
    [No. 3591.
    Decided December 5, 1900.]
    M. Watkinson et ux., Respondents, v. Pat McCoy et al., Appellants.
    
    NAVIGABLE WATERS — BOOMING LOGS — DAMAGES.
    In an action by a riparian proprietor along the banks of a navigable or floatable stream to recover damages for injuries incurred through the act of the defendants in obstructing the stream while booming logs, so as to cause the water to rise and flood his lands, it is unnecessary to allege in the complaint that the injury was caused by the negligence or want of care of defendants, since it is immaterial in such a case whether or not' there was negligence on the part of defendants.
    SAME — DEFENSES.
    In an action for damages for obstructing a river with logs, and for an injunction to restrain the further commission of such acts, it is not a defense to set up that defendants have expended large sums in improving the channel of the river, and have better adapted it for the drainage of the adjoining lands, since benefits cannot be set off in such a case against damages sustained.
    SAME-EVIDENCE.
    Where the rights of defendants extend only to rafting logs down a river and not to booming them, evidence of where it would be most convenient for them to boom them is immaterial in an action to enjoin such use.
    SAME-INJUNCTION.
    Where it appears that the injury to a riparian proprietor from the booming- of logs on a navigable river will be a continuing one, the court is warranted in controlling such improper use of the river by a perpetual injunction.
    Appeal from Superior Court, Skagit County. — Hon. Jesse P. Houser, Judge.
    Affirmed.
    
      E. C. Million, for appellants:
    The public right of floatage and the private right of the riparian proprietor must each be exercised with due consideration for the other, and any injury which the latter receives in consequence of a proper use of the stream for floatage he must submit to as incident to his situation upon navigable waters. Bauman v. Pere Marquette Boom Co., 33 N. W. 538; White River Log & Booming Co. v. Nelson, 45 Mich. 578 (8 N. W. 909); Field v. Apple River Log-Driving Co., 31 N. W. 17; Hopkins v. Butte & M. Commercial Co., 33 Pac. 817 (40 Am. St. Rep. 438); Middleton v. Flat River Booming Co., 27 Mich. 533.
    The court exceeded its authority in attempting to control perpetually the use of the river by injunction. An injunction will not be granted in aid of an action in trespass, unless it appear that the injuries will be irreparable and cannot be compensated in damages. Waldron v. Marsh, 5 Cal. 119; Thorn v. Sweeney, 12 Nev. 251; Hoye v. Sweetman, 12 Pac. 504; Bassett v. Salisbury Mfg. Co., 47 N. H. 437 (82 Am. Dec. 179).
    
      McBride & Joiner, for respondents:
    The case at bar does not present a single trespass, but numerous trespasses, and a condition that may occur at any time during the wintér season, and for as many years as logging is continued upon the Samish river. The damage is not merely nominal, but irreparable, as it endangers the value of respondents’ premises for the purpose of farming. The following cases sustain the action of the lower court in granting a perpetual injunction: Haines v. Hall, 20 Pac. 831 (3 L. R. A. 609); Meyer v. Phillips, 97 N. Y. 490 (49 Am. Rep. 538); Stone v. Roscommon Lumber Co., 26 N. W. 216; Sheldon v. Rockwell, 9 Wis. 167 (76 Am. Dec. 265); Ackerman v. Horicon Iron Mfg. Co. 16 Wis. 151; Wilmington Water Power Co. v. Evans, 46 N. E. 1083; Town of Hardinshurg. v. Cravens, 47 N. E. 153; Coalter v. Hunter, 15 Am. Dec. 726; Society v. Morris Canal & B. Co., 21 Am. Dec. 41.
   The opinion of the court was delivered by

Dunbar, C.J.

This was an action in the superior court of Skagit county, brought by respondents to recover damages from appellants on account of using the Sainish river for storing and holding logs, and asking a permanent injunction against the future use of the river for storing and holding logs. Respondents recovered judgment for $175 damages and obtained an injunction prohibiting the use of the Samish river for holding, handling, assorting, or booming logs. A demurrer was interposed to the complaint for the reason that it failed to allege that the injury was caused by negligence or want of care on the part of appellants. The demurrer was overruled, and the order of the court overruling the demurrer is made the first assignment of error by appellants.

The complaint alleged that appellants allowed logs to accumulate and remain in large quantities, thereby forming a jam and obstructing the river, thus causing the water to rise and flood their lands, wash away their dikes, and damage them. We think this was a sufficient allegation. We are not able to see that the cases cited by appellants are in point. They simply establish the doctrine that the public may use navigable or floatable streams for rafting or floating logs, and the law is that if, without negligence or want of proper care on the part of persons floating logs in such streams, damage is sustained, there can be no recovery. But we think that all the authorities agree that the right to float logs down a stream does not carry with it the right to boom logs in said stream, or to obstruct it in any way so that it will either interfere with the rights of other navigators or cause damage to the riparian proprietors. The appellants, then, having been engaged in a business which they had no legal right to engage in, viz., obstructing the stream by booming and rafting logs, are responsible to the riparian owners for such damages as accrue from such illegal acts, whether the appellants were guilty of negligence or not. Hence it is not necessary to allege negligence or want of care in the complaint. The cases cited by respondents on this proposition are exactly in point. In Weaver v. Mississippi & R. R. Boom Co., 28 Minn. 534 (11 N. W. 114), it was held that the action of a party in booming logs in a river where damages accrued impaired the usefulness of the land of the riparian owner, and constituted a taking of the property and not a mere consequential injury; that the defendant had no right to take plaintiff’s property without his consent, without first paying compensation therefor; and that, not having paid plaintiff compensation, the fact that defendant had constructed and maintained its booms with proper care and skill would be no defense to an action by the land owner for the injury to the property. In Hueston v. Mississippi & R. R. Boom Co., 76 Minn. 251 (79 M. W. 92), where certain works erected and maintained by the defendant in the Mississippi river caused a log jam which raised the water of the river so as to overflow and damage the plaintiff’s premises, it was held that the ground of defendant’s liability was, not that it was negligent in the construction or operation of its works, but that it had no right to thus injure or take the plaintiff’s property without first acquiring the right by purchase or condemnation. In Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435), the rule was announced that the right to raft logs down a stream did not involve the right of booming them upon private property for safe keeping and storage. The rights and responsibilities of drivers of logs on navigable rivers is discussed at great length and with great logical clearness by Judge Cheistiancy of the supreme court of Michigan in Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, where it was held that persons exercising the public right of navigating a stream by running logs down it, or collecting, dividing, and storing them, are bound to do it with due regard to the concurrent rights of riparian owners to the use of their lands; and they cannot, for the sake of rendering the business of thus navigating the stream more safe, convenient, and profitable to themselves, raise the water so as to flow the lands of such owners, and damage thus caused to the lands of the riparian proprietors cannot be treated as consequential merely, and damnum absque injuria. To the same effect is Rogers v. Coal River Boom & Driving Co., 41 W. Va. 593 (23 S. E. 919), and Wooden v. Mt. Pleasant Lumber & Mfg. Co., 106 Mich. 412 (64 N. W. 329).

The appellants offered an affirmative defense to the effect that they had expended a large amount of money in straightening the channel, removing snags, and otherwise improving the river, making it navigable and fit for floating logs; that by so doing they had greatly improved and increased the drainage of the adjoining lands; that they had thousands of dollars invested in timber lands and apparatus for logging the same; and that by using said river for floating logs the same would be more valuable for drainage. To tbis affirmative defense tbe respondents interposed a demurrer, wbicb was sustained, and the court’s action in so doing constitutes tbe second alleged error. No authorities are cited by appellants in support of tbis contention, nor do we think any can be found. Tbe fact that tbe appellants may have expended many thousand dollars in tbe clearing of tbis river would be of little consolation to tbe respondents, if tbe appellants were allowed to damage or destroy tbe lands of the respondents by choking tbe river with booms of logs. In tbis state, where tbe right of eminent domain is available, benefits cannot be urged and set off against damages sustained.

Tbe third alleged error is that upon tbe trial appellants filed an amended answer containing an affirmative defense in wbicb it was alleged that, if any damage was suffered by respondents, it was caused through no fault or negligence of appellants, but while they were using ordinary care, diligence, and skill in handling tbe logs. In response to a motion of tbe respondents, tbis defense was stricken, for tbe reason that tbe same was irrelevant and redundant. What has been said under tbe first assignment of error in relation to tbe sufficiency of tbe complaint applies to tbis assignment. Tbe motion was properly sustained.

Tbe fourth allegation of error is an objection to tbe fifth finding of fact, wbicb was to tbe effect that tbe respondents sustained damages to tbe amount of $175. We think there was sufficient testimony to sustain tbis finding.

Tbe fifth allegation is that tbe court erred in bolding appellants liable for any damages wbicb respondents sustained. Tbis assignment is covered by what has been said under tbe first and second assignments of error.

The sixth assignment is that the court erred in refusing to permit the appellants to show that the logs could not be handled, sorted, and boomed below the draw bridge. It is contended that, if this is true, the loggers should have the use of the river, and, if the riparian owner is thereby inconvenienced, it is his misfortune in owning property along such stream, and is a damage incident to such property. We think this testimony was properly excluded. If, as we have seen, the rights of the appellants extended only to rafting logs down the river, it would make no difference whether or not it was inconvenient for them to raft below the draw bridge, and the objection is aptly met by counsel for respondents in his brief, when he uses the argument of counsel for appellants in the following language:

“If that condition is true, and there is no other place in the Samish river where logs can be boomed, etc., without injury to the property of riparian owners, and by reason of such condition loggers are put to some inconvenience and expense in constructing a place for handling and booming their logs, then, to use the expression of counsel, it is their misfortune in choosing a location, as the inconvenience and expense are incidents to logging upon the Samish river.”

The seventh allegation of error is substantially the same as the third.

The eighth allegation is that the court exceeded its authority in attempting to control the use of the river perpetually by injunction: binder all the circumstances as shown by the testimony of this case, we think the damages were such that a perpetual injunction was necessary to protect the rights of the respondents.

The last assignment of error, and the one which the appellants urge most strenuously, is that finding Ho. 9, which is to the effect that, if the appellants are permitted to use the Samish river at any place betweeen certain points mentioned, such use of such portion of the river will interfere with the drainage of respondents’ land to their injury, from which finding the court concludes as a proposition of law that respondents are entitled to nerpetual injunctive relief, is not sustained by the testimony. It would he profitless to go into an analysis of the testimony. It is sufficient to say that we have - examined the record, and, in our judgment, the testimony amply sustains the finding made by the court.

No error appearing of record, the judgment will he affirmed.

Reavis, Fullerton, Anders and White, JJ., concur.  