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would seem to be no sound reason why the rule should be otherwise: Bartel v. Lope, 6 Or. 321; Moynahan v. Moore, 9 Mich. 9, 77 Am. Dec. 468; Flanders v. Chamberlain, 24 Mich. 306; Loughborough v. McNevin, 74 Cal. 250, 5 Am. St. Rep. 435, 14 Pac. 369, 15 Pac. 773. Nor is it necessary that the tender should be kept good or the money brought into court: Moore v. Norman, 43 Minn. 428, 19 Am. St. Rep. 247, 45 N. W. 857, 9 L. R. A. 55; Flanders v. Chamberlain, 24 Mich. 305; Mitchell v. Roberts, 5 McCrary, 425, 17 Fed. 776. In Weeks v. Baker, 152 Mass. 20, 24 N. E. 905, the court said: “We have been referred to no precedent for holding, in accordance with the defendant's contention, that a plaintiff, before bringing his suit, should carry into court the money tendered or that, having brought a suit which he had a right to bring, his right to maintain it will be forfeited unless he makes profert of money at the time of entering his writ. The rights of the parties to an action are ordinarily to be determined as of the time of bringing the suit. This is always so unless something that has afterward occurred which may properly be pleaded is shown in defence.'
564 In order that a tender may have the effect of discharging a mortgage lien, the proof must be clear that the tender was fairly made and deliberately and intentionally refused by the owner of the mortgage or some person duly authorized to act for him. In this case the fact and sufficiency of the tender are conceded in so far as the amount is concerned, but it is contended that the tender was not made by the mortgagor, and that the rights of the parties who made the tender were not disclosed or made known to the officer of the mortgagee. But the jury were fully and fairly instructed on this point, and we are not disposed to interfere with their verdict.
The judgment of the court below is therefore affirmed.
MOUNT, J., Dissenting. I think there was no proper tender made prior to the sale, and therefore dissent.
Fullerton, J., concurs with Mount J.
The Lien of a Chattel Mortgage is devested by a tender of the amount due: Knox v. Williams, 24 Neb. 630, 8 Am. St. Rep. 220; and it is perhaps not necessary that the tender, to be availing, should thereafter be kept good: Moore v. Norman, 43 Minn. 428, 19 Am. St. Rep. 247; Andrews v. Hoeslich, 47 Wash. 220, ante, p. 896.
KALAMA ELECTRIC LIGHT AND POWER COMPANY
v. KALAMA DRIVING COMPANY.
[48 Wash. 612, 94 Pac. 469.] RIPARIAN RIGHTS—Enjoining Log-driving Company.-A riparian proprietor may enjoin log-driving companies from retarding the flow of water in order to create artificial freshets for floating logs, where such interruption in the natural flow of the stream deprives him of water with which to operate his electric plant. (p. 952.)
EMINENT DOMAIN—Floatage of Logs as Public Use.-The right of log-driving companies to erect splash dams in a stream to create artificial freshets, thereby injuring the property and shore rights of riparian owners, may be acquired by condemnation proceedings under the power of eminent domain. (p. 953.)
Coovert & Stapleton, for the appellant.
612 CROW, J. This action was commenced by the Kalama Light and Power Company, a corporation, against the Kalama Driving Company, a corporation, to enjoin the defendant from interfering with the natural flow of the waters of the Kalama river. An agreed statement of facts was filed, upon 613 which the trial court made findings and entered a decree enjoining and restraining the defendant from interfering with the usual and natural flow of water in the Kalama river through, upon and by the plaintiff's land, and from using artificial dams for storing water and creating artificial freshets. The defendant has appealed.
The only question presented is whether this decree is supported by the findings. The findings of fact material to this question, in substance, show that the respondent, Kalama Light and Power Company, is a corporation organized under the laws of this state for the purpose of manufacturing and dealing in electric light and power; that it owns real estate on which its electric power plant, headgates, flumes and other structures are located; that the Kalama river, which passes over and through its lands, and from which it takes water for power purposes, is a swift, mountainous stream about sixty miles in length of sufficient width, depth and capacity to be floatable for logs and other timber products during natural annual freshets of the fall, winter and spring; that respondent's intake and headgates are located at low-water mark; that the river at all seasons, by its natural flow, furnishes water in sufficient quantities for the operation of the light
and power plant; that after diverting the water through the intake and flumes, the respondent returns it to the bed of the river, on its own premises; that respondent's plant is extensive and valuable, furnishing light and power to inhabitants of Kalama and Woodland; that the Kalama Driving Company is organized for the purpose of clearing and improving navigable streams, especially the Kalama river, and driving, sorting and delivering timber products; that it has complied with all the requirements of the laws of this state under which it is incorporated; that after respondent had installed its light and power plant and had appropriated water for power, the appellant entered upon the river and commenced to improve the same by removing boulders, timbers and other obstructions, 614 by building wing dams, splash dams and other structures, by creating artificial freshets upon which to drive logs, during seasons when they could not be driven for the want of natural freshets; that an enormous amount of timber tributary to the river can be profitably driven to market upon the streams, but that all of it cannot be transported on the natural freshets, or without the aid of artificial freshets; that the appellant, in conducting its business as a driving company, is about to construct a large splash dam, one-half mile above respondent's light and power plant, intending thereby to collect and store water for creating artificial freshets at seasons when no natural freshets nccur; that at all times when the water is being collected by this dam, its flow past respondent's land will temporarily cease; that it will require at least nine hours to collect and store the water each time the dam is closed, which will be a number of times each week; that while the dam is thus closed, the respondent's plant will be compelled to remain idle for want of sufficient water to create power; that respondent is a riparian owner of land abutting upon the stream, being the land upon which its plant is located, and that it will be irreparably damaged if the appellant is permitted to continue its interference with the natural flow of the water.
The Kalama river is a navigable stream, being useful for the profitable floating of timber products at seasons when natural freshets occur. The appellant has, under the laws of this state, authority to improve the river, to clear it from obstructions, to construct wing dams, splash dams and other improvements, and to collect and store water for artificial freshets thereby extending the navigability of the stream for driving purposes. Appellant contends that in making such
improvements, it has the right to retard the natural flow of the water whenever necessary for the creation of artificial freshets, and to do so without interference from the respondent. It insists that the state itself has the right, in the absence of congressional interference or control, to improve all navigable streams for the purpose of securing better transportation facilities to the public; that it may do so without interference or protest from riparian owners whose land is not actually taken, destroyed or submerged; that when it, by statute, authorized appellant and kindred corporatious to make such improvements, it delegated its own power and authority to them; that such delegation of authority is valid; that floatable streams are navigable public highways, and that the statutory right of driving companies to erect dams and other improvements, and to create artificial freshets on such floatable streams, thereby improving and extending their navigability for public use, has been sustained by this court; citing East Hoquiam Boom & Logging Co. v. Neeson, 20 Wash. 142, 54 Pac. 1001; Watkins v. Dorris, 24 Wash. 636, 64 Pac. 840, 54 L. R. A. 199; Lownsdale v. Grays Harbor Boom Co., 36 Wash. 198, 78 Pac. 904; Dawson v. McMillan, 34 Wash. 269, 75 Pac. 807.
Ilaving made the above contention, the appellant further insists that, as long as it does not trespass upon or take physical possession of respondent's lands, does not flood or destroy any portion thereof, and is not guilty of negligence while driving timber products or creating artificial freshets, but confines its operations to the bed of the river, it will not be unlawfully interfering with any of respondent’s riparian rights. In effect, it contends that any incidental damage resulting to respondent from its operations upon the river will be damnum absque injuria. In support of these contentions appellant cites numerous authorities, including the following cases from the states of Wisconsin, Maine and Oregon, upon which it predicates its principal arguments: Falls Mfg. Co. v. Oconto River Imp. Co., 87 Wis. 134, 58 N. W. 257; Black River Imp. Co. v. La Crosse Booming & Transp. Co., 54 Wis. 659, 41 Am. Rep. 66, 11 N. W. 443; Cohn v. Wausau Boom Co. 47 Wis. 314, 2 N. W. 546; Brooks v. Cedar Brook & S. C. R. Imp. Co., 82 Me. 17, 17 Am. St. Rep. 459, 19 Atl. 87, 7 616 L. R. A. 460; Weise v. Smith, 3 Or. 445, 8 Am. Rep. 621; Felger v. Robinson, 3 Or. 455. These authorities, which to some extent sustain appellant's position, cannot be followed or approved by us if we are to continue in harmony with our previous holdings in Washington cases hereinafter mentioned.
The respondent, being a riparian owner upon the Kalama river, has, as such, valuable property rights which cannot be taken or damaged for the public use without compensation. One of these is its right to a continuance of the natural and ordinary flow of the water over, across, and past its lands: Gould on Waters, 3d ed., sec. 204. This riparian right, guaranteed by the common law, has been repeatedly recognized and protected by this court. In Monroe Mill Co. v. Menzel, 35 Wash. 487, 102 Am. St. Rep. 905, 77 Pac. 813, 70 L. R. A. 272, we said: “It being established that the stream is a navigable one, and that appellant shall not interfere with respondent's navigation of it, we must next inquire as to the methods and limitations of that navigation. The court refused to grant appellant an injunction preventing respondent from continuing the storage of water in Lake Roesiger, and the periodic flushing of the stream. We think this was error. Under well-established principles, appellant is entitled to the natural flow of the water across his land: Crook v. Hewitt, 4 Wash. 749, 31 Pac. 28; Rigney v. Tacoma Light & W. Co., 9 Wash. 576, 38 Pac. 147, 26 L. R. A. 425; New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 64 Pac. 735, 54 L. R. A. 190. It is said that, although language used in the above cases declares the general principle, yet there was an actual threatened diversion of a substantial portion of the water in each case, while, in the case at bar there is no diversion, but simply a detention, followed by a restoration of all the water before it reaches appellant's lands. This detention, however, amounts practically to a total detention for irregular periods, and at times unknown to appellant, without warning, it is released in such quantities as to greatly increase the natural flow and, according to testimony in the record, actually causes an overflow of his lands."
In this case damages sustained by the respondent do not result from irregular and unexpected freshets created by the 617 sudden release of water through splash dams, but they are caused by an interruption of the natural flow of the river, depriving respondent of necessary water which, as a riparian owner, it is entitled to use in producing electric power. In Matthews v. Belfast Mfg. Co., 35 Wash. 662, 77 Pac. 1016, we said: “The next contention is that the court erred in enjoining the appellant from floating logs down the stream by means of artificial freshets and splashes. The argument is that the stream is a navigable one, and that it has the right to use it for the purpose of floating logs, and is liable only for a misuse or abuse of the privilege, and that the evidence