E. H. WATKINS et al., Appellants,
vs.
THOMAS DORRIS et al., Respondents
No. 3317
SUPREME COURT OF WASHINGTON
24 Wash. 636, 64 P. 840
April 18, 1901, Decided
Appeal from Superior Court, Wahkiakum County. -- Hon. HENRY S.
ELLIOTT, Judge.
INJUNCTION -- WRONGFUL ISSUANCE OF TEMPORARY INJUNCTION --
DISSOLUTION ON FINAL HEARING -- NOT REMEDY BY APPEAL.
The action of the court in granting and continuing a temporary
injunction pending the final disposition of an action cannot be
reviewed on appeal, where the temporary injunction was dissolved
on final hearing, but the remedy of defendant, if injured by its
wrongful issuance, is by suit upon the injunction bond.
NON-NAVIGABLE STREAMS -- WHEN PUBLIC HIGHWAYS -- FLOATABILITY FOR
LOGS.
A stream eighteen miles long, with an average width of one
hundred feet and depth of three feet, which can, during annually
recurring freshets, be used profitably for the floating of logs
to market, must be held to be a public highway for the purpose of
floating logs and timber products, within the contemplation of
Bal. Code, §§ 4378-4386, which provide that, for the purpose of
booming and floating logs and timber products, all navigable
waters in the state shall be deemed public highways.
NON-NAVIGABLE STREAMS -- PERSONS ENTITLED TO USER.
The statutes of this state which declare non-navigable streams
upon which logs can be made floatable public highways and
authorizing their use as such by corporations organized for
booming and floating logs, must be held as conferring the same
rights upon individuals.
NON-NAVIGABLE STREAMS -- OWNERSHIP OF RED OF STREAMS.
Art. 17, § 1, of the constitution, which reserves title to the
state in the beds of all navigable streams below the line of
ordinary high water mark, has reference only to such streams as
are navigable for general commercial purposes, and not to those
which are public highways merely for the floating of logs and
timber products.
NON-NAVIGABLE STREAMS -- RIGHTS OF RIPARIAN OWNER.
Although a non-navigable stream upon which logs are floatable may
be a public highway so far as the floating of logs is concerned,
persons or corporations using it for that purpose have no right
to interfere with the bed of the stream, or with its banks, for
the purpose of removing obstructions, without the riparian
owner's consent, or the exercise of the right of eminent domain,
where title to the bed of the stream is in such riparian owner.
NON-NAVIGABLE STREAMS -- DAMAGES AS RESULT OF LOG JAM.
A riparian owner upon the banks of a stream which is navigable
only for logs in time of freshets, is entitled to damages, where
his lands become overflowed by reason of the formation of a jam
in the stream due to the negligence of parties floating logs
therein.
J. Bruce Polwarth and George Noland, for appellants.
Sol. Smith, for respondents.
PER CURIAM
{*637} This action was instituted by appellants, who compose a
partnership doing a logging business under the firm name of the
Elochoman Logging Company, in the county of Wahkiakum, state of
Washington. Appellants are the owners of certain timber lands
situate upon and adjacent to the stream named and designated as
the Elochoman river, or Elochoman creek, and have for some time
been engaged in cutting and removing from said premises the
merchantable spruce and fir timber thereon, and by means of said
stream have been transporting the sawlogs cut from said timber to
tide water, for the purpose of booming and rafting the same there
for transportation to the market. The action was brought against
Thomas Dorris and William Dorris, respondents here; and said
Thomas Dorris is also an appellant. Said Thomas Dorris is the
owner of certain other lands lying upon both sides of said stream
and below the lands of appellants, the Elochoman Logging Company.
During the month of November, 1897, the said logging company,
having theretofore placed about fifteen hundred logs in said
stream, undertook to run the {*638} same down the stream where
it passes through the lands of said Thomas Dorris. At a point in
said stream where it passes through the lands of said Thomas
Dorris is a large rock, so situated and embedded that, when said
appellants' logs were carried down by a freshet then occurring,
their passage was obstructed by said rock, a jam was formed, and
the waters of the stream were thereby backed and caused to
overflow the lands of said Thomas Dorris. The said appellants
then sought to break said jam, and alleged in their complaint
that the only way of approaching thereto was from the banks of
said stream, over the lands of the respondent Dorris, and that
said respondents prevented the appellants from making such
approach and from entering upon said lands for said purpose, and
had threatened appellants with personal violence if they should
undertake to go upon said lands for said purpose. They further
alleged that the force of the water at said point was
insufficient to break said jam, and that it could only be done by
men aided by steam or horse power operated upon the banks of said
stream, on the lands of the said respondent. They also alleged
that the value of the logs held by said jam was $ 8,000, and that
they had been damaged in the sum of $ 2,000 by the conduct of the
Dorrises in preventing them from going upon said lands to break
said jam, and prayed judgment for said sum, and also prayed for a
temporary restraining order preventing the respondents from in
any manner interfering with the appellants' entering upon the
banks of said stream for the purpose of breaking said jam, and
also preventing them from interfering with the removal of the
rocks from the bed of the stream which were obstructions to the
passage of said logs. Upon the showing made, the court granted
the temporary restraining order, without notice, and fixed a date
in the order when respondents should, after notice, show cause
{*639} why a temporary injunction should not issue pending the
final hearing of the cause. A hearing was had at said time, and
the court continued the temporary injunction until the final
hearing of the cause. Assignments of error are urged by the
appellant Thomas Dorris as to the course of the court at the time
of the hearing when the temporary injunction was continued, but,
in view of the subsequent history of this case, we do not deem it
necessary to discuss them here, as will appear later in the
course of this opinion. Thereafter the respondents answered the
complaint, and admitted the fact that the log jam existed, but
alleged that the same was caused by the insufficient capacity of
said stream to float logs, and by the mismanagement and
unskillful manner of appellants in driving said logs, together
with their gross negligence and want of care and utter
indifference to the injury resulting therefrom. They deny that
said rock was in the bed of the stream, and aver that it was
then, and for many years theretofore had been, embedded in and
formed a part of the west bank of said stream, where it was a
valuable protection to the bank of the stream, and also formed a
portion of the fence inclosing the cultivated lands of said
Thomas Dorris, and was situated upon his land, and formed a part
thereof. The respondent Thomas Dorris alleges that he is the sole
owner of said land; that said stream is not a meandered stream or
a public highway, and is not navigable where it flows through the
said lands; that the said stream was duly surveyed and disposed
of by the United States, long before the state of Washington was
admitted into the Union, under and by virtue of the land laws of
the United States, and is a private stream not of sufficient size
and volume at any stage of the water, in its natural state, to be
of public utility, or to float sawlogs to market, when it flows
through the lands of said Thomas Dorris, or above {*640} said
lands, but is a short mountain creek, depending upon the rainfall
for the volume of its waters. The reply puts in issue the
material averments of the answer. At the trial of the cause a
large number of witnesses were examined. The statement of facts
filed in this court contains more than four hundred pages of
transcribed testimony. As an advisory matter, the court submitted
to the jury the questions of fact propounded by the
interrogatories hereinafter set forth, and after due deliberation
the jury returned their answers thereto as severally set forth
below. The said interrogatories and answers are, respectively, as
follows, to-wit:
"1. Is the Elochoman river, above the lands of Thomas Dorris, a
highway suitable for the running of logs? Answer: Yes.
"2. Have the lands of Thomas Dorris been injured by the jam of
November, 1897? Answer: Yes.
"3. Was that jam the result of the want of ordinary care and
prudence on the part of the plaintiffs? Answer: Yes.
"4. What amount of land was damaged, and what is the value
thereof? Answer: 2.62 1/2 acres; $ 168.75.
"5. Did the defendant Thomas Dorris refuse at any time before the
jam was broken to allow the plaintiffs or their agents to enter
upon and break said jam, and, if so, what was the extent and
value of the land damaged at the time of such refusal? Answer:
No."
Assignments of error as to the court's instructions to the jury
are urged by counsel upon both sides, but we think the
instructions substantially embody the law of the case. The court
followed the findings of the jury upon the facts submitted to
them, and thereafter, with other findings, entered the following
findings of facts:
"3. That the Elochoman creek is about 18 miles in length, and
empties into the Columbia river; that it has an average width of
100 feet, and a depth of about three feet; that in its normal
capacity it cannot be used for the {*641} floating of logs, but
there are annually recurring freshets of sufficient duration and
with a sufficient volume of water to render said creek capable of
being used profitably for the floating of logs to the Columbia
river to market; that said creek has been so profitably used for
a period covering the last twenty-five years.
"4. That the said Elochoman creek is an unmeandered stream
unaffected by the rise and fall of the tide, save only for a
short distance above the point where it empties into the Columbia
river, and below the lands of said Thomas Dorris.
"5. That the lands of plaintiff hereinbefore described are
chiefly valuable for their timber, and that there is no other
outlet to market, except by means of said Elochoman creek, where
the same flows through the lands of said Thomas Dorris.
"6. That, in addition to the lands of plaintiffs, there are large
bodies of timber adjacent to said Elochoman creek, which are
heavily timbered, and that the timber thereon can not be conveyed
to market except by means of said creek.
"7. That during the early part of November, 1897, the plaintiffs,
having theretofore placed in said creek a large number of logs,
to-wit, to the number of about 1,500, undertook, during a
freshet, to run said logs down said Elochoman creek, where the
same passes through the lands of said Thomas Dorris.
"8. That at the time the plaintiffs so undertook to run said logs
there was upon the banks of said stream, adjacent to and forming
a part of the bank of said stream where the same passes through
the land of said Thomas Dorris, a large rock, which had
theretofore been embedded in the bank, but which during frequent
freshets had partially washed out from the bank; that said rock
was so situated at the time said logs were run that the
accumulation there at any one time during a freshet, of a great
volume of logs, would result in a jam, and the consequent
spreading out of the water upon the neighboring lands, with
damage resulting therefrom; that the fact that the above
described rock was situated as aforesaid, and that the floating
of a {*642} large number of logs thereupon would result in the
formation of a jam, was well known to plaintiffs before the
running of said logs aforesaid.
"9. That during the early part of the said month of November,
1897, the said plaintiffs caused to be turned loose in said
creek, at a point above the lands of said Thomas Dorris, about
1,500 sawlogs, many of them of considerable size and length,
which said logs were, by the freshet then occurring, carried down
to the said rock, situated on the lands of Thomas Dorris; that
there a jam was formed and the waters of said creek were backed
and caused to overflow upon the lands of Thomas Dorris,
occasioning damage thereto in the sum of $ 166.75.
"10. That the said damage as aforesaid resulted from the
carelessness and negligence of the plaintiffs."
Upon the facts as found the following conclusions of law were
entered:
"1. That the Elochoman creek, from the point where the same
empties into the Columbia river, up to the lands of plaintiffs,
is navigable for logs at sufficiently regularly recurring periods
and for sufficient lengths of time to enable the same to be used
profitably for the floating of sawlogs to market.
"2. That the public have a right to the use of said stream for
the purpose of floating sawlogs and other products of the forest
to market, provided that said use be exercised with such
reasonable care as will not endanger the property of the riparian
proprietors.
"3. That the plaintiffs are indebted to the defendant Thomas
Dorris in the sum of $ 166.75, his damages so as aforesaid
sustained."
It is contended that some of the important findings are not
justified by the evidence, but an examination of the evidence
convinces us that there was evidence upon which to found the
findings; and, since the trial court heard all the evidence, we
believe he is better qualified than this court to pass upon its
weight and credibility. We find no error in the conclusions of
law.
{*643} Decree was entered, in accordance with the findings and
conclusions, that the Elochoman creek, from the point where it
empties into the Columbia river up to and through the lands of
Thomas Dorris, and up to and through the lands of plaintiffs, is
navigable for logs and other products of the forest; that the
public have a right to use said Elochoman creek for the purpose
of floating sawlogs and other products of the forest to market,
provided that said use be exercised with such reasonable care as
will not endanger the property of riparian proprietors. The said
Thomas Dorris was awarded damages in the sum of $ 166.75,
together with his costs, and said William Dorris was awarded his
costs. The temporary injunction theretofore issued against Thomas
Dorris and William Dorris was dissolved.
The complaint of Thomas Dorris, on his appeal, that the court
erred in the matter of granting and continuing the temporary
injunction heretofore referred to in this opinion, we think,
calls for no consideration here. If the court below committed
error, this court cannot now reverse its proceedings in the
matter of the temporary injunction, for the reason that any such
error was corrected by the court itself when it dissolved the
temporary injunction at the final hearing. If harm occurred by
reason of the temporary injunction, the remedy is now by suit
upon the injunction bond for wrongfully suing out the injunction.
The real question to be determined upon the merits is, What are
the respective rights of the land owner and the log driver upon a
stream of the character of Elochoman creek? The act of March 17,
1890 (Session Laws of 1889-90, p. 470; Bal. Code, §§ 4378-4386,
inclusive), defines the powers and duties of corporations
organized for the purpose of building booms and catching logs and
timber products therein. Section 9 of said act provides:
{*644} "All meandered rivers, meandered sloughs and navigable
waters in this state shall be deemed as public highways, and said
corporations shall be declared public corporations for the
purpose of this act; and the improvement of such streams, sloughs
and waters shall be deemed and declared a public use and
benefit."
Under this section all "meandered rivers and meandered sloughs "
shall be deemed as public highways for the purposes specified in
the act, viz., booming and floating logs and timber. Nothing
further is needed to establish them as such public highways, when
it is shown that they are meandered. The section further provides
that all "navigable waters " shall be deemed as public highways
for the same purpose. If the stream is not meandered, it must
then be determined whether it is or is not navigable in fact for
floating logs or timber. If navigable for such purpose, it is a
public highway for that purpose. The court finds Elochoman creek
to be a short stream, eighteen miles in length, with an average
width of one hundred feet, and a depth of about three feet, and
that the stream can, during annually recurring freshets, be used
profitably for the floating of logs to the Columbia river to
market, and that it has been so profitably used for the last
twenty-five years. The stream must therefore be held to be a
public highway for the purpose of floating logs and timber to
market. Being a public highway for such purpose, what are the
relations of the land owner to the stream? Thomas Dorris is the
owner of the land on both sides of the stream. If such a stream
as this is included in the provisions of § 1, art. 17, of the
constitution of Washington, then the state is the owner of the
bed of the stream below ordinary high water mark. We do not
believe, however, that the said constitutional provision was
intended to include streams of the character of this one, but
only such as are navigable for general commercial purposes. This
stream {*645} is of such a character that its use as a public
highway is restricted to one purpose, viz., that the floating
logs or timber; and we think a distinction must be drawn between
such streams and those which are highways for general trade and
commerce. The title to the bed of the stream, therefore, passed
from the government to the land owner, but it is subject to the
right of the public to use the stream for floating logs and
timber. This right is further given by virtue of the act of 1890
aforesaid to corporations, under conditions therein contained.
Again, the same right is continued with further provisions under
the act of March 18, 1895 (Session Laws 1895, p. 128; Bal. Code,
§§ 4387-4394). These provisions have been held constitutional by
this court in East Hoquiam Boom & Logging Co. v. Neeson, 20 Wash.
142 (54 P. 1001). With this right given to a corporation to use
the stream as a public highway, there is no reason, in principle,
why an individual or partnership, as in this case, may not use it
as such. Indeed, if a corporation only could so use the stream,
the act would be of doubtful force, because of its
discrimination. The statute provides how such corporations may
improve the stream, by removing obstructions, and they may also
become common carriers to drive all the logs delivered into their
charge, and may collect toll therefor. But the right of
individuals or partnerships to use the stream as a highway cannot
be denied. But neither such corporation nor individuals can
interfere with the soil in a stream of the character of Elochoman
creek, the bed of which is owned by the land owner, without the
land owner's consent, or, by operation of law, with due
compensation made. The same reasoning applies with even greater
force to the use of the banks of the stream, as was sought to be
done in this case. Lownsdale v. Gray's Harbor Boom Co., 21 Wash.
542, 547 (58 P. 663).
{*646} Appellants, therefore, have the right to drive their logs
down the stream as long as they do so without damage to the land
owner. But, if the use of the freehold or shore rights are
required, they must acquire them, either as individuals, or by
condemnation in a corporate capacity, as provided by the
statutes above mentioned. It having been found that the jam was
caused by the appellants' careless manner of driving the logs,
the consequent damage to the land is chargeable to them; and,
since we find no substantial error in the record, the judgment is
affirmed.
DISPOSITION
Affirmed.
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