Opinion of the Court GORDON, J. [20 Wash. to a hundred and fifty feet, and containing numerous shallows and sandbars. The tide ebbs and flows for about seven or eight miles above the mouth of the river. Plaintiff's lower dam is situated about seven miles above tide water. Respondent Neeson is the owner of timber land lying adjacent to and on both sides of said stream, above that portion thereof which is included in plaintiff's map of location. In March, 1896, Neeson began the construction of a dam located wholly upon his own land, at a point on the stream distant about three-quarters of a mile above plaintiff's upper dam. Neeson completed his dam in June, 1896. He also constructed in tide water a suitable boom for holding his logs. The evidence transmitted to this court satisfies us that, prior to the improvement of this river and the removal of obstructions therefrom, it was wholly unnavigable and non-floatable. It also satisfactorily appears that the Lytles were the first to improve and remove obstructions from the stream above tide water. These improvements were commenced by them some time in the fall of 1893. Immediately upon completing its incorporation, the plaintiff proceeded to further improve the stream, and removed snags, fallen timber, roots and other obstructions therefrom, besides repairing and completing the lower dam and building its upper dam hereinbefore mentioned, expending in such improvements a sum approximating $20,000, and ever since has continued to keep the channel of said stream below its upper dam, and between said dam and the mouth of the river, free from obstructions, and for that purpose has kept, and still keeps, men constantly employed, and, by means of the water stored by its dams, has rendered the stream floatable for the purposes of moving and driving logs down to tide water at all seasons of the year. It also appears that the annual expense of keeping the stream clear of obstructions, so as to enable the logs to be floated thereon, between plaintiff's upper dam Nov. 1898.J Opinion of the Court-GORDON, J. and tide water, amounts to hundreds of dollars. Plaintiff's dams are constructed in a scientific, workmanlike and proper manner, and the same is true of Neeson's dam. Since the summer of 1895, plaintiff, by reason of its improvements done upon the stream, the removal of obstructions therefrom and the erection of its dams, has been able, ready and willing to sluice, sack and drive the logs and timber products placed in the bed of said stream within the confines of its plat, or delivered into its ponds, and to handle all such logs and other timber products of all persons upon the same terms, without discrimination as to time of sluicing, sacking and driving, and claims to charge and collect for such service reasonable and uniform tolls, not exceeding sixty cents per thousand feet board measure, either on logs, spars or other large timber, which sum was determined by the directors of the plaintiff corporation (pursuant to § 5 of the act of March 18, 1895, Session Laws 1895, p. 130), to be reasonable compensation. In the summer of 1896 the defendant, who, after the incorporation of plaintiff and the erection of plaintiff's improvements, engaged in the business of logging from his own land on said stream, above the upper dam of appellant, floated into appellant's lower dam 734 logs. At that time there were other logs lying in plaintiff's dam belonging to different parties, which the owners desired should be driven to tide water; and it had become the duty of plaintiff, under the act of 1895, supra, to sluice and drive such logs down the river; and the position of respondent's logs in plaintiff's dam was such as to impede and obstruct the driving of such other logs unless respondent's logs were also driven. It satisfactorily appears that plaintiff notified respondent Neeson to remove his logs; that Neeson claimed the right to float his logs down the river, and insisted that he could do so if not obstructed by plaintiff's dam. 10-20 WASH. Opinion of the Court - GORDON, J. [20 Wash. Upon the question of whether Neeson, by the aid of splashes of water from his own dam, could have floated his logs to tide water, the evidence is very conflicting, but we deem it quite immaterial to determine that question. One fact, and, in our judgment, a controlling one, is clear, viz., that in its natural condition, and but for the expenditure of money upon the part of the plaintiff and its incorporators in the improvement of the stream and the removal of the obstructions hereinbefore referred to, it would have been utterly impossible for respondent to have floated his logs thereon; so that the extent to which this claim on the part of respondent can go is that, in the improved condition of the stream, he would be able to float his logs on down to the river's mouth by successive splashes from the waters of his own dam. It is well settled that a stream which can only be made navigable or floatable by artificial means is not a public highway. The Daniel Ball, 10 Wall. 557; Diedrich v. Northwestern Union Ry. Co., 42 Wis. 248 (24 Am. Rep. 399); Smith v. Fonda, 64 Miss. 551-559 (1 South. 757); Holden v. Robinson Mfg. Co., 65 Me. 216; East Branch Sturgeon River Imp. Co. v. Lumber Co., 69 Mich. 212 (37 N. W. 192); Brown v. Chadbourne, 31 Me. 9 (50 Am. Dec. 641); Thunder Bay River Booming Co. v. Speechly, 31 Mich. 335 (18 Am. Rep. 184); Morgan v. King, 35 N. Y. 459 (91 Am. Dec. 58); Weise v. Smith, 3 Ore. 445 (8 Am. Rep. 621); 16 Am. & Eng. Enc. Law, pp. 243, 244. But suppose we concede (what the evidence fails to establish) that at occasional periods, of brief duration, freshets occur, which render the stream in its natural condition floatable for logs and other timber products; how is the case affected by that fact? If there is a principle applicable to the present case more firmly settled in the law than any other, it is that, in the absence of congres Nov. 1898.] Opinion of the Court- GORDON, J. sional interference with, or control of, the subject, the state possesses the undoubted right to promote, by artificial means, the navigability or floatability of rivers and streams within its borders, and thereby render them more useful and beneficial to the public. Pound v. Turck, 95 U. S. 459; Huse v. Glover, 119 U. S. 543 (7 Sup. Ct. 313); Wisconsin River Imp. Co. v. Manson, 43 Wis. 255 (28 Am. Rep. 542); Palmer v. Com'rs of Cuyahoga County, 3 McLean, 226; Carondelet Canal & Nav. Co. v. Parker, 29 La. An. 431 (29 Am. Rep. 339); Duluth Lumber Co. v. St. Louis Boom & Imp. Co., 17 Fed. 419; Osborne v. Knife Falls Boom Corp., 32 Minn. 412 (21 N. W. 704, 50 Am. Rep. 590); Cooley, Constitutional Limitations (5th ed.), pp. 729-731; Benjamin v. Manistee Riv. Imp. Co., 42 Mich. 628 (4 N. W. 483); Wadsworth v. Smith, 11 Me. 278 (26 Am. Dec. 525); Kellogg v. Union Co., 12 Conn. 7; Monongahela Bridge Co. v. Kirk, 46 Pa. St. 112 (84 Am. Dec. 527); Lake Shore & M. S. Ry. Co. v. Ohio, 165 U. S. 365 (17 Sup. Ct. 357); Willson v. Black Bird Creek Marsh Co., 2 Pet. 245; Sands v. Improvement Co., 123 U. S. 288 (8 Sup. Ct. 113). In Pound v. Turck, supra, the federal supreme court had this question under consideration, and, in the course of the opinion, say: "There are within the state of Wisconsin, and perhaps other states, many small streams navigable for a short distance from their mouths in one of the great rivers of the country, by steamboats, but whose greatest value in watercarriage is as outlets to sawlogs, sawed lumber, coal, salt, etc. In order to develop their greatest utility in that regard, it is often essential that such structures as dams, booms, piers, etc., should be used, which are substantial obstructions to general navigation, and more or less so to rafts and barges. But to the legislature of the state may be most appropriately confided the authority to authorize these structures where their use will do more good than harm, and to impose such regulations and limitations in Opinion of the Court- GORDON, J. [20 Wash. their construction and use as will best reconcile and accommodate the interest of all concerned in the matter." And the same authorities and numerous others hold that it is competent for the state to permit corporations to be formed for the purpose of improving the navigability or floatability of such streams, and allow compensation therefor, by way of tolls or otherwise. It would, indeed, be most unfortunate if this was not the law. In a state like ours, especially the western portion of the state, which abounds in numerous small streams and rivers running through magnificent forests, and which furnish the sole or principal outlet for bringing the product of these forests to market, it is of the utmost importance that the legislature should possess the power to designate agencies for the purpose of improving these highways and rendering them of practical utility and benefit. In their natural condition, and without improvement by artificial means, many of these streams and rivers for the greater portion of the year—and many during the entire year-are wholly unsuited and valueless for this purpose; but, by the removal of natural obstructions and the construction of suitable dams for storing water, they can easily and readily be made valuable conduits and arteries for the prosecution of the important business of lumbering and other commerce. These conditions existing, the legislature wisely provided by the act in question (Laws 1895, ch. 72, p. 128, Bal. Code, §§ 4387-4394), for the incorporation of companies to improve these streams, and empowered them to charge reasonable compensation by way of tolls for the expense incurred in making such improvements. Similar statutes have long been in force in the great lumbering states of Maine, Michigan, Wisconsin and Minnesota; and, while it is possible that in some instances the powers conferred have been abused, it is believed that, in the main, they have contributed largely to the public welfare, |