57 Wash. 71 | Wash. | 1910
The relators are allied corporations, having the same stockholders and the same management. The driving company is engaged upon the upper stretches of the Humptulips river, in improving it for log driving and creating splash dams and artificial freshets for the purpose of driving the logs down the river. It has filed its plat along all that portion of the river where it has purposed to make any improvement or create any splash dams. The boom company is located near the mouth of the river, and its purpose is to catch the logs driven down the river by the driving company, on the natural flow of the river or by splash dams and artificial freshets, and to sort and store the same in its booms. The respondent C. H. Pealer is the owner of lands adjoining or in close proximity to the river, about a mile or more above its mouth, and so related to the river as to be overflowed and damaged whenever logs are driven to the boom by artificial freshets. These lands are within the plat of the boom Company. The respondent brought an action against the driving company and the boom company as joint defendants, to recover damages for the overflow and other injury to his lands, and recovered judgment therefor, which upon appeal was sustained in this court. Pealer v. Grays Harbor Boom Co., 54 Wash. 415, 103 Pac. 451. The relators thereupon
The court below recites in its judgment, which it entered upon relators refusal to plead further, that the action could not be maintained, for two reasons: (1) Relators could not join in the action; (2) the driving company had no right of action, because its plat did not cover respondents’ lands. These are the only questions raised here, and we will treat them in the same order.
It is manifest, from the admitted facts before us, that these two companies are engaged in a common enterprise; the one gathers the logs upon the upper river and drives them to the booms of the other, the purpose of both being the use of the river in its natural and in the artificial condition created by them, to convey and hold the logs for market. It is also apparent that, whenever artificial freshets are created by the driving company, the water thus released will not confine its overflow and damage to lands within the driving company’s plat, but will continue on down the river, overflowing and damaging all lands so related to the river that its banks are insufficient to confine these freshets to the proper channels. The river is tidal for some distance inland from its mouth, and whenever the booms of the boom company are filled with logs and the river above the boom filled with logs on their way to the boom, riding the natural flow of the river, and the driving company upon the upper river with its splash dams and artificial freshets causes large quantities of logs to be driven upon swiftly flowing water down the river, the waters and logs reaching the lower river and meeting the obstruction of full booms and full river above the booms, unable to pass out in the natural flow, there can be but one result, the retarding of the flow of the water and back flows, and the consequent overflow and damage to adjacent lands not protected
While it is manifest that the overflow and damage are caused by the concurrent acts — the artificial freshets in the upper river for which the driving company is responsible, and the choked and clogged lower river caused by obstructions for which the boom company is responsible — yet to separate these damaging factors and to approximate their respective effects would be a mere matter of speculation. It is easy to know that the joint and combined acts create an injury. It is difficult, and the law would not require one, to- go further and apportion this injury between the two responsible causes. Such is within the reasoning, if not within the language, of the court in reviewing the instruction complained of in Pealer v. Grays Harbor Boom Co., supra. A like rule is announced in Heybrook v. Index Lumber Co., 49 Wash. 378, 95 Pac. 324, where it was held that a timber company and a mill company, both owned and managed by the same persons and jointly interested in the removal of timber, could be joined in an action for trespass. The relators had an interest in the subject-matter of the action and in the relief demanded, and were properly j oined as plaintiffs.
Upon the second question presented, the only purpose of the plat requirement, Rem. & Bal. Code, § 7121 (Laws 1905, p. 232, § 1), is that of notice. Under its charter and within the limits of its plat, the driving company was authorized to enter upon the river for the purpose of removing obstructions, improving the channel, building wing dams, creating artificial freshets, and for other designated purposes. Its power to do so was conditioned upon its filing a plat or survey of that portion of the river it desired to so improve, and the
If the driving company were here seeking to improve the river at the point where it contemplates an overflow of respondents’ lands, its failure to file a plat including these lands would be fatal, because it can only exercise its powers within the area for which it has itself asked to have those powers conferred upon it. But it is here seeking, not the exercise of any of its granted powers, but — since the thing incidental and accessory to its granted powers must necessarily result in damage to others, and without which damage its granted powers cannot be exercised — that the damage thus resulting be finally fixed and determined. If respondents’ position be maintained, it would necessarily mean that any driving company operating upon the upper stretches
The judgment is reversed, and the cause remanded with instructions to overrule the demurrer.
Chadwick, Fullerton, and Gose, JJ., concur.