North Shore Boom Driving Company v. Nicomen Boom Company

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 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.

[Argument of counsel from page 407-409 intentionally omitted.]

Messrs. James G. Wilson, W. W. Cotton, and Welsh & Welsh for defendant in error.

[Argument of counsel from Page 409-410 intentionally omitted.]

Statement by Mr. Justice Peckham:

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