater river. Emery says during the spring rise logs cannot be taken down the north channel of the river and landed at their mill. The way the mill is situated the island runs down at the north of the mill, and if we come down the north
Charles Adams testified: “I have been running logs and rafts on the Clearwater river ever since four years before 1877. In coming down the Clearwater river we would have to go down the south side of the channel all the time to reach the Small & Emery mill. You could not take a raft around that east pier — that is, north of it — and then land it at Small & Emery’s mill because it would take us on the main river; danger of coming into the Snake, certainly lose the raft.” •
' George White testified that there is no other way to get a raft to Lewiston other than bringing it down the south channel of the Clearwater river.
James C. Evans testified: “I used this south channel in bringing these rafts down and landing them at the Small & Emery mill. That was the'usual way to bring logs down. I saw the piers that were being put in the south channel along in April. I saw them before any of them were broken or washed out. Well, I think they stopped the running of rafts. You could not run rafts through them. I do not think a person bringing a raft down the Clearwater river could get north of the piers and land at Small & Emery’s mill. A draught of water would take him beyond the bar or into the main river. It would take him down the Snake below Small & Emery’s mill.”
Captain Ephriam W. Baughman testified: “I know where the sawmill of Small & Emery is situated. I hardly think it would be possible to bring logs and rafts of logs down the Clearwater river and land them at the sawmill of Small & Emery without bringing them through the south channel. That is my idea; it couldn’t be possible. If you miss the south channel I do not think you could stop it. I am sure you could not
This is the evidence upon which learned counsel for respondents ask the court to sustain the judgment of the lower court. It is largely copied from their brief, and an examination of the record discloses that it is a fair synopsis of the evidence given by the witnesses on behalf of the plaintiffs. At the close of plaintiffs evidence defendants moved for a nonsuit on the ground of an objection to the amendment of the complaint, and further that the only injury attempted to be shown in this case is one resulting from an alleged infraction of a common right; and that there is no evidence to show that the defendants have made any unreasonable or imprudent use of their millsite or of their right to construct piers in a navigable stream; that the evidence shows that plaintiffs and defendants both maintain mills and are simply competing companies; that the evidence shows that there is no careless exercise of the public right and no reckless use thereof shown; that an individual cannot maintain an action for the enforcement of a common right such as is attempted to be shown in this case, and that the private appropriation of a portion of a navigable stream is not shown to be a nuisance of which the court will take any notice or knowledge. This motion was overruled, and we think properly so. The filing of the amendment to the complaint was a matter largely within the discretion of the court, and we find no abuse of his .discretion. We find no error in overruling the motion for nonsuit on any of the grounds alleged in the motion.
Defendants then called Jacob Sharrah as a witness, who testified that he had resided in Lewiston twenty-one years and his occupation teamster. Knows the location of both sawmills and has hauled lumber and wood for both companies. “I know of logs coming to the Small & Emery millsite soon after I come here. Elliott & Emery I believe brought a drive of logs to this same location where théir mill now is, and the drive
E. G. Cummings testified as to the accuracy of the pictures marked as defendants’ exhibits.
J. D. Seibert testified that he was engaged in logging and rafting on the Clearwater river, and has been so engaged three or four years; acts as pilot on rafts; thinks he is familiar with -the channel and currents of the river; knows the situation of ’both mills; familiar with the channel and currents between •those mills; has noticed some piers east of the Harrington &
J. T. Hamm testified that he helped to construct a portion of those piers. “I think my first time there to take any notice of the piers was about the 24th of December last. I know of rafts being passed down by the Harrington & Parkyn sawmill. Since that time on the 4th of April, 1903, there was a raft went on the north of it run down. It was a raft that Small & Emery bought above, and they run it on the north side of the pier. Mr. Emery was there with another raft that came in prior to this, and they were cutting those logs loose and these gentlemen wanted to sell them this other raft and went down
George A. Frost testified he had resided in Lewiston thirty-two years and gave a description of the river in its various changes since that time. What is termed the south channel is not as it was when he first knew it. Followed boating, logging and rafting on the Clearwater a number of years. Has taken rafts to the site of Small & Emery’s mill, through what is called the north channel, but conditions have changed since the construction of the two mills and does not enlighten the court very much.
J. 0. Maxon, recalled for defendants, testified: Was engaged in rafting from 1873 to 1881 on the Clearwater; knows the present condition of the channels at Lewiston and the situation of the piers. “The east pier stands just barely on the edge of the water in low water, as far as my remembrance serves me. From my experience as a raftsman I would say as to the taking of rafts north of the east pier and landing at Small & Emery’s mill as the river now is at the present stage of water, it can be done easily. It can be done at a reasonable rafting stage.”
Jacob Taylor testified he had been engaged in logging on the Clearwater seven years; is a pilot; ran twenty-eight rafts last year; is familiar with the rafting business; is familiar with .the water between the power-house to the mouth of the slough
. C. E. Stebbins testified that he helped to construct the piers; thinks it is about two hundred feet from the piers to the north of the bar. When we built the east pier there was about eighteen inches of water around it. The water got deeper out from the pier.
William W. McCort testified he assisted in the construction of the piers.
Some witnesses were called in rebuttal, but in our view of the ease it was on unimportant, immaterial issues, except the evidence of Mr. F. W. Emery, who testified with reference to the raft taken by the piers by Mr. Parkyn. He called it a Tittle skate of a raft,” and said he did not see it go by the piers.
Applying the law as we understand it to the facts in this case, we do not think this judgment can be sustained. The legislature in providing for the construction of dams and booms in the rivers and creeks of the state, in section 835, ^Revised Statutes, says: “No dam or boom must be hereafter constructed or permitted on any creek or river unless said dam or boom has connected therewith a sluiceway, lock or fixture sufficient and so arranged as to permit timber to pass around, through or over said dam or boom without unreasonable delay or hindrance.”' It will be observed that the legislature by that section has provided for the use of the streams of the state for logging purposes, and has provided such safeguards as will best protect all concerned. By the terms of this section of our statute, there can be no question of the right of appellants to construct the piers complained of if they have so constructed them as to permit others to use the stream without unreasonable delay or hindrance. It seems that only the two mill companies, the appellants and respondents in this action, are using the channel where the piers are constructed, but this fact has nothing to do with the situation. If the piers are not constructed as contemplated by the statute, the judgment should be affirmed. The act of the legislature legalized the construction of the piers with certain restrictions. In Dutton v. Strong, 1 Black (U.
In Stevens Point Boom Co. v. Rilley, 46 Wis. 237, 49 N. W. 978, it is said: “The right in question [maintaining a boom] necessarily implies some intrusion into navigable water at peril of obstructing navigation.”
In Attorney General v. Evart Booming Co., 34 Mich. 462, the court says: “But like common carriers (boom companies) on the same route, which in. a certain sense they are, they must put up with these inconveniences arising from (appropriations of parts of streams) so far as they are not reasonably avoided; they constitute no nuisance, and neither party conducting its business in a proper and prudent manner can be subject to either public or private complaint. Any injury under such management must be considered incidental to and inseparable from the exercise of a general right.” (See Farnham on Water and Water Rights, p. 430.)
In Lancy v. Clifford, 54 Me. 487, 92 Am. Dec. 561, may be found a very full discussion of this question. Many other authorities are cited by appellants in support of their various contentions, but we do not think it necessary to quote further from them. The rule governing cases of this character is that all parties interested in the free use of a navigable stream are subject to conditions that may exist in each particular case. No one has the right to arbitrarily obstruct a stream to the detriment or injury of his neighbor; each one is entitled to the free and reasonable use of the navigable streams of this state,
It is urged by counsel for appellants that the court neglected to find on all the issues involved. As there is to be a new trial granted, we suggest that the court should find on all the material issues in the case. We have already passed upon all, or nearly all, of the errors assigned, many of them in groups, and some without singling them out. We apprehend the trial court will have no difficulty in the next trial of this case in determining the views of this court.
The judgment is reversed and remanded for further proceedings in harmony with this opinion. Costs awarded to appellants.