Powell v. Springston Lumber Co.

AILSHIE, J.

(After making statement of the case.)— Since the judge specified no grounds on which he based his order dissolving the injunction, it must be assumed upon this appeal that it was made on either one or both of the grounds named in the motion. The first ground, that no motion was made to keep the order in force as required by rule 19 of the rules of practice of the district court, is untenable here, for the reason that we cannot take judicial notice of what rules have been adopted by the district court.' (Rev. Stats., sec. 5950; Dours v. Cazentree, McGloin (La.), 257; 11 Cyc. 739-744.) The rule relied on has not been brought to this court in the record, and we are therefore not informed as to its provisions. We doubt, however, if any valid rule could be enforced that would justify dissolving an injunction under this paragraph of the motion. The next ground assigned in the motion is equally untenable. It is contended by respondent in justification of the order of the court that under section 4289, Revised Statutes, where an injunction is granted on the complaint alone, it must be granted at the time the summons issues, and that it can never be granted thereafter upon the complaint alone. We think that contention is substantially correct, and in conformity with the provision of the statute. (Thayer v. Bellamy, 9 Idaho, 1 , 71 Pac. 544 .) The facts and circumstances of this case do not bring it within the prohibition of the statute. Here three several orders of injunction and as many writs were issued, but they were all in the same form and to the same effect, and the second and third amounted to nothing more than an extension of the time *729 in which the defendant was required to show cause. The discretion of the court was brought to bear and was exercised at the time the summons was issued, and the judge issued the first injunction ordered. At that time he exercised the discretion vested in him to grant a temporary injunction. This order was timely issued, and only needed to be brought to the knowledge and notice of the defendant in order to be binding and obligatory upon it. The officer was unable to serve the writ issued under this order prior to the time named therein for the defendant to show cause. Upon the return of the writ showing that it had not been served on account of the inability of the officer to find the defendant’s statutory agent, the court in substance merely extended the time previously designated for the defendant to show cause, and the same thing was done upon the return of the second order and writ unserved. It is true a new order was issued and a new writ under the seal of the court was delivered to the officer, but the only act performed by the judge in these instances was that of extending the time and naming a new date on which the defendant should show cause. This was not a violation of the provisions of section 4289, Revised Statutes, nor was it a violation of any other provision of law that has been brought to our attention. If the contention of the respondent in this case were correct, it might seldom be possible for a plaintiff to get a valid injunction issued upon his complaint, for although the order and injunction might be issued and a time fixed for the defendant to appear and show cause, nevertheless, under this condition, if the 'defendant could avoid service until after the expiration of the time designated in the order, the plaintiff would be unable to secure another order or extension of time without filing affidavits in support of his complaint. No good reason exists for such a practice and the law does not require it.

The appellant has devoted a large part of his brief to a discussion of the sufficiency of the equities pleaded to sustain the action of the court in granting an injunction thereon. The trial judge held that the complaint when filed did disclose such equities as would authorize the issuance of an in *730 junction. The sufficiency of the complaint or the exigency disclosed by the facts pleaded was not attacked by the motion to dissolve the injunction, nor was the order based on any such assumption. Since, however, counsel for respondent have argued on this appeal that “the complaint does not state a prima facie right for injunction, ’ ’ we will consider its sufficiency to the extent of determining whether or not it will support an injunction order. In this connection it is only necessary to determine the extent of plaintiff’s rights in the waters of the Coeur d’Alene river, which is alleged to be a navigable stream, and the measure of duty the defendant, in the enjoyment of its rights, owes the plaintiff. Navigable streams are public highways, over which every citizen has a natural right to carry commerce, whether it be by boats or the simple floating of logs. The appellant has an undoubted right to float his logs and timber down the Coeur d’Alene river, but in doing so he must have due consideration and reasonable care for the equal right of defendant. On the other hand, defendant has an unquestionable right to embark in the same or any other lawful transportation business on the waters of that stream. (1 Farnham on Waters and Water Rights, 154-161.) The construction and use of booms is a necessary adjunct to the floating of logs; without' them it would frequently be impossible to deliver the logs where wanted for use. The right to float logs down a stream carries with it the necessarily resultant right of employing some reasonable means for intercepting them at their destination. The right of a riparian owner to use a stream implies the necessity as well as right to pass from the shore to the navigable waters of the stream, and this in turn must require some effective means or medium by which to reach such point for loading or unloading the commercial and floatable commodity. This is the rule of law on which we decided the case of Small v. Harrington, 10 Idaho, 499 , 79 Pac. 461 , cited by respondent, in which Mr. Justice Stoekslager, speaking for the court, said: “No one has the right to arbitrarily obstruct a stream to the detriment or injury of his neighbor. Bach one is entitled to the free and reasonable use of the navigable streams of this state, and may *731 place such reasonable obstructions on the stream, so long as they serve a useful and beneficial purpose, and leave a reasonable use for others interested.....If an obstruction impairs or renders more difficult the navigation, without destroying it, an individual has no rightful cause for complaint, because he has no right to insist on the best possible accommodation.” In the case at bar it is charged that defendant has built its boom and obstructions “across” the stream so as to “prevent” others driving logs past such boom and obstruction. This is unlawful, and in violation of the natural rights of plaintiff and every other citizen who desires to use the stream for purposes of navigation (Stevens Point Boom Co. v. Reilly, 46 Wis. 237 , 49 N. W. 978 ), and is specifically forbidden by section 835, Revised Statutes, in the following language: “No dam or boom must be hereafter constructed or permitted on any creek or river, unless said dam or boom has connected therewith a sluiceway, lock or fixture sufficient and so arranged as to permit timber to pass around, through or over said dam or boom without unreasonable delay or hindrance. ’ ’

It is argued by counsel for respondent that since plaintiff has failed to specifically allege that the defendant has not connected with his boom any sluiceway, lock or fixture to permit the floating of logs around or through the boom without unreasonable delay, that the complaint for that reason is insufficient to support'an injunction. The condition of this case does not make it necessary for us to pass upon the burden of pleading in this instance, but it would seem, however, that the necessity for pleading a negative does not fall upon the plaintiff in this case, but rather upon the party who relied upon his compliance with the exception. Here the plaintiff has charged the defendant with having constructed and maintained such boom and obstruction “across” the stream so as to effectually “prevent” floating of logs past such obstruction, and that this condition had existed for a period of nearly four months prior to filing the complaint. This, at least, in the language of respondent’s counsel, “made a prima facie case tor the plaintiff,” and if the defendant has in fact pro *732 vided sluiceways or locks in conformity with the statute, it may show that fact at the proper time. Respondent further contends that under the provisions of section 836 of the Revised Statutes, the plaintiff could not maintain his action until after he had given thirty days’ notice as provided by that section. Section 836 is as follows: “Any boom or weir in or over any creek or river so constructed as to prevent the .passage of logs or lumber is a public nuisance, which may be abated unless a suitable sluiceway, lock or passage be made thereon, within thirty days after written notice given by any person interested, and any person owning, holding or occupying such boom or weir is liable to pay five dollars for every day the same remains in or over said creek or river, after thirty days’ notice to remove the same, and be liable for any damages sustained by individuals by reason of said boom or weir.” Respondent misapprehends the meaning and purpose of this latter section. The' legislature passed the statute containing the present sections 835 and 836 on February 5, 1885. By provisions of section 835 it was intended to prevent any dam or boom being constructed or erected after the passage of the act, without being first provided with sluiceways, locks or fixtures as provided by the act. But prior to the passage of that act there had been constructed a number of dams and booms in various streams of the territory, without being connected either with sluiceways or locks, and it was the purpose of section 836 to allow the owners of all such booms or dams or weirs as had been previously constructed a period of thirty days after receiving notice from any person interested in which to make the necessary alterations and construct a sluice-way, lock or fixture in conformity with the statute. This construction is made perfectly clear by reverting to the act of February 5, 1885 (Sess. Laws 1885, p. 178), as by doing so it will be seen that in copying section 7 of the act which corresponds with section 836 of the Revised Statutes, three words have been left out, and the section as originally enacted commences as follows: “Any boom or weir that is now in or over any river,” etc. No contention is made in this case that the obstruction in the Coeur d’Alene river is one that was placed *733 there prior to the passage of the act of February 5, 1885. Of course if it should develop upon the further hearing of this case that that is the fact, then the defendant would undoubtedly be entitled to the thirty days’ notice before it would be liable in an action under the statute.

The complaint charges the defendant with violating a plain and undeniable equity vested in plaintiff, and one which must properly appeal to the sound discretion of a court of equity.. The motion made in the lower court to dissolve the injunction should have been denied. The order dissolving the temporary injunction is reversed and the cause remanded for further action in conformity with the views herein expressed. Costs awarded to appellant.

Stoekslager, C. J., and Sullivan, J., concur.