LOG BOOMS ON NAVIGABLE RIVERS.

By J. B. BRIDGES, of the Aberdeen Bar.

Mr. President, Gentlemen:

The topic which has been given me for today is one that can hardly be made interesting by its manner of treatment, and if there is any interest in it, it must grow out of the many nice, difficult and complex questions of fact and of law which are inherent in it; and yet it seems to me that the question, effecting directly as it does the greatest industry of the western portion of the state, is one entitled to serious consideration.

It must at once be conceded that the logging and lumbering industries of the western portion of the state are, by all odds, the most important we have, and are likely to be and remain the most important we shall have for a good many years to come. In the cities of Aberdeen, Hoquiam and Cosmopolis, on Grays Harbor, which three cities adjoin one the other, the output of lumber is immense. The average daily cut of the mills in these three towns is in the neighborhood of two million two hundred thousand feet board measure; or upwards of thirteen million feet for each week of six days; or upwards of fifty million feet for each month of twenty-six days; or supposing the average quarter section of land will cut five million feet of timber, we are, in the cities just mentioned, stripping monthly about ten quarter sections or two and a half whole sections; and yearly we are stripping in the neighborhood of thirty sections of timber land; or in the neighborhood of ten years, at the present rate, we will cut the timber from about three hundred sections of land. And yet it is estimated that it will take from fifty to one hundred years from this time within which to cut, at the present rate, all of the timber which is tributary to Grays Harbor. These figures are astounding and almost unbelievable, and yet what is being done on Grays Harbor with relation to the cutting of timber is being done to a greater or less extent all over the western portions of the states of Washington and Oregon.

Throughout the state there are dozens, yes, hundreds I may say, of comparatively small streams which are suitable chiefly for logging purposes. Many of these streams have their source far inland, and wind their tortuous way through immense bodies of untouched timber lands and finally empty their waters into tide water. These streams are

from one hundred to three hundred feet in width in tide water. They are navigable to small boats only to a small and almost insignificant degree. There are a few farms on the stream and probably a small amount of fishing, and these farmers desire at times to navigate the stream with row boats and scows and other small boats in the ordinary conduct of their small farms. It may safely be said that ninety per cent of the commercial value of these small streams is and for many years must continue to be, that of the logging industry, and that ten per cent is that of navigation by boats.

In order to make these streams of any practical value to the logging and timber industry, there must be, in the upper portions of the streams, dams for the purpose of creating artificial freshets for the purpose of driving logs down to tide water, and there must be located in tide water a boom structure for the purpose of catching these logs and holding them and sorting and rafting them ready for the saw mill. The very nature of the streams themselves, and of the climate of the country, requires that, for a large portion of each year, the stream be practically given up exclusively to the logging industry. These streanis are, by our statutes, made public highways, and innumerable questions arise between the boom or the driving company on the one side and the riparian owner and the navigator on the other side. If the boom company suffer the logs in its possession to strike the banks of the stream and knock off a little earth, the riparian owner immediately is heavily damaged, and seeks either to enjoin the operation of the boom or demands damages. If because of the immense and unsual quantity of logs coming down the stream upon winter freshets the boom should be overfilled and the river closed to navigation for a few weeks, the farmer desiring to navigate the stream with his boat immediately demands an open way, and yet you cannot give it to him.

In building your boom you use one bank of the river as one side of your boom and the riparian owner immediately seeks to enjoin you from so doing, and yet you use nothing but the bank and cannot operate your boom without so doing. The riparian owner immediately complains that he bought his land upon a navigable stream which is a public highway, and that he is entitled at all times to get to and from that public highway, and yet you cannot maintain your boom and give him this privilege. When the river is full of logs, stopped because of the boom, the person who desires to go to the mouth of the stream in his row boat demands of you that you clear the stream for him, and contends that the stream is a public highway, and that under the law of the land he is entitled at all times and at all seasons to travel that highway unimpeded and unobstructed, and yet you have not been re

sponsible for the excessive amount of logs that have come into your boom and blocked the stream and it is impossible for you to operate your boom and grant his request. If you are a driving company, and the river cannot be successfully used as a logging stream at certain seasons of the year, you build dams in the river and thus, hy holding the water, create artificial freshets and are thus able to drive down the stream hundreds of thousands of dollars worth of saw logs which otherwise could not have been gotten out; but the owners of land bordering upon the stream for ten, twenty or thirty miles below your dams seek to enjoin your operation or to hold you liable in damages because, perchance, this arificial freshet threatens to wash away small portions of the banks of his lands. If you are a driving company, and without any fault of yours, logs hang up at some point in the stream and thus cause the adjoining land to be overflowed or the banks to be more than usually washed away you immediately have a suit against you for damages, and there are a hundred like questions and legal difficulties which arise between these parties. The one party contends always that you have no right under any circumstances to wash away the banks of his lands however small it may be; that you have no right under any circumstances, whether unavoidable or not, by means of your boom or your driving company at any time to block any portion of the stream to the ordinary boat navigation; that the stream is by the law of the state a public highway, and that all persons shall have at all times an absolute right to the use of the stream.

Many questions, chiefly other than these I have just enumerated, have already been decided by our supreme court. Many controversies have arisen and many controversies have found their way into that court and yet has only the court merely touched the whole problem. The court has already decided what is a floatable stream and what is not a floatable stream; in what kind of a stream the riparian owner owns the banks and bed of the stream and in what character of a stream the state is the owner of the banks and bed of the stream; it has decided that a private individual or a private corporation has no authority or right to hold or boom logs in one of these streams; that no private individual or private corporation has a right to create artificial freshets for the purpose of driving their logs to market; that no person has the right to go upon the banks of the stream for the purpose of assisting in the driving of logs down the stream. And many other questions has this court decided and yet, as I said before, the court has hardly touched the many legal questions that arise in these controversies.

It appears to me that lawyers and some of the courts cling too closely to the old common law doctrine affecting navigable streams.

It ap

pears to me that we are too afraid of breaking away from the ancient tenets concerning navigable streams and too slow to make and decide laws in accordance with the necessity of the circumstances. It was announced by the very early English writers that "riparian proprietors were entitled to have the stream which washed their lands flow as it is want by nature without material diminution or alteration." Such law was announced and laid down as affecting the streams of England where there was but little or no mining; little or no timber and little or no irrigation; where the whole burden of the stream was to carry navigation in its broader sense. Such law came down to this country as part of the common law of England, and it has been difficult for us to break away from the old, tried and established principles governing such streams. But in an early day bold men came to the west to mine the rich veins of ore that were to be found there. The country was new. Circumstances and conditions to a large extent made the law. They found it necessary to take much or all the water from the streams to be used in their mining operations, and so out of such necessity came the law on all the Pacific coast that miners may take from the stream water for mining purposes.

In the old New England states, the old English doctrine could very well prevail, but men seeking homes father west came upon the arid lands which were richly fertile if the water could be brought upon them. Necessity justified them in taking large quantities of water from the streams for the purpose of irrigation, and this necessity again broke the old and staid common law doctrine, and we have irrigation laws all through the west. Very slowly have the lawyers and courts been willing to break away from the old ideas with relation to the navigable streams.

In Western Washington we have no need for irrigation and we have little need to use the waters for mining, but we have a greater need in using the streams for logging purposes. In no place in the world is there such a crying necessity to break away from the old and staid doctrines with relation to streams, as there exists in Western Washington. Nowhere are great industries so dependent upon the use of the streams of water as they are in the state of Washington; nowhere as in the state of Washington is there so much need that the hard and rigid laws with relation to these streams should be mellowed and made subservient to the interests of the loggers and the lumbermen.

As a rule necessity makes law. As a rule law should be of such character as will be of the greatest benefit to the greatest number of people. In all the states in the Union there is not one so dependent upon its waterways as is the state of Washington, and yet, in my judgment,

there is not a timbered state in the Union whose laws are less favorable to the logging and lumbering industry than they are here. I repeat that the law and its enforcement should be governed by the necessities of the situation.

Under the laws as we have them in this state today, the logging and lumbering industry-the greatest we have, is in so far as the streams are concerned, hampered, checked and restrained in a manner that should not be. Nature has given us immense forests; nature has made to run through these forests innumerable streams of water to carry these forests to market, and yet it appears to me that by our laws and their enforcement the very wealth and advantages which that nature has given us are being unjustly and improperly cramped.

The men who buy their lands upon navigable streams such as these I have mentioned do so knowing the conditions. They know that in the nature of things the stream must be burdened with the rich harvests which nature has grown on the banks of the stream. They have certain rights and easements in the water by virtue of their contiguity thereto, but such rights and easements are of necessity burdened with greater and more important rights and easements. The great industry supporting the major population of a great state should not be hampered because perchance and incidently the natural pursuit of that industry will entail upon a few people a hardship. It is infinitely better that the few be made to suffer or be hampered in their affairs than the great many.

I believe that upon those streams in the state which are chiefly valuable for the floatagle of saw logs, boom companies and driving companies should be given greater privileges and should be less handicapped than they are at present. If the necessary result of the operation of a boom is to shift the currents of a stream; is to wash away small portions of the lands or the banks, the boom should not be held as doing an unlawful thing and be mulcted in damages therefor. If the necessary result of the prudent and careful operation of the boom causes, for a time, ordinary boat navigation to be blocked, the boom company ought not to be held liable therefor. If the necessary result of using artificial freshets is to wash away a small amount of the land I believe there ought to be no recourse and no injunction and no damages therefor. These companies should be required at all times to exercise a high degree of care and diligence, but they ought not to be neld responsible for consequences which are the necessary results of the performance of their lawful and necessary acts.

I believe it is the settled law that the state in which a navigable or floatable stream exists, has the absolute control over the navigation of