State ex rel. Pealer v. Superior Court

Gose, J. The respondents are allied corporations, having the same stockholders and a common management. The case was before this court in another form. See State ex rel. Grays Harbor Boom Co. v. Superior Court, 57 Wash. [567] 71, 106 Pac. 481, for a more complete statement of the facts. The boom company has a boom extending up the Humptulips river from its mouth for a distance of a mile or more. The driving company has its splash dams forty and fifty miles respectively above the mouth of the river. The petitioner owns land contiguous to the river and a small slough called Berg’s Slough, about one-fourth of a mile above the boom. The Humptulips river is a tidal stream and flows into Grays Harbor. The object of the action is to condemn the right to flood and damage the petitioner’s land. The court found: “That the smaller boats of Grays Harbor, drawing from three to four feet of water, can get into the mouth of said river and up the same for a distance on the tides; that the said river is navigable in a restricted sense in tide water; that occasionally such smaller boats have been in the habit of visiting said river for special purposes; such as taking in supplies, or scows; that said river is a floatable stream for its entire length; that such boats as can get into the river and navigate thereupon can now, and will in the future be able to go through the channel left open by the said boom and up to the upper end of the boom;” that in the process of driving logs to the boom, both in flood season and by artificial freshets, the logs become congested above the boom and block the river immediately above it and opposite the petitioner’s land, and obstruct navigation at that point “for a considerable and material portion of the year”; that the blocking of the stream to the extent stated “is the necessary result of the operation of the driving company, and that such blocking is unavoidable”; that the contemplated use is a public use; that the public interest requires the prosecution of the enterprise, and that the boom company and the driving company are entitled to condemn the privilege sought. The petitioner seeks to reverse the decree by a writ of review. The point relied upon is that the ultimate effect of the decree is to permit the boom company and the driving com [568] pany to obstruct navigation, and this the petitioner asserts is to permit it to commit a public nuisance. The latest legislative expression touching boom and driving companies is Laws of 1905, page 108 et seq. (Rem. & Bal. Code, § 7122 et seq.). Section 1 of this act, which is an amendatory one, provides that corporations organized for clearing and improving rivers and streams for the purpose of driving, sorting, holding, and delivering logs and other timber products thereon, shall have power, in any of the rivers and streams of the state, to improve and straighten the channel, build wing dams and sheer booms, construct dams and gates or otherwise, for the purpose of storing water with which to produce artificial freshets, and for the purpose of holding logs and other timber products; provided “that no such wing dam, sheer boom, dam with gate or otherwise, shall be so constructed, maintained or used as to in any manner obstruct or impede the outlet of such stream; and provided further, that if any such wing dam, sheer boom, dam with gate or otherwise shall be so constructed, maintained or used as to interfere with the use for any purpose of the waters of any stream so dammed or used, or any of its tributaries, or in any manner to injure or damage any lands adjacent to such stream or its tributaries, compensation for such interference with the use of such water and for any such injury or damage shall be first assessed and determined and the appropriation thereof may be made by the exercise of the power of eminent domain, . . .” It will be observed that the ultimate relief sought in this action, viz., the right to flood the land of the petitioner, is expressly authorized. The only limitation is that the “outlet” of the stream shall not be obstructed. The court expressly found, and the evidence shows, that there is an open channel along the boom, and that the only obstruction to navigation is above the boom. The evidence shows that the river is navigable in a restricted sense for a distance of three or four miles from its mouth when the tide [569] is in; that a boat cannot enter the river from the harbor except on the tide, and that it is used for navigation only for particular purposes such as “taking in supplies or scows.” This court has held, however, that a stream is navigable in a legal sense if it is in fact navigable. Dawson v. McMillan, 34 Wash. 269, 75 Pac. 807. The respondents are engaged in a lawful and important public service. It is only because they are public carriers that they are permitted to exercise the high prerogative of eminent domain. It is apparent that they must obstruct the river above the boom at times, or cease to do business. The legislature, in granting the right to construct a boom and splash dams and drive logs and timber by artificial freshets, by necessary implication gave the right to obstruct navigation at times. It is, as the court found, unavoidable in accomplishing the purpose for which the respondents were created. Necessarily, therefore, they do not fall within the general statutes on nuisances as defined in Rem. & Bal. Code, § 943, and Rem. & Bal. Code, §§ 8308 and 8316. Burrows v. Grays Harbor Boom Co., 44 Wash. 630, 87 Pac. 937, and kindred cases, were injunction suits where property was being damaged without the right to do so having been acquired by purchase or condemnation, and are, therefore, not in point. The use of a stream such as the Humptulips river, a stream two to three hundred feet in width, for the purpose of floating and holding logs, is necessarily at times an exclusive use, and either such right must be conceded or the business of floating logs in such streams must cease. The legislature, we think, contemplated the precise contingency. It is further insisted that the present use is violative of the Federal statute (26 Stats, at Large, 454, § 10), in that it creates an obstruction, not affirmatively authorized by law, to “the navigable capacity” of the waters of which the United States has jurisdiction. We do not think the river is a navigable one within the purview of the Federal statute, as that term has been defined by the supreme court of the [570] United States. United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690. In that case the court quotes approvingly the words of Chief Justice Shaw (21 Pick. 344), as follows: “It is not, however, every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture.” As we have seen, the present use of the stream is authorized by the laws of this state, and if the river is not navigable in the Federal sense, the relief sought is not violative of that act. The decree is affirmed. Rudkin, C. J., Fullerton, and Morris, JJ., concur.