35 Wash. 662, 77 P. 1046 MATTHEWS V. BELFAST MFG. CO. (S. Ct.


                WOODMAN MATTHEWS, Respondent,

                          No. 4982
35 Wash. 662, 77 P. 1046
                September 21, 1904, Decided

Appeal from a judgment of the superior court for Skagit county,
Joiner, J., entered July 17, 1903, upon findings in favor of the
plaintiff, after a trial on the merits before the court without a
jury, enjoining the obstruction and unlawful use of a logging

STREAM FOR FLOATING LOGS. A private corporation which is not a
boom company is not entitled to exercise the right of eminent
domain against a lower riparian owner for the purpose of
facilitating the floating of logs down a stream by means of dams
and artificial freshets, which damage the lower proprietor and
interfere with his use of the stream.
ARTIFICIAL FRESHETS -- INJUNCTION. The floating of logs down a
stream by means of dams and artificial freshets at a time of the
year when it is not navigable in its natural state, is an abuse
of the right of navigation, for which an injunction will lie at
the suit of riparian owners injured thereby.
WATERS -- INJUNCTION -- TERMS OF. In such a case an injunction is
not too sweeping where it permits the defendant to use its dam
for lawful purposes.
the defendant's abuse of the rights of navigation, by the use of
dams and the creation of artificial freshets in a logging stream,
will not be defeated by the fact that the plaintiff, also,
maintains a dam for the same purpose, where the evidence shows
that his use thereof is reasonable and proper, and his dam is not
a nuisance.

Million & Houser, for appellant.
Smith & Brawley and Carr & Preston, for respondent.

{*663} The appellant and respondent each own timber lands in
Skagit county, through which the east fork of the Samish river
flows; the lands of the appellant being higher up the stream than
those of the respondent, although the lands abut upon each other.
The Samish river is an unmeandered stream, having an average
width between banks of some fifty feet, and during the wet season
of the year is capable of floating such mill timber as grows upon
its banks, and in its immediate vicinity. In the dry season it is
not navigable without artificial aids, having at such time a
depth of less than two feet in many places. The respondent, some
years prior to the commencement of this action, had been engaged
in logging on his own premises, {*664} and had constructed a dam
across the river on his own lands some distance below the lands
of the appellant. This dam he has kept up ever since, maintaining
therein, as he says, suitable gates through which logs pass
unobstructed during the time of the year when the stream is high
enough to float them.
In the summer of 1903, the appellant began logging off of its own
lands. To facilitate the work it constructed a dam across the
river about one and one-half miles above the respondent's dam.
This dam it used, not only to retain logs until they were ready
to be sent down the river, but, also, to create a storage basin
for water, by means of which it could cause splashes, or
artificial freshets, in the stream, and thus drive logs down the
same after it became too shallow to float them in its natural
state. The appellant operated in this manner: It would put into
the bed of the river as many logs as could be readily driven;
then it would open the gates of its own dam, and drive the logs
down the stream as far as the dam of the respondent; from there,
by repeated splashes from both dams, it would drive them to the
deep waters of Bellingham Bay, into which the Samish river flows.
In these operations the appellant found it necessary to use the
respondent's dam, and it took possession of the same against the
consent, and over the protest, of the respondent, and used it as
if it were its own property. The appellant, also without the
consent and against the will of the respondent, made such use of
the respondent's land bordering the stream as it found necessary
and convenient in order to drive its logs. The artificial
freshets or splashes, created by means of the dams, drove the
logs down the stream in lots or jams, which tore down and washed
away the river's banks, forming a river bed out of what was
before tillable land.
{*665} The respondent instituted this action to enjoin the
appellant from using his property in the manner stated, and from
floating logs down the stream across his property by means of
artificial freshets and splashes, alleging, in his complaint,
substantially the foregoing facts.
To the complaint the appellant answered, denying all its material
allegations, and, by way of cross-complaint, alleged that it had
gone to great expense to prepare for logging its premises, and
that, if stopped by the court, would suffer irreparable injury;
further alleging that it had instituted condemnation proceedings
against respondent, for the purpose of acquiring the right to use
the stream by means of splash dams therein, where necessary. It
also alleged that the dam of respondent was an obstruction to
navigation in the stream, and therefore a nuisance. It prayed for
relief appropriate to matters set up in its answer. The new
matter in the answer was put in issue by a reply, and a trial had
before the court, resulting in a permanent injunction against the
appellant, enjoining it from operating either of the splash dams
mentioned, and from in any manner interfering with the possession
or use of the respondent's land. There was a claim for damages
made by the respondent for injuries already accrued, but the
amount of the damages, if any, the court expressly refused to
find, leaving the question as to the amount open to a
determination by a jury, in an action to be brought for that
purpose. This appeal is from that judgment.
The first contention on the part of the appellant, namely, that
it has the right to condemn a right of way along the stream over
the respondent's land for a logging way, is determined against it
by the case of Healy Lumber Co. v. Morris, 33 Wash. 490, 74 P.
681. It was there held that the {*666} statute attempting to
confer upon the owner of timber lands the power to condemn a
right of way for a logging road and lumbering purposes was in
contravention of the state constitution, and therefore void. As
there is no such right independent of the constitution and
statute, it is plain that the appellant's action to condemn can
avail it nothing, and its plea that it has brought such an action
does not require the court to await its result before restraining
it from making an unlawful use of the respondent's property. It
is true, this court has upheld the statute relating to the
organization of boom companies, which had for its object the
improvement of streams, such as the one in question, so as to
make them floatable for logs at all seasons of the year, but that
statute does not aid the appellant. The appellant is not
organized as a boom company. It does not purpose improving the
stream for the use of the public, and engaging in the business of
transporting logs down it for the public, but seeks to acquire
the right for its own private benefit, to the exclusion of every
one else. This it cannot do by the exercise of the right of
eminent domain. It has no power to exercise such a right. Healy
Lumber Co. v. Morris, supra.
The next contention is that the court erred in enjoining the
appellant from floating logs down the stream by means of
artificial freshets and splashes. The argument is that the stream
is a navigable one, and that it has the right to use it for the
purpose of floating logs, and is liable only for a misuse or
abuse of the privilege, and that the evidence fails to show that
there was any abuse or misuse in the present case. The stream in
question is undoubtedly navigable for floating logs for a part of
the year, and during that time the appellant, as well as others,
may use it for that purpose. But that is not the case before us.
The {*667} appellant was not attempting to float logs during the
navigable season of the year, but was attempting to do so when
the stream, in its natural state, would not float them. It sought
to remedy this by creating unnatural conditions -- by the
creation of artificial freshets -- which conditions damaged and
destroyed the respondent's property. This was an abuse of the
right of navigation, and for that an injunction would properly
lie. Walkinson v. McCoy, 23 Wash. 372, 63 P. 245; Monroe Mill Co.
v. Menzel, ante, p. 487.
It is next said that the injunction is too sweeping, in that it
prohibits the appellant from operating its dam for any purpose,
but a reading of the context of the judgment clearly shows that
all that was meant was that the appellant should not operate it
to float logs down the stream by means of artificial freshets and
splashes, and not that it could not use it for such other
purposes as it might find convenient in the conduct of its
It is further contended that the respondent is not entitled to
relief because his dam is an obstruction to navigation, and he
ought not to be allowed to complain of the appellant so long as
he was making a misuse of the stream. But if this were a
sufficient reason for denying the respondent the right to relief,
we fail to find that the contention is supported by the evidence.
An officer of the appellant did testify that logs could not be
floated down the stream without making use of the respondent's
dam, but he was speaking of floating logs by means of freshets
and splashes, and not of floating when the stream would convey
them in its natural state. On the other hand, the respondent
testified that his dam did not obstruct the river, that he had
constructed in it gates through which logs and other timber
products could pass whenever the stream was capable of floating
them. We think, therefore, that {*668} the evidence was
insufficient to warrant the court in declaring the dam a
nuisance, and ordering its removal. In order to successfully
market logs by the use of a stream of this character, dams and
booms are necessary; in fact, such streams can hardly be used for
navigating logs without them. Being necessary, their use is
lawful when reasonably exercised, and it is only when the right
is misused or abused that other navigators can complain of them
as obstructions. We do not wish, however, to be understood as
foreclosing the appellant's right to complain, should the dam
prove to be an obstruction, when an actual test under normal
conditions is made. Should it then prove to be a nuisance, the
appellant, or any one injured by it, may have it corrected by an
action brought for that purpose.
As we find no substantial error in the record, the judgment
appealed from will stand affirmed.