Mitchell v. Lea Lumber Co. , 43 Wash. 195 ( 1906 )

Dunbar, J.

(dissenting) — I concur in the result announced by the majority opinion, but dissent from the doctrine announced that th.Q landowner is not entitled to damages when the operations have been conducted in a reasonably careful manner and without negligence on the part of the driver of the logs. While I concede that the opinion is justified by authority, I do not feel bound to follow authority which to my mind is wrong in principle and which works injustice, especially where no question of vested rights is involved, and there never can be any vested right in wrongdoing. Judge Cooley, in the quotation set forth in the majority opinion, says: “But if the company only makes, use of the right of floatage in a proper and reasonable way and without negligence, it is not responsible even though some injury may be suffered by the riparian owner.” What the learned judge means by the use of the limiting phrase “some injury” is not apparent. Possibly the total destruction of a riparian owner’s farm and home, without fault on his part, and wrought in the purely selfish interest and enterprise of another, was so abhorrent to the learned author’s natural sense of justice that he shrank from its contemplation and sought to minimize the injury which could be inflicted by limiting the announcement to “some injury,” which implies “not a great deal.” But once the principle of non-responsibility is established, the amount of injury cannot logically be taken into consideration. That becomes simply a question of degreet It is also doubtless true, as is further stated by Judge Oooley, that the rights of the public to- run logs iu the stream are not subordinate to those of the owner of the bank, but are concurrent. But under the rule laid down, the rights of the owner of the bank may become subordinate to* the rights of those using the river, for serious damage to and absolute • destruction of the landowner’s property might be the final result of driving logs down a river, by a constant and continued erosion of the banks and through other causes which are conceivable, even though the work were prosecuted without negligence on the part of the driver.

The trouble is that the distinguished author, in laying down the rule of concurrent rights, neglected to apply another basic principle of law, which is as.old as the law itself and founded on manifest justice, viz., that one person has no right to' so use his property as to damage his neighbor; and another rule, equally just, that where one of two innocent persons must suffer, the party who for his own benefit puts in operation the destructive agency which is the cause of the damage must suffer the consequences of such acts> rather than he who¹ is innocent of both motive and action and who, in no> event, could benefit by the enterprise. In the second place, as a practical question, it would be very difficult, and in most cases absolutely impossible', for the owner of the land to prove that the operation of the business was not in the ordinary manner. He is not familiar with the modus opierandi of driving logs, knows nothing of the orders that are given to the men, or of the precautions that are taken or neglected. Surely the burden ought not to' be placed upon the landowner to watch his banks day and night when they are confessedly being injured for the benefit of another, to obtain the proof necessary to show that the driving was not made in a reasonable and careful manner. It is certainly cold comfort to a person who sees his farm gradually vanishing to be informed by the courts to whom he applies for redress that, notwithstanding the conceded fact that a corporation for its own exclusive benefit is destroying Ms farm, be b'as no remedy, if tb'e destruction is wrought by conducting tbe business in band in a reasonably careful manner. It is to be regretted, in my judgment, that such a principle is to be engrafted upon the adjudicated laws of this state.