is in; that a boat cannot enter the river from the harbor except on the tide, and that it is used for navigation only for particular purposes such as "taking in supplies or scows." This court has held, however, that a stream is navigable in a legal sense if it is in fact navigable. Dawson v. McMillan, 34 Wash. 269, 75 Pac. 807. The respondents are engaged in a lawful and important public service. It is only because they are public carriers that they are permitted to exercise the high prerogative of eminent domain. It is apparent that they must obstruct the river above the boom at times, or cease to do business. The legislature, in granting the right to construct a boom and splash dams and drive logs and timber by artificial freshets, by necessary implication gave the right to obstruct navigation at times. It is, as the court found, unavoidable in accomplishing the purpose for which the respondents were created. Necessarily, therefore, they do not fall within the general statutes on nuisances as defined in Rem. & Bal. Code, § 943, and Rem. & Bal. Code, §§ 8308 and 8316. Burrows v. Grays Harbor Boom Co., 44 Wash. 630, 87 Pac. 937, and kindred cases, were injunction suits where property was being damaged without the right to do so having been acquired by purchase or condemnation, and are, therefore, not in point. The use of a stream such as the Humptulips river, a stream two to three hundred feet in width, for the purpose of floating and holding logs, is necessarily at times an exclusive use, and either such right must be conceded or the business of floating logs in such streams must cease. The legislature, we think, contemplated the precise contingency.

It is further insisted that the present use is violative of the Federal statute (26 Stats. at Large, 454, § 10), in that it creates an obstruction, not affirmatively authorized by law, to "the navigable capacity" of the waters of which the United States has jurisdiction. We do not think the river is a navigable one within the purview of the Federal statute, as that term has been defined by the supreme court of the

Concurring Opinion Per CHADWICK, J. [58 Wash.

United States.

United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690. In that case the court quotes approvingly the words of Chief Justice Shaw (21 Pick. 344), as follows:

"It is not, however, every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture."

As we have seen, the present use of the stream is authorized by the laws of this state, and if the river is not navigable in the Federal sense, the relief sought is not violative of that act.

The decree is affirmed.

RUDKIN, C. J., FULLERTON, and MORRIS, JJ., concur.

CHADWICK, J. (concurring)-Appellant rests his contention upon the proposition "that the right to do an unlawful thing, the creating of a public nuisance, cannot be acquired under the power of eminent domain." He assumes that any obstruction of the right of free navigation in the Humptulips river is a purpresture or blocking of a highway which, under our statute and under the common law, has been declared to be a nuisance. If this were literally true, appellant's argument would be unanswerable; but the question he raises is not new and, where it has been considered by other courts, has been resolved as we have resolved it. The particular question whether the obstruction of a floatable stream is a nuisance, quite naturally came up in those states where the logging industry first assumed commercial proportions. In an early case in Maine, Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573, it was held, that every person has an equal right to the reasonable use of navigable waters as public highways; that what constitutes a reasonable use depends upon the circumstances of each particular case, and that the rights of the parties cannot be defined or regulated with entire precision; that the courts must regard the subject

June 1910]

Concurring Opinion Per CHADWICK, J.

matter of the use, the occasion and manner of its application, its object, extent, necessity, duration, established usage of the country, and the size of the stream and its volume. Waters which are not navigable for ordinary commercial purposes, or in the "Federal sense," as Judge Gose puts it, are subject to state regulation and control; and the power of the state in this behalf will be measured by the necessities of its commerce as well as the rights of the riparian proprietor. In Hamilton v. Vicksburg etc. R. Co., 119 U. S. 280, a similar question to that before us was presented. The navigation of a stream had been wholly prevented for a period of six weeks, and an action was brought to recover damages by reason of this obstruction. The defendant company justified under state legislation, and on the ground that its action was necessary and performed with reasonable care. The plaintiff claimed that the state legislation was void because it violated the compact of the state with the Federal government guaranteeing the free navigation of the river. The state court had held that no recovery could be had under such circumstances, and this was affirmed by the supreme court of the United States, that court holding that, in all such cases and until Congress intervenes and exercises its authority, the power of the state is plenary, the only limitation being that the acts of those obstructing navigation at times should not be unreasonable or interfere unnecessarily with the navigation of the streams. To the like effect is Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, where the authorities are collected:

In Pound v. Turck, 95 U. S. 459, the judgment of the lower court was reversed because the jury had been instructed, in effect, "that if the structures of the defendant were a material obstruction to the general navigation of the river, the statute of the state afforded them no defense though they were built in strict conformity to its provisions." If the Humptulips river is not navigable in the "Federal sense," these authorities are controlling.

Concurring Opinion Per CHADWICK, J.

[58 Wash.

In "City of Erie" v. Canfield, 27 Mich. 479, Judge Cooley said:

"The fact that the boom embraced a portion of the navigable waters of the Manistee river, capable of being navigated by vessels like this, does not necessarily constitute it a nuisance which may be abated by force. It appears by a map which is in evidence by stipulation, that the boom is in the river between Manistee City (then a considerable village) and the lake, and it would seem from the judge's opinion, which is returned, that considerable evidence was taken to show its necessity, and whether it did or did not constitute an unnecessary impediment to navigation. The circuit judge examined this question elaborately, and reached the conclusion that it did not. The evidence on which he acted is not returned, and the correctness of his conclusion on its weight and credibility has not been argued. It is clear that on a river like the Manistee, which is navigable by steamers for a long distance, but down which logs by the million are floated and gathered in booms every season-where, in fact the principal industry consists in cutting, floating, and manufacturing into lumber the forests in its vicinity, and where the river is more valuable for this floatage than for any other navigation; the necessity and convenience of this floatage must be considered in any rules laid down for the public use of the stream, and the need of booming facilities to render the floatage of value. Indeed, to take away the privilege of booming would be to strike a fatal blow at the principal commerce on the stream; for the vessels which ply between Manistee and other ports are loaded principally with the lumber which the mills along the shores of Manistee lake and river are enabled, by means of the privilege of floating and booming logs upon these waters, to manufacture and place upon the market. It is just and reasonable, therefore and conducive to the best interests of commerce, that the right of navigating the river should be exercised with due. regard to the necessity for booming facilities, and the former is not so far paramount as to render the latter a nuisance whenever and wherever it encroaches upon waters navigable by the large vessels which enter this stream. The question whether a nuisance or not, is complicated; it must depend in any case upon the particular facts, and the necessities and

June 1910]

Concurring Opinion Per CHADWICK, J.

convenience of each interest must be considered and compared before the proper conclusion can be reached."

In Attorney General ex rel. Muskegon Booming Co. v. Evart Booming Co., 34 Mich. 462, Judge Cooley said:

"The questions then are, first, whether the appropriation is of something which is common to the public; and if so, then, second, whether it is made in a manner or under circumstances which justify or excuse it. In considering these questions it is important that we bear in mind the sort of navigable water we are dealing with. Navigable waters at the common law are those where the tide ebbs and flows; under these the public have a proprietorship in the soil itself; and in various ways the sovereign authority may make use of this ownership for the benefit and protection of navigable rights as well as for other purposes. The Muskegon river, it need hardly be said, it not of this character, and the public have no rights whatever in the soil under it. Neither is it a navigable stream, at least at the point where the alleged purpresture exists, in the more popular sense of that term, for it is only a small stream whose value to the public consists in the use which can be made of it for the purpose of floating logs and lumber. The right of floatage is unquestionably a right which the state should guard and protect; but it is a serious mistake to assume that the private appropriation of a part of the bed of the river would necessarily be either a purpresture or a nuisance. The property taken in such a case is not public but private property, and the owner of the bank, who also presumably owns to the center of the stream, may maintain trespass or ejectment against the taker. If the owner makes no complaint, the public can have neither right nor occasion for any, provided the navigable rights are not abridged. If they are, it is not very manifest how this can be a purpresture. The difference between the highway by land, with its definite limits to which the public right extends, whether the whole is used or not, and the highway for floatage in our small streams, where the public rights have no definite limitations of space except as practicability for use and the occasion for use may give variable limits, as the seasons and the needs of business and traffic may change, is so plain that the difference between an appropriation in the two cases needs only to be mentioned. It requires neither argument nor illustration. The one is a