Aberdeen herald. [volume] (Aberdeen, Chehalis County, W.T.) 1886-1917, 1910-06-06
rights OF LOGGERS
no OCCUPY STREAMS DEFINED BY
THE SUPREME COURT,
A Decision OF Great Import to Log.
ging Industry Is Handed Down by
Supreme Court. When Necessary
the River Nav Be ObSiruCted by
Logs.

Inc StaIe supreme court nleu an
opinion last week in the case of C.
H. Pealer VS. Grays Harbor Boom Co.
ana nuMptulips driving Co., in which
is announced for the first time, the
right of those engaged in logging to
Obstruct streams when necessary. The
contention between loggers and own
ers OF land abutting on streams is as
old as the numbering business and
the opinion is of such importance that
it is given in full below:
The respondents are allied corpora
tions, having the same stockholders
and a common management The
case was bef, re this court in another
form. See state ex rel. Grays Harbor
Boom Co., v. Superior court, 13 Wash.
Dec. 13, for more complete state
ment of the facts. The boom company
has a boom extending up the Hump
tulips river from its mouth for a dis
tance of mile or more. The Driv-
ing company has it's splash dams for
ty and fifty miles respectively above
the mouth of the river. The petition
er owns land contiguous to the river
and small slough called Berg's
slough, about one-fourth of a mile
above the boom. The Humptulips
river is a tidal stream and flows into
Grays Harbor. The object of the ac-
ton is to condemn the right to flood
and damage the petitioners land. The
court found:
"That the smaller boats of
Grays Harbor, drawing from three
to four feet of water, can get
into the mouth of said river and
up to the same for distance
on the tides; that the said river
is navigable in a restricted sense
in tide water; that occasionally
smaller boats have been in the
habit of visiting said river for
special purposes: such as taking
in supplies, or scows; that said
| river is a floatab'e stream for its
! entire length; that such boats
as can get into the river and ma
vigate thereupon can now, and
will in the future be able to go
through the crennel left open by
the said boom and up to the up
per end of the boom"
That in the process Of driving logs
to the boom, both in feed season and
by artificial freshets, the logs become.
contested above the boom and block
the river Immediately above the boom
and opposite the petitioners land, and
obstruct navigation at that point for
considerable and material portion
of the year," that the blocking of the
stream to the extent stated "is the
necessary result of the operation of
the Driving company, and that such
blocking is unavoidable; that the con-
templated use is a public use; that
the public interest requires the prose-
cution of the enterprise; and that the
Boom company and the Driving COM
pany are entitled to condemn the priv
ilege sought.
The petitioner seeks to reverse the
decree by writ of review. The point
relied upon is that the ultimate effect
of the decree is to permit the Boom
company an dthe Driving company to
obstruct navigation, and this the Pc
titioner asserts is to permit it to COM
nit public nuisance The latest
legislative expression touching boom
and driving companies is laws OF
1905, pages 10S ct seq. Section 4 OF
this act, which is an amendatory one.
provides that corporations organized
for clearing and improving rivers
and streams for the purpose OF driv-
ing, sorting, holding and delivering
logs and other timber products there
on, shall have power. in any OF the
rivers and streams Of the state. to
improve and straighten the channel,
build wing dams and sheer booms,
construct dams and gates or other
wise, for the purpose of storing wa
ter with which to produce artificial
freshets, and for the purpose OF hold
ing logs and other timber products;
provided "that no such wing dam.
sheer boom, dam with gate or 9TH
erwise, shall be constructed, main-
tanned or used, as to in any manner
obstruct or impede the outlet of such
stream; and provided further. that
if any such wing dam. sheer boom,
dam with gate or otherwise. shall be
so constructed. maintained or used as
to interfere with the use for any pur-
pose of the waters of any stream so
damned or used, or any OF its trib-
utaries, or in any manner to in1ure
or damage any lands adjacent to
such streams or its tributaries, COM
pensation for such interference with
the use of such water and for any
such injury or damage, shall be first
assessed and determined and the ap-
propriation thereof may be made by
the exercise of the power of eminent
domain. 1t will be observed that the
ultimate relief sought in this action,
viz, the right to flood the land of the
petitioner, is expressly authorized.
The only limitation is that the out
let of the stream shall not be OBJ
structed. The court expressly found.
and the evidence shows, that there is
an open channel along the boom, and
that the only obstruction to naviga-
ton is above the boom. The evidence
shows that the river is navigable in a
restricted sense for distance of
three or four miles from its mouth