Winsor v. Hanson

Citations

• 40 Wash. 423
• 82 P. 710
• 1905 Wash. LEXIS 997

Syllabus

<p>Nuisance — Abatement — Boom Across Stream — 'Evidence — Admissibility. In an action to enjoin tbe removal of a boom placed across a stream on tbe plaintiffs land for tbe purpose of preventing drift wood from injuring bis premises, evidence as to' tbe practicability of tbe plaintiffs plan is immaterial.</p> <p>Same — Removal by Flood Pending Action — Subject-Matter op Controversy. In an action to enjoin tbe removal of a boom placed across a stream on tbe plaintiffs lands, in wbicb tbe defendant files a cross-complaint for an injunction against tbe obstruction of tbe stream, tbe fact that tbe boom was carried away by bigb water between tbe commencement of tbe action and tbe time of trial does not warrant a dismissal because of cessation of tbe controversy; since tbe subject-matter of tbe action was not tbe particular boom but tbe right of tbe plaintiff to obstruct tbe stream.</p> <p>Same — Issues—Navigability op Stream. In an action to enjoin tbe removal by an upper proprietor of a boom placed across tbe stream on tbe plaintiff’s lands, the navigability of tbe stream is no defense to tbe action, when it has not been placed in issue by tbe pleadings and there is no attempt to justify its remoyal upon that ground.</p> <p>Same — Abatement by Act op Party — Justification—Injunction. A proprietor is not justified in entering upon adjoining lands to abate a nuisance by tbe removal of a boom placed across tbe stream, where it has caused-him no injury, and merely because of a probability that it will create a nuisance in tbe future; nor will injunction lie against such an obstruction where tbe apprehended damage by tbe backing up of water is merely problematical.</p> <p>Same — Dismissal op Cross-Complaint — Without Prejudice. In an action to enjoin tbe removal of a boom placed across a stream, a dismissal of a cross-complaint to enjoin the obstruction as a nuisance should be without prejudice, where there is proof that no .present injury had been done and injury in the fut