Aberdeen herald. [volume] (Aberdeen, Chehalis County, W.T.) 1886-1917, 1906-05-07

A decision was handed down last
Thursday by Judge Chapman, of Tacoma,
in the cases of J. P. 0. Lownsdale, O.
r. Burrows aid F. K. Hscock vs.. the
Grays Harbor Boom 20. of so sweeping
a nature as will, if sustained in the upper
court, prove body blow to the logging
industry OF the state wherever such
operations are carried on by the use oil
the waterways to float the logs to mar.
ket. In the case in point, it is said the
testimony showed there was but abou,
40 acres OF cultivated land on the river
where the boom company operates, while
logs to value of 100000 are floa ed
to market on that river annually. Judge
Chapman, sitting for Judge Irwin, heard
these cases in Aberdeen last month, and
the decision rendered appears to surprise
both sides of the cases, the boom com
pany as it would be put out of business
should it stand, and the plaintiffs BY
reason Of it's being more sweeping than
expected.
This decision, if it is the law, will stop
the use OF waterways for floating of logs
in all the smaller streams of the state
where booming is required, a. no con-
cern would provide expensive booms
where it waS subject to be sinched for
damages BY svery riparian owner in its
vicinity. Tat portion 81 the opinion Of
Judge Chapman affecting the riparian
rightsof fbootr companies and shorsi land
owners is given below:
In the exercise of its control
overnavigable waters the state has author.
lied the incorporation of boom companies
end granted to them certain rights and
privileges to use and operate upon such
waters, and the defendants complying
with the state's.requirements, and under
permission OF the United States govern
ment, acting through it's Secretary of
War, are: one maintaining a boom and
the other driving logs upon the Hump.
tulips river. In this connection it may
be noticed that the permit given by the
Secretary of War to the Grays Harbor
Boom company to construct and main
tain 10y boom in the Humtulips river
is conditioned that the company shall
maintain at all times for the use OF small
craft a obanual Gft,, foot ,r;Jo .,j ,I.oa
feet deep at mean hign water with the
river at its ordinary summer stage, ex-
tending from the head of the boom to
the mouth of the river, and that the
company shall remove or modify it's
structures, and this upon notice from the
local engineer, should the same at any
time prove to be an unreasonable OBJ.
struction to navigation, and it is express.
ly provided therein that said permit
simply gives permission to do the work
authorized aud that it does not give any
property rights and does not authorize
any injury to private property or invasion
OF private rights. This is legitimate
use OF the river as highway. Their
charters are quasi public. giving a power
to acquire rights upon stream for the
purposes contemplated by law. A boom
company or a driving company must
keep within the limit of its powers. and
these will be strictly construed. Neither
corporation have been given any exclu.
sive right of navigation or hoatage there
on. AS before said, the legislature of
this state has provided that all mean.
dered streams shall be deemed public
highways; being public highways the
public lave a right to use thereof, as
they would have right to the use of q
public street or roadway. While the de.
PENDANTS have right to use the river,
the owners OF the abutting land and the
public also have right to use it and
neither can occupy it to the exclusion of
the other. The rights of the defendants
necessarily imply some intrusion, and to
that extent obstructing navigation, for
two bodies cannot occupy the same space
at the same time. They must, however,
leave reasonable use to the others. In
fact, Section Of the boom laws of 1895
provides that:
"Nothing shall be constructed that
shall in any way interfere with the nsyi.
CATION OF such river or stream or the use
OF its waters for any purpose" =