72 Wash. 631 | Wash. | 1913
The respondent company operates a shingle mill near the mouth of the Stuck river. In connection with its mill it maintains a boom, and has included in its boom plat filed with the secretary of state all of the Stuck river, and the White river from its union with the Stuck river up beyond Buckley. The Pacific Coast Power Company maintains a large electric power plant near Dieringer. To obtain water for generating this power, it has obtained, through the purchase of riparian lands or the acquirement of water ■rights, all of the riparian rights (except as to one small piece that will be hereafter referred to) upon the White and Stuck rivers between points near Buckley and Dieringer, a distance of approximately eighteen miles. At the point near Buckley, the power company has constructed a dam, and by flume and canal conveys the water from its intake to Lake Tapps, which is used as a reservoir for storage of the water for use at such times as the natural flow would prove insufficient for the purpose required. From Lake Tapps the water is conveyed to the power house, and thence through a tail race it finds its way into the Stuck river.
. Prior to the incorporation of the power company, on January IT, 1908, the Tacoma Industrial Company and the White River Power Company had acquired water rights and lands along the White river, and as early as 1908 engineering and construction work had commenced by one or the other of these companies. At the time of appellant’s incorporation, these other companies conveyed all their rights and property to it. Appellant then proceeded with the development of the power scheme and the construction of its power plant, and up to the time of trial, had expended in
The appeal presents only questions of law, all the material facts being conceded. In determining the respective rights of these parties to the rivers and the use of their waters, the first point to be decided is the character of these two rivers. They are practically one river and will be treated as such. Respondent company made its first drive in September, 1908, since which time it has made fourteen drives from points below appellant’s intake and four drives from above
The navigability of streams, or that they possess a capacity for valuable floatage, is a question of fact, and he who asserts it must prove it. To be navigable or floatable in law the stream must possess such characteristic in its natural state. If artificial means or aids are necessary in making use of the stream to float timber, the stream is not float-able. This rule was first announced by this court in East Hoquiam Boom & Logging Co. v. Neeson, 20 Wash. 142, 54 Pac. 1001, where it was said:
“It is well settled that a stream which can only be made navigable or floatable by artificial means is not a public highway.”
The same rule was announced in Griffith v. Holman, 23 Wash. 347, 63 Pac. 239, 83 Am. St. 821, 54 L. R. A. 178. In Watkins v. Dorris, 24 Wash. 636, 64 Pac. 840, 54 L. R. A. 199, a new element of floatability was announced, in holding that streams which can, during annually recurring freshets, be used profitably for the floating of logs, must be held to be public highways for such purposes; that while in such streams the title to the beds might be in the riparian owner, such title was subject to an easement in the public to use the stream for floating logs and timber products; and while such use as a public highway could not be denied, the easement was confined to the stream, and neither the banks nor the soil in such a stream as the one then- being considered could be used as an aid to floatability without the landowner’s consent, or right obtained by operation of law. We next had occasion to rule on this same question in Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 Pac. 813, 102 Am. St. 905, 70 L. R. A. 272, and, following Watkins v. Dorris, it was held that a stream which in its natural state is capable of floating shingle bolts, after heavy rains and during freshets
“The reasons leading to the holding in this state and others, where the timber industry is important, that streams which are navigable in fact for the floatage of timber to market shall be public highways for that purpose, are founded upon commercial convenience and necessity, because of the environment of the industry. Much of the timber grows in the mountains, also upon the foothills, and in other localities which are inaccessible by means of transportation facilities, without great expense. Nature has, however, provided numerous streams which flow out from these timber centers, and which are available highways for the carriage of the timber to market. In a locality so situated, it seems reasonable that these highways should be used for such purposes. It is true, the maj ority of these streams, being unmeandered, pass over private property, and their beds are owned by the adjacent land owner. But the lands are naturally burdened, if it be a burden, by the streams themselves, with their defined banks and flowing water, and it is not an additional burden to the land owner for the timber product to float along with the already running water, provided' it is so done as not to damage his land. His rights in the latter particular must, however, be strictly and carefully guarded. Under the former decisions of this court, and for the further reasons herein assigned, the court did not err in holding that Woods creek is a navigable stream for the floatage of shingle bolts
to which was added later on in the opinion:
“We believe we went as far as we should go in the interest of public convenience, when we held, in Watkms v. Dorris, supra, that private land owners hold the beds of unmeandered streams subject to the easement of driving timber products over the land. But we tried to make it clear in that case that the timber driver must confine himself and his operations to the highway itself — the bed of the stream— until the land owner consents to the use of the banks or*637 until the right to their use has been acquired in a lawful manner. If more emphatic statement of that rule is necessary, we now wish to be understood as making it, with all needed emphasis. The fundamental principle of right in the land owner to control his own premises, outside of the bed of the stream, must not be violated.”
The navigability of a stream that will float timber products during natural freshets was next determined in State ex rel. United Tanners Timber Co. v. Superior Court, 60 Wash. 193, 110 Pac. 1017, and the previous cases followed. It was, however, said in that case, that the fact that the use of the shores added to the convenience of driving the timber did not affect the question of the natural navigable capacity of the stream, quoting from Olson v. Merrill, 42 Wis. 203: “A stream is none the less navigable because persons using it are induced by convenience to prefer unlawful to lawful means in aid of the use.” That it was not intended to depart from the rule of the prior cases is evident from what is next said: “Where the use of the shore rights is required to facilitate the driving of logs, they must be acquired by private treaty or by condemnation.” Our latest statements of the rights as to the banks and' beds of these small streams is found in Berryman v. East Hoquiam Boom & Logging Co., 68 Wash. 657, 124 Pac. 130, where it was held that the right to damage riparian lands by splash dams could be acquired by prescription, but if not so acquired, “persons have no right to use or interfere with the beds or banks of a stream without the riparian owner’s consent.”
From these decisions it can be gathered that the present rule in this state is that a navigable or floatable stream is one that in its natural condition, without artificial means or aids, is susceptible of floating timber products from the forest to the mill, and that streams which are subject to annually occurring freshets of sufficient volume to float logs or shingle bolts are considered floatable in their natural condition, and that as between the riparian owner and the tim
“The log driver takes the waters as they run, and the bed over which they flow as nature provides. Nor has any person the right, unless upon his own land, or under legislative grant, to remove natural obstructions from the bed of a river in order to improve its navigation. . . . It is settled in this state that he [riparian owner] owns the bed of the river to the middle of the stream. He owns all the rocks and natural barriers in it. He owns all but the public right of passage. The right of passage does not include any right to meddle with the rocks or soil in the bed of the river.”
In Thunder Bay River Booming Co. v. Speechly, 31 Mich. 335, 18 Am. Rep. 184, in discussing the same relative rights, it is said the right of the public in a navigable or floatable stream is a right only to the stream “in its natural state and ordinary capacity,” and that these terms include periodical fluctuations in the volume and height of the water “recurring as regularly as the seasons,” and that “any attempt to create capacity at other times at the expense of private interests can be justified only on an assessment and payment of compensation.” In Haines v. Hall, 17 Ore. 165, 20 Pac. 831, 3 L. R. A. 609, we find a similar condition to that shown in this record. In order to drive the logs down the stream, men were employed and stationed along the bank with cant-hooks and other appliances to prevent the logs from lodging, and to roll them back into the stream, drag them over
“A stream' that cannot be used without employing the means and appliances which the appellant made use of in order to float his logs down this one certainly ought not to be regarded as a public highway for any purpose.”
In Felger v. Robinson, 3 Ore. 455, the court makes use of this language: “Any stream in which logs will go by the force of the water is navigable.” Kamm v. Normand, 50 Ore. 9, 91 Pac. 448, 126 Am. St. 698, 11 L. R. A. (N. S.) 290, after reviewing numerous authorities, reaches the same conclusion.
Following the rule as established by these authorities, and many others examined but not cited, we reach the conclusion that this river, between the intake and tail race of the appellant, is not a navigable or floatable stream. If we should announce a different conclusion and hold that it was floatable, the right of respondent to make such use of it would not be superior to appellant’s right as a riparian owner to use the water for power purposes. In such a case, the rights would be correlative, and each must use his right with due regard to the existence and protection of the other. Middleton v. Flat River Boom Co., 27 Mich. 583; Buchanan v. Grand River etc. L. R. Co., 48 Mich. 364, 12 N. W. 490; White River Log & Boom Co. v. Nelson, 45 Mich. 578, 8 N. W. 587, 909. So that, even under such a holding, we could not sustain the lower court in enjoining the appellant from its use of the water. Stuck river is not meandered, while the White river is meandered only upon the right bank. That a stream is not meandered does not of itself establish its character as a navigable or nonnavigable stream. It would indicate nothing more than that, in the opinion of the officers ordering or making the survey, the stream was not navigable. Griffith v. Holman, 23 Wash. 347, 63 Pac. 239, 83 Am. St. 821, 54 L. R. A. 178; Lownsdale v. Gray’s Harbor Boom Co., 21 Wash. 542, 58 Pac. 663.
The next question to be determined is whether the Northern Pacific land is entitled to riparian rights as against appellant. At the time appellant acquired its rights on the river, this forty-acre tract did not abut upon the river. The rights acquired by appellant included all riparian rights attaching to all lands abutting the river on either bank, between its intake and tail race. Subsequently the river changed its course, and, at the time of the trial, ran across one end of the forty for a distance of about 250 feet. Respondent contends that the rule applicable to gradual erosion on one bank and gradual accretion on the other should be applied. While that rule is well established, it does not seem to us that it is a proper one whereby to measure these water rights. Appellant, under the doctrine of relation, became possessed of the right to the use of the water in this river in January, 1908. Its rights as an appropriator then became fixed and established, and are superior to the rights of respondent as the owner of land becoming riparian subsequent to that appropriation. In states such as ours, where no notice of appropriation is required for taking water for power purposes, the right relates back to the first substantial act of the appropriator for the acquisition of the right, whether that act be the actual commencement of construction work or other necessary work incident thereto; provided always that reasonable diligence is exercised in finally perfecting the appropriation. Kinney,
Respondent attacks the diligence of appellant in proceeding with its work, hut without referring to the evidence, which leads us to a different conclusion, we think it abundantly appears that, for a work of such magnitude, appellant proceeded with all proper diligence and that at no time from its first adoption of its plan to the final completion of the plant, so far as this record discloses, can it be said there is any act, or the lack of any act, on the part of appellant that would indicate any abandonment or desire to unnecessarily prolong its construction work. We therefore hold that appellant’s rights .as a prior appropriator are superior to the rights obtained by respondent by reason of the Northern Pacific land becoming riparian. There is no question submitted by this appeal as to the floatability of these rivers during annually recurring freshets. In fact, it is conceded that, if floatable at all, they are only so during the summer months, and that during the winter months, or other times when the streams are subject to freshets or high water, it is impracticable if not impossible to drive shingle bolts, as the current is so swift the bolts will, to use the expression of one witness, “duck” the boom and pass beyond it.
In citing other cases from our own state we should have referred to the case of Kalama Elec. L. & P. Co. v. Kalama Driving Co., 48 Wash. 612, 94 Pac. 469, 125 Am. St. 948, 22 L. R. A. (N. S.) 641, which as here, was a contest between a power company, claiming the right to the use of the water as a riparian owner and prior appropriator, and a driving company claiming the right to create artificial freshets by means of splash dams upon which to drive logs during seasons when the natural flow of the stream was insufficient. That case differs from this in that it was there held that, because of the stream being floatable at times of natural recurring freshets, it was navigable. The driving company also had the right to construct dams and gather water for
Counsel for respondent in his argument called attention to the fact that a number of streams in this state, smaller than White river, have been held floatable. This may be true. The floatability of rivers and streams is, however, not to be determined by their size, but by their capacity for valuable public use in their natural condition, irrespective of their size. The right to the use of the waters -of these rivers for booming and driving purposes is sought by respondent, principally, if not entirely, for its own use in bringing shingle bolts to its mill. While it has the power under its incorporation to act in such capacity for the public, it never has done so, but has confined its operations to driving and booming shingle bolts intended for its own mill. These facts are worthy of mention only in suggesting that, in so far as the public use or benefit is affected, the use of the water of these rivers as desired by appellant serves a great public need, while that of respondent is in effect for its own private use.
The judgment is reversed, and the cause remanded with instructions to dismiss.
Mount, Main, Ellis, and Fullerton, JJ., concur.