Funk v. Inland Power & Light Co., 164 Wash. 110, 1 P.2d 872

 110    FUNK v. INLAND POWER & LIGHT CO.
                Opinion Per BEALS, J.           164 Wash.

     [No. 23152. Department Two. August 12, 1931.]

GEO. H. FUNK et al., Appellants, v. INLAND POWER &
      LIGHT COMPANY et al., Respondents. «1»

[1] EMINENT DOMAIN (59, 165) - COMPENSATION - INJURING
PROPERTY - REMOTE CONSEQUENCES - REMEDIES OF OWNERS -
INJUNCTION. A non-riparian owner of timber lands near a
stream, navigable for the flotation of logs, is not entitled
to resort to the extraordinary remedy of injunction to prevent
the construction of a dam, under permits to appropriate the
entire flow of the river for the purpose of generating
electrical energy as authorized by Rem. Comp. Stat., SS 7351,
et seq., "subject to existing rights" (meaning rights existing
under general laws), where it is not shown that plaintiff has
ever utilized the river or was preparing to do so, but merely
alleged that at some future time it might be necessary to use
the river to get the timber to market.

Appeal from a judgment of the superior court for
Clark county, Simpson, J., entered March 2, 1931, dismissing
an action for injunctive relief, upon sustaining
a demurrer to the complaint. Affirmed.

Geo. H. Funk, for appellants.

M. M. Conner, John A. Laing, and Henry S. Gray,
for respondents.

           FUNK v. INLAND POWER & LIGHT CO.               111
 Aug. 1931          Opinion Per BEALS, J.

holding a franchise authorizing it to drive logs down
the Lewis river to its junction with the Columbia; that
the defendant Inland Power & Light Company had
procured from the state supervisor of hydraulics,
under the "water code" of this state, permits authorizing
it to appropriate and use, at all times, at a point
on the river near Ariel postoffice (which is about
seventeen miles below plaintiffs' property), the entire flow
of the river for the purpose of generating electrical
energy, and to erect, in connection with this appropriation,
a dam two hundred feet in height across the
river, thereby impounding and holding the waters
thereof and forming a storage basin which will extend
a distance of approximately twelve miles upstream
from the dam, thus appropriating the entire flow of
the river to the generation of electrical energy at
defendant's plant; that the defendant above named
(which will hereinafter be referred to as though it
were the sole defendant in this action), through the
defendant Phoenix Utility Co., its agent, was proceeding
with the installation of its plant and the erection
of the dam across the river; that the construction of
the dam will render impracticable the driving of timber
products down the river, and will result in the destruction
of the plaintiffs' right to use the river as a
public highway for the transportation of logs; and
that because of the construction of the dam the value
of plaintiffs' property will be practically destroyed.

Plaintiffs further alleged that defendant was
installing its plant without having first lawfully acquired the
right to damage their property, and prayed for an injunction
restraining the further construction of the
dam, and for other specific and general relief. On motion,
the allegations in the complaint to the effect that
there was in existence a corporation holding a franchise
authorizing it to drive logs down the river, was

 112    FUNK v. INLAND POWER & LIGHT CO.
                Opinion Per BEALS, J.           164 Wash.

stricken, plaintiffs' application for a temporary restraining
order was denied, and a general demurrer
interposed by defendant to plaintiffs' complaint was
sustained. Plaintiffs elected to stand upon their complaint,
and the court thereupon entered judgment dismissing
the action, from which plaintiffs appeal.

Appellants' complaint is well drawn, and presents
clearly the issue of law as to whether or not a nonriparian
owner of a tract of timber land can, by injunction,
restrain the construction of a dam, being
erected pursuant to proper governmental permits,
upon a river which is the only highway along which
his timber products can be carried to market, when
the construction of the dam causes no direct physical
damage to or invasion of his property, nor interferes
in any way with his access to the stream.

The complaint does not allege that appellants have
ever utilized the river, or that they were, at the time
of the institution of the action, in process of cutting
their timber, or that they were preparing to do so;
appellants' contention being that, because they would
at some future time find it necessary to use the river
for carrying their timber to market, the construction
of respondent's dam at a point on the river below
their property will prevent the uninterrupted driving
of their logs, and that such inevitable future inconvenience
resulted in present damage to them within
the constitutional prohibition against the taking or
damaging of property without first compensating the
owner, and in the diminution of the market value of
their land in an amount equal to the entire present
value thereof; and that, therefore, appellants are entitled
to enjoin the construction of the dam until such
time as their damages have been ascertained and paid
in the manner provided by law.

In the case of Funk v. Bartholet, 157 Wash. 584, 289

          FUNK v. INLAND POWER & LIGHT CO.                113
 Aug. 1931          Opinion Per BEALS, J.

Pac. 1018, this court decided questions raised by appellants
on appeal from a judgment of the superior
court dismissing appellants' appeal from an order of
the supervisor of hydraulics granting permits, inter
alia, authorizing the construction of the dam, and the
impounding of the water, at Ariel. Reference is made
to the opinion in the case cited for a more complete
understanding of the issues raised in this action. It
was held that appellants stated no ground which authorized
the granting of judicial relief against the
supervisor in connection with the granting of the permits
to respondent, and the judgment of the superior
court dismissing appellants' action, upon sustaining
a demurrer to their complaint, was affirmed.

For the purposes of this appeal, we assume that the
Lewis river and the north fork thereof constitute, to
the full extent contended for by appellants, a public
highway for the floatage of timber to market. Rem.
Comp. Stat., SS 8407; Monroe Mill Co. v. Menzel, 35 Wash. 487,
77 Pac. 813, 102 Am. St. 905, 70 L. R. A.
272. We also assume that appellants are entitled,
under Rem. Comp. Stat., SS 6747, to condemn a "way
of necessity" to the river, and thereby gain access
thereto for the purpose of making the same available
to their timber.

[1] Appellants base their claim upon that portion
of article I, SS 16, of our state constitution, which
provides that

"No private property shall be taken or damaged for
public or private use without just compensation having
been first made, or paid into court for the owner,"
and cite many authorities, including State ex rel. Smith
v. Superior Court, 26 Wash. 278, 66 Pac. 385; State
ex rel. Burrows v. Superior Court, 48 Wash. 277, 93
Pac. 423, 125 Am. St. 927, 17 L. R. A. (N. S.) 1005;
Jacobs v. Seattle, 93 Wash. 171, 160 Pac. 299, L. R. A.

 114    FUNK v. INLAND POWER & LIGHT CO.
                Opinion Per BEALS, J.           164 Wash.

1917B 329; Wong Kee Jun v. Seattle, 143 Wash. 479,
255 Pac. 645, 52 A. L. R. 625; In re Martha Lake Water
Co., No. 1, 152 Wash. 53, 277 Pac. 382; and McCarthy
v. Metropolitan Board of Works, L. R. 7, English and
Irish App. 243.

Upon the point that this court has held that the
physical proximity of timber lands to a floatable river
vests in the owner of such lands a property right
incident thereto, by way of a right to use the river for
floatage, which right falls within the purview of the
section of our state constitution above quoted, appellants
cite State ex rel. South Fork Log Driving Co. v.
Superior Court, 102 Wash. 460, 173 Pac. 192; Tacoma
v. Olympia Door Co., 121 Wash. 404, 209 Pac. 836;
and Tacoma v. Hunsen, 121 Wash. 700, 209 Pac. 837.

These were all condemnation cases. The first came
to this court on a writ of review, bringing here for
consideration an order of necessity entered by the superior
court in favor of the condemnor, Willapa Power
Company, in a proceeding instituted by it for the purpose
of condemning property and property rights
owned by relators along or adjacent to the south fork
of the Willapa river. A reading of the opinion of this
court in the case of State ex rel. South Fork Log
Driving Co. v. Superior Court, 94 Wash. 691, 163 Pac. 15,
is conducive to a better understanding of the decision
in the case cited. It is clear that, in so far as, by the
improvement, any land was actually taken or damaged
by flooding or other physical invasion, the owner was
entitled to damages, but we do not find that the case
is authority for appellants' contention that they are
entitled, under the facts here shown, to have their
damages ascertained in the manner provided by law
before respondents may lawfully proceed to install the
dam at Ariel. The question at issue was the legality

           FUNK v. INLAND POWER & LIGHT CO.           115
 Aug. 1931          Opinion Per BEALS, J.

of the order of necessity, which, it was determined,
was properly entered by the superior court.

In the case of Tacoma v. Olympia Door Co., supra,
for a complete understanding of which reference
should be had to the cases of Tacoma v. Mason County
Power Co., 121 Wash. 281, 209 Pac. 528, and Tacoma
v. State, 121 Wash. 448, 209 Pac. 700, it appeared that
the defendant, which was the owner of riparian timber
lands along the north fork of the Skokomish river and
below a dam which the city of Tacoma was proposing
to erect on that stream for the purpose of generating
hydro-electric power, had been granted a new trial
after an award by the condemnation jury of nominal
damages only. From the order granting a new trial
the city appealed; in the course of the opinion, the
court said:

"The construction of the hydro-electric generating
plant involved the erection of the dam which would
divert the waters of the north fork of the Skokomish
river. The Olympia Door Company, the respondent,
owned lands riparian to the river below where the dam
would be constructed. Upon these lands was valuable
limber, and in logging them the respondent would be
able to use the river for the purpose of getting the
logs to market if the river was a floatable stream.

"The issue is whether the river was floatable in its
natural state in a commercial sense. If it was, the
respondent would have the right to substantial damages.
If not, only nominal damages. The evidence of the appellant
was to the effect that the river was not floatable
for timber products. The evidence of respondent,
if believed by the jury, would sustain a finding that
it was floatable."

The sole question presented to this court was
whether or not the trial court, the evidence being
conflicting, abused its discretion in granting the
condemnee's motion for a new trial. It was held that no

 116    FUNK v. INLAND POWER & LIGHT CO.
                Opinion Per BEALS, J.           164 Wash.

abuse of discretion appeared, and the order granting
the new trial was sustained.

In the case of Tacoma v. Hartsen, supra, relied upon
by appellant, appears the following opinion, per
curiam:

"This is a companion case to the case of Tacoma v.
Olympia Door Co., 121 Wash. 404, 209 Pac. 836, and
upon the authority of that case the judgment will be
affirmed."

This was also an appeal by the city from an order
granting a new trial on motion of the condemnee. Appellants
state in their brief that, in the Hartsen case,
the land owned by the condemnee was, in fact, nonriparian
and lay half a mile from the main stream of
the Skokomish river, below the junction of the north
and south forks; whereas the tract owned by the
Olympia Door Company was riparian to the north fork
of the river, the flow of which was entirely diverted
by the dam. Assuming that the Hansen land was so
situated, the situation presented by their claim is, in
many respects, analogous to that of appellants. The
per curiam opinion above quoted, however, is authority
only for the facts therein stated, and adds nothing
to the language contained in the companion case
therein referred to. The sole question to be determined
by this court was: Did the trial court abuse its
discretion in granting the motions for new trials? Under
these circumstances, the cases, although pertinent to
the inquiry here presented, are not controlling. The
facts stated by appellants were evidently not deemed
important in deciding the questions presented in the
Hansen case.

As was pointed out in the case of Funk v. Bartholet,
supra, respondent's permits or licenses from the
supervisor of hydraulics nowise authorize the
respondent to take or damage appellants' property before

           FUNK v. INLAND POWER & LIGHT CO.               117
 Aug. 1931          Opinion Per BEALS, J.

compensating them therefor, the question of whether or
not respondent's improvement violated any of the appellants'
rights being without the issues determined
in the prior case and expressly reserved from the decision
thereof, the permits granted by the supervisor
of hydraulics being necessarily subject to existing
rights. Rem. Comp. Stat., SS 7351 et seq. The phrase
"existing rights" has, however, no special or unusual
significance, but refers only to such rights as exist
under general laws.

As a general proposition, courts of equity are slow
to intervene, particularly by way of the drastic remedy
of injunction, where the damage complained of is
doubtful, remote or speculative, and particularly in
cases where the relief, if granted, will manifestly
result in injury to the party enjoined in an amount
greater than any damage which plaintiff can possibly
suffer from the acts complained of.

In the case of Sultan Water & Power Co. v. Weyerhauser
Timber Co., 31 Wash. 558, 72 Pac. 114, there
was presented a state of facts somewhat analogous
to the situation here. The plaintiff instituted the
proceedings to condemn a right-of-way one hundred
feet in width across defendant's property for a ditch
and flume, and also sought to condemn land for the
erection of a dam across the Sultan river. The defendant
owned considerable timber land in the vicinity,
some riparian and some not, some contiguous and some
separate tracts. The jury awarded the defendant the
sum of fifty-five dollars, which, it was conceded, was
an adequate award for the land taken and for damages
to the remainder of the tract described in the petition
for condemnation. The defendant appealed, complaining
of rulings of the trial court limiting its evidence
to the lands described in the petition. The judgment
appealed from was reversed, this court holding that

 118    FUNK v. INLAND POWER & LIGHT CO.
                Opinion Per BEALS, J.           164 Wash.

the trial court erred in not receiving evidence offered
by appellant concerning damages which it contended
it would suffer in connection with certain of its land
Which this court held constituted one contiguous tract
and part of the land described in the petition. Referring
to other contentions urged by appellant, this
court said:

"In regard to the other sections of land, the court,
we think, properly rejected evidence as to damages
thereto, because they are not adjacent to section 19,
and are contiguous only by reason of the fact that
section 17 has a common corner with section 19. Other
sections likewise corner with each other at a common
point. These lands are on the opposite side of the
river from the lands through which the ditch and flume
run, and are from one to five miles distant from the
proposed improvement. If they shall be damaged at
all, it is by reason of the dam across the Sultan river,
which may become an obstruction to the logs floated
down, and not by reason of the right of way condemned
across other lands of appellant, or of any improvement
upon appellant's lands. It is conceded in the
case that respondent has a right to build the dam, and
that one end of it only will rest upon the part of
section 19 owned by appellant. Appellant also conceded
that the river is navigable only for floating logs down
stream. Whether the dam across the river will injure
the lands of appellant located above it will depend
upon whether or not it is an obstruction to such navigation.
If the dam should be constructed or maintained
in such manner as to prohibit navigation, then
appellant, or any person injured thereby, may require
the removal of such obstruction, and recover his damages.
Carl v. West Aberdeen Land & Imp. Co., 13 Wash. 616
(43 Pac. 890); Gould, Waters (3d ed.), sec.
110. If respondent has a right to build the dam across
the river, if he proposed to do it in a lawful manner,
so as not to prohibit navigation, and so that each end
would rest on his own land, and no injury were done
by reason of flooding upper lands, certainly no one

           FUNK v. INLAND POWER & LIGHT CO.           119
 Aug. 1931          Opinion Per BEALS, J.

could complain. It would not be necessary, in such
event, for respondent to litigate in advance any injury
which might be claimed by upper proprietors by
reason of the increased cost in navigating the river. The
fact that respondent proposes to erect a dam with one
end thereof upon a piece of appellant's land, which is
being condemned for the purpose, does not require
respondent to litigate in such condemnation proceedings
damages which may be claimed by appellant, or others
who may own lands above, for an obstruction to
navigation of the river. The right to the navigation of the
river is a right common to the public. It is not a part
of the land of appellant, and not an incident or
appurtenant thereto, and therefore appellant cannot
recover for an obstruction to the navigation of the river
until he has suffered an injury. The argument is made
that on appellant's lands are large bodies of timber,
which can be more cheaply taken to market down the
Sultan river than any other way, and that the
construction of this dam will add a dollar per thousand
feet to the cost of marketing this timber, resulting in
a loss of something like $80,000 to appellant.
Conceding these facts to be true, they afford no reason for
litigating that question of damages in this proceeding,
because these damages do not flow from the taking or
damaging of appellant's lands. They flow from the
obstruction of a highway, which appellant and all
others who will be damaged in the same way, if at all,
are privileged to use. If appellant owned no lands,
but was engaged in logging, buying, and floating logs
down the Sultan river from above this dam to the
market, it would be injured in the same way, and
probably to the same extent, as it now claims it will be
injured. Yet under such circumstances no one would
claim that appellant would be a necessary, or even a
proper, party to an action to condemn lands on which
to build a dam across the river. Nor would it be
necessary that damages be assessed and paid to
appellant before respondent could build the dam. An
adjudication of damages in this case will not be an
adjudication of injuries which may arise in regard to
the navigation of the river."

 120    FUNK v. INLAND POWER & LIGHT CO.
                Opinion Per BEALS, J.           164 Wash.

Appellants seek to distinguish the case last cited,
arguing that, as the dam referred to in that case was
only twenty-five feet in height, and as it was proposed
to take only sixty second-feet of water from the river,
it should be assumed that it would be perfectly feasible
to drive timber products, without injury thereto,
over the dam. It is, of course, evident that the dam
which it was proposed to erect across the Sultan river
was a pigmy compared with the giant which respondent
is erecting across the north fork of the Lewis river.
The Sultan river case is, therefore, not controlling
here, but we consider that the principles upon which
the same was decided are sound, and should properly
be applied to the questions here presented.

In certain cases involving the taking or damaging
of land, the fact that the same enjoys access to a
navigable river, or to a highway, or to a railroad, may
be a proper element to be taken into consideration, but
we find no authority which would authorize a holding
that appellants have the right to enjoin the construction
of respondent's dam, taking into consideration
all facts disclosed by the record before us. The consequences
of the laying down of such a rule of law
would be so far-reaching that it is difficult, if not
impossible, were it a profitable subject of inquiry, to
imagine the situations in which such a decision would be
cited as authority for the exercise, by courts of equity,
of the extraordinary power of injunction.

Appellants' right to use the highway known as the
Lewis river, for floatage, is a general right enjoyed
by them in common with the public at large, although,
of course, appellants, as owners of a tract of adjacent
timber land, have a special interest, in that they will,
in all reasonable probability, at some future time,
desire to avail themselves of the facilities afforded by
the flowing river, while the existence of the highway

           FUNK v. INLAND POWER & LIGHT CO.           121
 Aug. 1931          Opinion Per BEALS, J.

is of little concern to the general public. This is,
however, true of many highways which are used largely
by those living on or near the same. The interest of
appellants in the highway is no greater than that enjoyed
by the owners of thousands of acres of land
within the water shed of the river, and it is conceivable
that, in this or a similar case, the owners of land lying
without the water shed might also desire to use the
river as their most convenient outlet.

If appellants are correct in the position which they
take in this case, it is evident that no such plant as
that being constructed by respondent may ever be installed,
either by the state or a private party, because,
as a prerequisite to the installation of such a dam, all
the timber land for which the stream from which the
power is to be obtained affords an outlet must be purchased
or condemned. This, of course, states an extreme
case, but it is strictly in accord with the allegations
of appellants' complaint. While it is true that
appellants are entitled to enforce their legal rights, no
matter what the consequences may be, in such a proceeding
as this a court of equity must carefully consider
the entire situation, and will resort to the extraordinary
remedy of injunction, where the consequences
of the issuance of the writ will be so far-reaching
as here, only where it clearly appears that
such action is required by well-recognized principles. of
law.

We are convinced that appellants are not entitled,
upon the allegations of their complaint, to equitable
relief by way of injunction, and that the authorities
cited by appellants do not require the granting of the
relief for which appellants pray. Our conclusion is
supported by the following authorities: Eisenbach v.
Hat field, 2 Wash. 236, 26 Pac. 539, 12 L. R. A. 632;
Wintermute v. Tacoma Light & Water Co., 3 Wash.

 122    FUNK v. INLAND POWER & LIGHT CO.
                Opinion Per BEALS, J.           164 Wash.

727, 29 Pac. 444; Ferry-Leary Land Co. v. Holt &
Jeffery, 53 Wash. 584, 102 Pac. 445; Sholin v. Skamania
Boom Co., 56 Wash. 303, 105 Pac. 632, 28 L. R.
A. (N. S.) 1053; Bouckaert v. State Board of Land
Commrs., 84 Wash. 356, 146 Pac. 848; State v. American
Fruit Growers, 135 Wash. 156, 237 Pac. 498;
Spooner v. McConnell, 22 Fed. Gas. 939; and Miller
v. Mayor of New York, 109 U. S. 385.

As to whether or not appellants, at some future time,
may be entitled to some relief, either in an action at
law to recover from respondent damages because of
some injury which it may appear appellants have suffered
by reason of respondent's acts, or by way of
some other proceeding, we express no opinion.

The portion of appellants' complaint stricken by the
trial court on motion added nothing to appellants'
complaint, and we hold that the ruling complained of
was correct.

The judgment of the trial court was right, and the
same is hereby affirmed.

TOLMAN, C. J., PARKER, and BEELER, JJ., concur.