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.
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 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.C.omp. 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.C.omp. Stat. 1901, p. 575).