Shephard v. Coeur D'Alene Lumber Co. , 16 Idaho 293 ( 1909 )

AILSHIE, J.

This action was commenced by the respondent, Huida A. Shephard, to procure an injunction restraining the defendant from trespassing on plaintiff’s land and dumping sawdust and debris thereon and from booming and storing logs along and upon the shore line in front of her land abutting on Lake Coeur d’Alene. The district court entered a decree in favor of the plaintiff, and defendant, the Coeur d’Alene Lumber Company, a Washington corporation, has appealed.

The complaint is in the usual form, and contains all the material allegations essential in such cases, and the demurrer was therefore properly overruled, as was also the objection to the introduction of any evidence in support of the allegations of the complaint. The defendant denied the plaintiff’s ownership of the property and alleged ownership in itself. The evidence produced on the part of both plaintiff and defendant in an endeavor to establish the chain of title is extremely complicated and confusing. Both parties claim title to the property, and each endeavors to trace title from a patent from the United States government to Tony A. Tubbs. As we view this question of title, however, it is wholly unnecessary to recite it here or enter into any discussion or consideration of it in detail. In our view of the matter the whole question of respondent’s title and right of possession as against this appellant is settled and determined by the case of Shephard v. Coeur d’Alene Lumber Co., 11 Ida. 529, 83 Pac. 601. This appellant is the grantee and successor in interest through mesne conveyances of the Coeur d’Alene Lumber Company, Ltd., an Idaho corporation. The case of Shephard v. Coeur d’Alene Lumber Company, Ltd., previously decided by this court, was an action by the respondent in this ease against a domestic corporation .for the purpose of quieting her title to the identical property involved in this case. The conveyance from that company, an Idaho corporation, was made subsequent to the commencement of the action of Shephard v. Coeur d’Alene Lumber Company, 11 Ida. 529 83 Pac. 601. All persons who took any title, interest or claim by conveyances executed subsequent to the commencement of that action, are parties in privity with the defendant in that action, which was the Idaho corporation. (See Schuler v. Ford, 10 Ida. 739, 109 Am. St. 233, 80 Pac. 219, and cases there cited.) The appellant in this case, the Washington corporation, is therefore a party in privity with the Idaho corporation, which was defendant in the original case of Shephard v. Coeur d’Alene Lumber Company, heretofore decided by this court. The appellant herein is therefore bound by that judgment, and that determines the question of ownership of the property as between the parties to this action. We find no error in the rulings of the court on the admission of evidence. The evidence clearly supports the findings of the court.

It appears that the lumber company has been using the waterfront adjacent to respondent’s land for storage and boom purposes in connection with its sawmill and lumbering business. It keeps large quantities of lumber and logs bedded along the waterfront, and in such manner as would exclude ingress and egress to and from respondent’s land by way of the lake. This lake is a public highway (Powell v. Springston Lumber Co., 12 Ida. 723, 88 Pac. 97), and the respondent, in common with every other member of the public, has a right to use this highway for the purposes of travel and commerce. The appellant has an equal and like right, but when it ceases to use it for the purposes of travel, navigation and commerce, and converts it into a storehouse or warehouse for its articles of trade and commerce, it is exceeding its right as a member of the public and is converting that right into a private use. This is unlawful and a violation of the upland owners’ property rights. This court has heretofore passed on this phase of the question, and in Powell v. Springston Lumber Co., supra, the court said:

“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 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 a rule of law, on which we decided the ease of Small v. Harrington, 10 Ida. 499, 79 Pac. 461.”

We also held in the case of Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, that:

“The public have an easement in, and the right to use, the navigable streams of this state, but in so doing, must have due consideration and reasonable care for the rights of the riparian owner, whose right to use a stream implies the necessity as well as the right to pass to and from such stream.”

The appellant cannot lawfully appropriate respondent’s property to its own use in this manner. If it is in need of this waterfront for storage and boom purposes, it must acquire the right to the use in a lawful manner. To allow it to appropriate and use the waterfront along respondent’s property in such a manner as to prevent her ingress and egress, might deprive respondent of the principal use and benefit of her property and take from the property its chief value. Whether this right of ingress and egress is of any particular value to respondent or not can make no difference to the appellant; it is a property right of respondent’s that must be respected, and she had a perfect right to resort to the court for the remedy she sought in this case. The injunction was properly issued, and the judgment of the trial court should be affirmed, and it is so ordered. Costs awarded in favor of respondent.

Sullivan, C. J., and Stewart, J., concur.