NORTH SHORE BOOM & DRIVING CO. v. NICOMEN BOOM CO 212 U.S. 406 (1909)

The Nicomen Boom Company, hereinafter called the plaintiff, commenced an action against the North Shore Boom & Driving Company, hereinafter called the defendant, in the superior court of the state of Washington, Pacific county, to enjoin the defendant from building a boom in the North river (a river wholly within the boundary of the state of Washington), within the locality designated in the plaintiff's plat and survey for its boom.

The action was founded upon the allegations that the plaintiff was the first to file its plat, and that it commenced to build its boom under the statutes of the state of Washington, and [212 U.S. 406, 407]   that the defendant was threatening to build its boom within the locality marked out and designated by the plaintiff in its plat or survey filed with the secretary of state, although its boom had not actually been completed the whole distance indicated in such plat or survey.

The defendant denied the various allegations of the plaintiff, and the parties went to trial, which resulted in a judgment for the defendant, dismissing the plaintiff's complaint. The plaintiff appealed to the supreme court of the state, where the judgment was reversed and the cause remanded to the superior court, with directions to enter judgment enjoining the defendant from building the boom within the location marked on the plat or survey for the plaintiff's boom. See the opinion of the state court, 40 Wash. 315, 82 Pac. 412, showing plainly and in full the grounds of the decision.

The defendant has sued out a writ of error from this court and brings the judgment here for review.

Messrs. Charles E. Miller, John M. Thurston, W. H. Abel, James B. Howe, and Samuel H. Piles for plaintiff in error.

[212 U.S. 406, 409]   Messrs. James G. Wilson, W. W. Cotton, and Welsh & Welsh for defendant in error.

[212 U.S. 406, 410]  

Statement by Mr. Justice Peckham:

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

This is a contest between two boom companies incorporated under the laws of the state of Washington, authorizing the organization of corporations of this kind.

In April, 1900, the plaintiff, after its organization, filed in the office of the secretary of state of Washington its plat or survey, showing so much of the shore lines and waters of the North river and lands contiguous thereto as it proposed to appropriate under the laws of the state. Before beginning its boom it submitted to the Secretary of War of the United States the plan of its proposed improvement and a plat of the territory to be occupied thereby, and was granted permission by the War Department to construct a boom within the limits of the river covered by the plat. The plaintiff proceeded to erect its boom along the left side of the river, but stopped short of the upper end of the territory covered by its plat of location. The boom was substantially constructed at a cost of about $16,000, and has been operated from the time of its erection as originally constructed; and plaintiff has always expected to extend the boom within the limits of the plat of location as the demands of business might require. Some days before the commencement of the actual work of extending the plaintiff's boom, the defendant commenced to construct its boom within the limits of the original plat of the plaintiff. [212 U.S. 406, 411]   The defendant was organized in 1903, and filed its plat and survey in the office of the secretary of state of the state of Washington, and it alleges that, before commencing to construct its boom, it secured from the War Department of the United States permission to construct the boom within its location. The boom of the defendant, if constructed according to its plans, would cause logs coming down the river, intended to reach the plaintiff's boom, to enter the main boom of the defendant. The booms, as proposed by the plaintiff and defendant, cannot both be constructed. If the boom of the plaintiff should be extended up the river, within the limits of its plat and survey, the passage between its line of dolphins and the dolphins of the defendant on the other side of the stream would be so narrow as to block navigation. Moreover, it would be impracticable to operate both booms under such circumstances. If the defendant is permitted to operate its boom as intended, the boom of the plaintiff will receive only such timber from up the river as may escape from the boom of the defendant, and such as may be transmitted through that boom to the plaintiff. These facts are practically undisputed and are found in the record and findings of the court.

The Federal government has taken no part in the dispute between the two corporations. The laws of the state provide for proceedings to build booms, and the defendant contends that it complied with those statutes, and had also obtained from the chief clerk of the War Department a written statement, dated March 23, 1903, stating that the War Department would not interpose any objection to the construction and maintenance of the boom in the manner proposed by the defendant, so long as it did not unreasonably interfere with navigation.

Several laws have been passed by Congress, contained in the river and harbor appropriation acts, prohibiting obstructions in the waters of the United States, and also providing for getting the consent of the government, through the Secretary of War, to the building of booms, bridges, etc. See [212 U.S. 406, 412]   act of 1890, 26 Stat. at L. 454, chap. 907, 7, 10. Also act of March 3, 1899, 30 Stat. at L. 1151, chap. 425, 10, U. S. Comp. Stat. 1901, p. 3541

The state court did not find it necessary to decide the question whether the defendant had complied with the Federal statute in regard to the building of its boom, but held that it had not complied with the statutes of the state of Washington in regard to the building of such proposed boom, and it therefore had no right to build it, and it enjoined the defendant from so doing, and directed judgment to be entered to that effect.

Before discussing the merits of the case, the defendant in error made a motion to dismiss the writ of error for the want of jurisdiction, there being, as it asserts, no Federal question reviewable under 709 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 575).

The river in question is a navigable stream, entirely within the state of Washington, and, in the absence of any statute by Congress, a state has plenary power in regard to such waters. Obstructions in those waters may be offenses against the laws of the state, but constitute no offense against the United States in the absence of a statute. Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 , 31 L. ed. 629, 8 Sup. Ct. Rep. 811. The question whether the acts complained of, such as obstructions, etc., in the river, are lawful or unlawful under the state law, is, as was said in the above cited case (page 9), a state question, not a Federal one. Where there is a Federal law which it is claimed also applies to the subject and requires the consent of the Federal government, then there is a concurrent or joint jurisdiction of the state and national governments over the erection of a structure which obstructs navigation. Cummings v. Chicago, 188 U.S. 410 , 47 L. ed. 525, 23 Sup. Ct. Rep. 472; Montgomery v. Portland, 190 U.S. 89 , 47 L. ed. 965, 23 Sup. Ct. Rep. 735.

It is contended, however, on the part of the counsel for the defendant, that whether the assent of the state has been given to the erection of the structure is, in and of itself, a Federal question, and he cites United States v. Bellingham Bay Boom Co. 176 U.S. 211, 218 , 44 S. L. ed. 437, 442, 20 Sup. Ct. Rep. 343, as authority for the proposition. That case was commenced in the circuit court of the United States for the state of Washington, northern division, and was [212 U.S. 406, 413]   brought by the United States under the direction of the Attorney General, pursuant to the provisions of 10 of the river and harbor bill of 1890 ( 26 Stat. at L. supra). It was brought to enforce the right of the government to prevent the erection of a structure that obstructed the navigation of the river. It was held in that case that the words in the 10th section, 'not affirmatively authorized by law,' referred to the state as well as to the Federal law, and that the question then arose as to whether the structure was permitted by that [state] law, and as the law of Congress provided that it might be permitted if affirmatively authorized by a state law, the question whether it was so authorized became, in effect, a question whether the Federal law did or did not permit it. If it were authorized by the state law, then the Federal law provided that it might continue; and whether it was or not became a Federal question.

This is not such a case, and it is not brought by the government under the section above mentioned, but the suit concerns private parties only, and the statute does not, in the section applicable, refer to any state law, as in the case cited. Section 7, river and harbor act of 1890, 26 Stat. at L. 454, chapter 907. And 10 of chapter 425 of the Laws of 1899, 30 Stat. at L. 1151, supra, alters the 10th section of the statute of 1890 by providing 'that the creation of any obstruction not affirmatively authorized by Congress to the navigable capacity of any of the waters of the United States is hereby prohibited.' It leaves out the words 'not affirmatively authorized by law,' and substitutes 'not affirmatively authorized by Congress.' There is, therefore, no reference to state action or state law. Obstruction not affirmatively authorized by Congress is prohibited, but the case of the state assent remains with the state for its sole adjudication.

The construction of the boom of defendant in this case, the state court has decided, was not authorized by the state. Whether it was or not is not a Federal question. The writ of error is therefore dismissed.