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

From temporary stoppages Of the chan
mel from causes over which defendants
had no control or witch did not arise
from any negligence of defendants or
abuse OF their rights in prosecuting their
work. they probably would not he re.
sponsible; they have not the right, how.
ever. to obstruct the river in such man.
ner as to render it for most of the time
inaccessible to others who may desire to
use it. and whether they are using the
river with proper care is no defense to an
abuse OF the right Of navigation. Around
dolphlns may accumulate debris and
silt, lessening the depth of the water at
those points, but this is mere incident
to. and natural result from, the use of
the river for the purpose authorized OF
which others could not complain.
These being some of the principles OF
law applicable to the use of rivers, what
are the facts disclosed in this ease to
which these principles apply? From a
careful consideration OF the voluminous
testimony is found practically this situa-
ton: the defendants for long period
past have kept the river filed with logs
from bank to bank opposite plain lifts
premises. some Of the logs being thrown
upon plaintiffs land. It is true these
logs have been put into the river by
various loggers in the upper country, but
the driving company and the boom com
pany control the disposition of these
logs in the river. By re .son of this
plaintiffs access to the river for the pur.
pose OF crossing by boat, egress down the
river to the bay or ingress from the bay
up the river to their home has been de.
MED, excepting possibly for some short
periods aggregating about three months
when the river wonld be comparatively
free. The effect OF jamming the river
with logs has been in times of high water
to cause additional overflow upon plain
TINS land increasing the danger of dam.
age to their property by reason thereof.
The grinding OF the logs against the bank
have caused some erosion, but not of a
particularly serious character. From
erosion caused by driving logs down a
river in careful and proper manner
without negligence. there would be no
responsibility. A driving company would
not be held responsible, where log
touched bank and knocked off clod.
SO long as the driving company was using
due care and diligence in prosecuting its
work; nor would the owner of a steam
boat be responsible because when land
ing at bank the bow Of the boat re-.
moved some Of the mud still less would
1t be a ground for injunction to prevent
the driving OF logs or the operation of
the boat.
The more serious question, to my
mind, is that of virtually denying plain
tiff access to, and use OF the river. This
is valuable property right. and by rea.
son of it's bordering upon stream land
frequently is of much greater value than
it would be without the waterway. n n n
Has the court the power to grant
equitable relief in cases of this kind Z?
Equity has full jurisdiction over all pri.
vate property upon any given stream to
determine individuals rights and furnish
a perpetual injunction for the protection
and enforcement of those rights. Cases
cited by counsel support this proposition,
which is reasonable and sound. Judge
Dunbar in the case above referred to,
State Elk Rel Smith vs Superior Court,
26 WASH, 2S9 quotes from Judge Cooley
these words:
1T is not competent to deprive him
Crhe citizen) OF his property and turn
him over to an action at law against
corporation which may or may not prove
responsible, and to judgment OF uncer-
tain efficiency"
And in other cases the Supreme Court
has held that injunctive relief was proper
in cases of this kind. The evidence
shows the conditions here to be continu.
ing; in fact, with the anticipated devel.
opment of the logging business they will
become ever more aggravated, and the
plaintiffs should not be relegated to .
multiplicity of suits to recover any dam.
age they may sustain. AZ the injury is
shown to be . continuing injury, the i'm.