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May 1910]
Opinion Per CHADWICK, J.

ging operations, the company has constructed a logging road, or fore-and-aft bridge or pole road, across a portion of section 31 and across Stewart creek; that the bridge is so constructed that it rests in the waters of, and in the bed of, the creek, and that the injury complained of has resulted because of the improper construction and use of the logging road. The court also found that the defendant was logging in the way such operations are usually carried on in Western Washington, and in a reasonably prudent and careful manner. The court decreed that the logging company be perpetually enjoined and prohibited from hauling or transporting any logs across Stewart creek, and prohibited from hauling or transporting logs across the fore-and-aft bridge maintained across the creek, until the bridge be reconstructed in such way that the bridge will not interfere with the natural flow of the creek, the court having theretofore found that the bridge could be raised about one foot above the water at a very slight expense. Defendant has appealed.

The only question in the case is stated by counsel for appellant as follows:

"Whether, since appellant is carrying on its logging operations in an ordinarily prudent and careful manner, it can be enjoined at the suit of the city on account of the slight incidental disturbance of the waters of Stewart creek from which the city derives its water supply; . . . the determination of this case depends upon whether our use of the stream is reasonable."

Both parties, so far as it is made to appear, are rightfully occupying the land, and if the court's findings could be limited to the one, holding that the logging operations were carried on in a reasonably prudent and careful manner, nothing would be left for our consideration. But the court having also found that the defendant had, after the issuance of the restraining order, hauled some of its heavy equipment over the fore-and-aft bridge, causing the bridge to settle and lower into the creek; that if used in its present condition

24-58 WASH.

Opinion Per CHADWICK, J.

[58 Wash.

the water would be made muddy and somewhat polluted, and that to obviate this possibility the bridge should be elevated, we think a case is presented calling for the equitable interference of the court, opening as it were the legal question whether one of two joint or common occupants of the land can so use the stream as to annoy or injure the other, when it can reasonably be avoided.

The cases cited by appellant go no further than to hold that every man had the right to the natural use and enjoyment of his property, and if, as an incident to that use and enjoyment, he does not unreasonably trespass upon the rights of others, no action will lie. But it does not follow that others may not compel a reasonable regulation of that use. Such mischief as appellant is likely to feel from the insistence of respondent that its water supply be kept pure and clear can be obviated at an expense so trifling that compliance with the order of the court cannot be called a hardship or work a loss of property rights. On the other hand, any obstruction tending to the pollution of the waters of Stewart creek might work irreparable mischief, reaching far beyond the inconvenience of the landowner. Even in the case of Helfrich v. Catonsville Water Co., 74 Md. 269, 22 Atl. 72, 28 Am. St. 245, 13 L. R. A. 117, cited by counsel, an exception to the general rule that the pollution of a stream by a riparian owner could not be restrained where it was a natural incident to the proper and reasonable use, is admitted where there is a necessity founded upon "grave public considerations." The whole subject is covered by the case of McEvoy v. Taylor, 56 Wash. 357, 105 Pac. 851, where this court. said:

"Each riparian owner is entitled to a reasonable use of the waters as an incident to his ownership, and as all owners upon the same stream have the same right of reasonable use, the use of each must be consistent with the rights of others, and the right of each is qualified by the rights of others."

We have met this case, as it has been presented to us, upon

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the theory of riparian ownership. But it seems to us that the judgment of the lower court may be sustained upon the further ground, that the use of the stream by the logging company is not in any way involved, within the meaning of the authorities cited, or in any way necessary to the logging operations of appellant. That is to say, the fouling of the water results not from the use of the stream for any purposes incident to the ownership of the land, but from the use of the land itself; and this being so, the condition put upon appellant by the court—that is, that it raise its bridge one foot above the flowing water-is a reasonable regulation in favor of the one who is, and who alone is, using the waters of Stewart creek. In other words, appellant is using the land and not the water, and its pollution is not a necessary incident to the business it is carrying on.

The judgment is affirmed.

RUDKIN, C. J., FULLERTON, MORRIS, and GOSE, JJ., con

cur.

[No. 8575. Department One. May 18, 1910.]

CLARENCE CUNNINGHAM, Respondent, v. INDEPENDENCE CONSOLIDATED MINING COMPANY, LIMITED, et al.,

Appellants.1

CORPORATIONS - STOCK- - SUBSCRIPTIONS-CONSTRUCTION-FREE OF ASSESSMENT. An agreement that a stockholder was to receive 100,000 shares of stock "free of assessment" until stock held by other stockholders had been paid for in full, does not mean "free from any charge or payment" so as to relieve the stockholder from paying for his stock in the first instance.

Equity will

SAME-RIGHTS OF STOCKHOLDERS-ACTIONS-EQUITY. not give relief to a stockholder of a corporation, who, in bad faith made arrangements with a creditor whereby the corporation's property was subjected to execution sale, under an agreement whereby the same was to be redeemed and deeded to the stockholder, who

'Reported in 108 Pac. 956.

Opinion Per CHADWICK, J.

[58 Wash.

tried to defeat a redemption by the corporation when he might have paid the judgment or redeemed and held as equitable owner for the company.

SAME LACHES. An action by one claiming stock in a corporation and for an accounting and equitable relief is barred by laches, where he was not diligent in the prosecution of his remedy for breach of the contract for his stock, but delayed seven years after knowledge of the breach, during which time he jeopardized the property of the corporation and subjected it to forced sale to the end that the title should come under his personal control.

Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered July 24, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to establish rights as a stockholder in a corporation, for an accounting and other equitable relief. Reversed.

Alex M. Winston and B. B. Adams, for appellants.
Wm. T. Stoll and C. P. Lund, for respondent.

CHADWICK, J.-In the spring of 1898, plaintiff became interested in certain mining claims in the Coeur d'Alene country, Idaho. These he held under verbal or written options expiring September 10 of that year. With another he had done some little work on the claims and had made several unsuccessful efforts to interest capital, so that, on or about September 1, he sought defendant Kennedy J. Hanley, who went with him to look over the ground, and who thereupon agreed to furnish the money to take up the options, provided extra time could be arranged and the property on further investigation proved to be an attractive investment. New options were obtained by plaintiff in his own name, not only on the property then held by him, but upon some other ground adjoining. Between that time and March, 1899, Hanley expended considerable money in exploring and developing the property.

In March, 1899, a corporation, the Independence Consolidated Mining Company, Ltd., was organized. A board of

Opinion Per CHADWICK, J.

May 1910]

trustees was elected. This board selected defendant Hanley as president and plaintiff as secretary. The price of the stock was fixed at fifteen cents per share, and plaintiff was made selling agent. He also acted as general superintendent of the work at the mines, and received a salary of $150 per month. One hundred and fifty-two thousand shares of stock had been sold or subscribed under contract to pay upon call, up to September 1, 1899. On or about that date a meeting of the trustees was held, at which at least one of the stockholders was present, representing himself and some others who refused to carry out their contracts of purchase for the reason that the company did not have title to the property. Bad feeling had come between plaintiff and Hanley, and in consequence at that meeting the plaintiff resigned as secretary and another was elected. From that time the plaintiff took no active interest in the affairs of the company. Defendant Hanley assumed the active management of the company and, out of his own funds, paid the full amount due upon all the options, excepting the sum of either $500 or $750, and the balance of the purchase price of one claim which he deemed worthless. The whole sums so paid by him aggregated $47,200. In 1901 the company had become indebted to numerous creditors. A suit was brought by the Coeur d'Alene Hardware Company in its own behalf and as assignee of others. This suit was prosecuted to judgment. The several option agreements, together with their accompanying deeds, had been left at the First National Bank of Wallace. Plaintiff was named as grantee in all of these and, they not having been withdrawn and recorded, the company had no record title to its property. These facts being known to the hardware company, at its solicitation and upon the request of the creditors, who gave plaintiff the $500 or $750 necessary to cover the balance due on one of the claims, plaintiff took up the deeds, put them of record and then made a deed to the Independence company. Thereupon an exe

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