23 Wash. 372 | Wash. | 1900
The opinion of the court was delivered by
This was an action in the superior court of Skagit county, brought by respondents to recover damages from appellants on account of using the Sainish river for storing and holding logs, and asking a permanent injunction against the future use of the river for storing and holding logs. Respondents recovered judgment for $175 damages and obtained an injunction prohibiting the use of the Samish river for holding, handling, assorting, or booming logs. A demurrer was interposed to the complaint for the reason that it failed to allege that the injury was caused by negligence or want of care on the part of appellants. The demurrer was overruled, and the order of the court overruling the demurrer is made the first assignment of error by appellants.
The complaint alleged that appellants allowed logs to accumulate and remain in large quantities, thereby forming a jam and obstructing the river, thus causing the water to rise and flood their lands, wash away their dikes, and damage them. We think this was a sufficient allegation. We are not able to see that the cases cited by appellants are in point. They simply establish the doctrine that the public may use navigable or floatable streams for
The appellants offered an affirmative defense to the effect that they had expended a large amount of money in straightening the channel, removing snags, and otherwise improving the river, making it navigable and fit for floating logs; that by so doing they had greatly improved and increased the drainage of the adjoining lands; that they had thousands of dollars invested in timber lands and apparatus for logging the same; and that by using
Tbe third alleged error is that upon tbe trial appellants filed an amended answer containing an affirmative defense in wbicb it was alleged that, if any damage was suffered by respondents, it was caused through no fault or negligence of appellants, but while they were using ordinary care, diligence, and skill in handling tbe logs. In response to a motion of tbe respondents, tbis defense was stricken, for tbe reason that tbe same was irrelevant and redundant. What has been said under tbe first assignment of error in relation to tbe sufficiency of tbe complaint applies to tbis assignment. Tbe motion was properly sustained.
Tbe fourth allegation of error is an objection to tbe fifth finding of fact, wbicb was to tbe effect that tbe respondents sustained damages to tbe amount of $175. We think there was sufficient testimony to sustain tbis finding.
Tbe fifth allegation is that tbe court erred in bolding appellants liable for any damages wbicb respondents sustained. Tbis assignment is covered by what has been said under tbe first and second assignments of error.
“If that condition is true, and there is no other place in the Samish river where logs can be boomed, etc., without injury to the property of riparian owners, and by reason of such condition loggers are put to some inconvenience and expense in constructing a place for handling and booming their logs, then, to use the expression of counsel, it is their misfortune in choosing a location, as the inconvenience and expense are incidents to logging upon the Samish river.”
The seventh allegation of error is substantially the same as the third.
The eighth allegation is that the court exceeded its authority in attempting to control the use of the river perpetually by injunction: binder all the circumstances as shown by the testimony of this case, we think the damages were such that a perpetual injunction was necessary to protect the rights of the respondents.
The last assignment of error, and the one which the appellants urge most strenuously, is that finding Ho. 9, which is to the effect that, if the appellants are permitted
No error appearing of record, the judgment will he affirmed.
Reavis, Fullerton, Anders and White, JJ., concur.