LOGS - STRAY - DEFINITION UNDER RCW 76.40.010

LOGS - STRAY - DEFINITION UNDER RCW 76.40.010

Sunken logs in Lake Drano are stray logs in waters of this state under the provisions of RCW 76.40.010.

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                                                                    June 4, 1959

Honorable Bert Cole, Commissioner
Department of Natural Resources
Public Lands-Social Security Building
Olympia, Washington                                                                                                    Cite as:  AGO 59-60 No. 43

Attention:  Mr. Les Morton

Dear Sir:

            You have asked our opinion on two questions, which we paraphrase as follows:

            1.  Are sunken logs "stray logs" within the meaning of RCW 76.40.010?

            2.  Is Lake Drano, located in Skamania County, a "water of this state" within the meaning of RCW 76.40.010?

            We answer both questions in the affirmative.

                                                                     ANALYSIS

            The facts pertinent to this analysis are that Lake Drano, a small lake in Skamania county covering approximately 50 acres, is used for the storage and movement of commercial logs, being connected to the Columbia River by an artificial canal constructed about 1934.  One tug boat operator has moved most of the logs on this lake for approximately ten years and has used most of the lake at one time or another for storage of log rafts or booms.

             [[Orig. Op. Page 2]]

            A considerable number of commercially valuable logs are resting on the bottom of the lake which have become waterlogged and have sunk, probably during the past 50 years, since the lake has been used for log storage and movement during that extended period.  In addition, there are a number of logs floating submerged beneath the surface which have not yet become sufficiently waterlogged to sink to the bottom.

            Your first question inquires as to whether the logs floating beneath the surface or resting on the bottom of the lake are "stray logs" within the meaning of RCW 76.40.010 (1957 Supp.) which provides in pertinent part as follows:

            "Words and phrases herein used, unless clearly contrary to or inconsistent with the context of this chapter or the section in which used, shall be construed as follows:

            " . . .

            "(2) 'Stray logs' means and includes any and all logs, piling, poles and boom sticks having a merchantable value that are adrift or have been adrift and stranded on beaches, marshes, or tidal and shorelands which have escaped in any manner from the owner or from a transportation agency, from storage or while being transported; . . ." (Emphasis supplied)

            The foregoing does not specifically include sunken logs or logs floating beneath the surface within the quoted definition.  It is, therefore, necessary to resort to recognized rules of statutory construction to determine whether their inclusion was intended by the legislature.  The fundamental objective of statutory construction is to determine and give effect to the intention of the legislature.  Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858.  This intention is to be found by reference to:

            ". . . all the terms and provisions of the act in relation to the subject of legislation, and by a consideration of the nature of the act, the general object to be accomplished, and the consequences that would result from construing the particular statute in one way or another. . . ." (Spokane County ex rel. Sullivan v. Glover, 2 Wn. (2d) 162, 169, 97 P. (2d) 628.)

             [[Orig. Op. Page 3]]

            A statute must be construed, where possible, so as to harmonize the entire statute and make it sensible and effective.  Klippert v. Industrial Insurance Department, 114 Wash. 525, 196 Pac. 17.

            An examination of chapter 76.40 RCW in its entirety suggests several apparent objects or purposes sought to be accomplished by the legislature which are helpful in establishing the legislative intent with reference to what are stray logs within the statutory definition.  Most important among those objects are the elimination of navigation hazards, conservation of a basic natural resource, and protection of log owners against those who would convert the logs to their own use.  To the extent that the statute provides a means for removing navigation hazards which are floating on or beneath the surface, the statute operates to facilitate navigation.  To the extent that lost or abandoned logs are put to commercial use, the statute operates as a conservation measure.  To the extent that only licensed log patrollers may recapture such logs and then only for the benefit of the owner, if ascertainable, the statute operates to protect private property rights.

            Having regard for the purposes of the act, we are compelled to conclude that sunken and submerged logs are stray logs within the statutory meaning.

            Supporting this conclusion is a Washington case directly in point.  State ex rel. Spokane United Railways v. The Department of Public Service, 191 Wash. 595, 598, 71 P. (2d) 661, involved an interpretation of a statute which defined common carriers and mentioned street railroads and street railway companies in the definition.  The question presented was whether motor buses were included in the act.  In concluding that they were, the court placed primary emphasis on the purposes of the act quoting with approval from 2 Lewis' Sutherland Statutory Construction (2d ed.), § 379, page 730, as follows:

            "'"A thing which is within the object, spirit and the meaning of the statute is as much within the statute as if it were within the letter."'"

            A contrary conclusion would distinguish between a log floating on the surface and one floating just beneath the surface, or between a log lying on a beach or tideland and one just off such beach lying on the bottom under a foot or two of water.  Such distinctions are of form rather than substance and not to be reached by construction.  Klippert v. Industrial Insurance Department, supra, directs that statutes are to be construed so as to make them sensible and effective.  A construction that would eliminate sunken and submerged logs from the definition of stray logs would make the act in question ineffectual and absurd when viewed in the light of the objects sought to be accomplished.

             [[Orig. Op. Page 4]]

            Another rule of statutory construction is enunciated in State ex rel. Spokane United Railways v. The Department of Public Service, supra, as follows:

            ". . . the expression of one thing will, under certain circumstances, exclude others. . . ."

            RCW 76.40.010 defining stray logs, provides in part:

            ". . . all logs, . . . that are adrift or have been adrift and stranded onbeaches, marshes, or tidal and shorelands which have escaped . . ."  (Emphasis supplied)

            Does the inclusion of beaches, marshes, or tidal and shorelands, exclude lake or river bottoms under the above quoted rule?  InState ex rel. Spokane United Railways v. The Department of Public Service, supra, the act in question, defining common carriers, mentioned street railroads and street railway companies.  As we noted before, the question was whether motor buses were included in the act.  The court said on page 598:

            ". . . The rule that the expression of one thing will, under certain circumstances, exclude others, should be applied as a means of discovering the legislative intent, and its application should not be permitted to defeat the plainly indicated purpose of the legislature."  [citing authorities]

            "In determining the legislative intent, the purpose for which a law was enacted is a matter ofprime importance . . ." (Emphasis supplied)

            We believe that reference to the purposes and objects of the log patrol act compels our conclusion that sunken and submerged logs are stray logs as therein defined.

            Your second question is whether Lake Drano is a state water within the meaning of the applicable statute.  RCW 76.40.010 (1957 Supp.) provides in part:

            "(5) 'Waters of this state' include any and all bodies of fresh and salt water including all rivers and lakes and their tributaries, harbors, bays, bayous, and marshes within the jurisdiction of the state capable of being used for the  [[Orig. Op. Page 5]] transportation or storage of stray logs."

            We have suggested earlier that the fundamental object of all statutory construction is to ascertain and to give effect to the intention of the lawmakers.  Graffell v. Honeysuckle, supra.  Where the language of the statute is plain, free from ambiguity and devoid of uncertainty, there is no room for construction, for the meaning will be determined from the wording itself; State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693.

            Examination of the statutory definition reveals no ambiguity.  It is plain, free from ambiguity and devoid of uncertainty.  The fact that Lake Drano is within the state of Washington and actually used for transportation and storage of logs leaves no conceivable alternative but that the lake in question is a "water of this state" within the foregoing definition.

            In requesting this opinion, you indicated that a substantial percentage of the logs in question may now rest on private property.  We are enclosing several former opinions, (AGO 51-53-181, dated November 29, 1951, to the prosecuting attorney of Pacific county; AGO 51-53-252, dated March 5, 1952, to the honorable Andrew Winberg; and a letter to C. A. Payne, dated June 1, 1936) which deal with the rights and powers of persons licensed as log patrol and with the rights of log owners to recover their logs when they have come to rest on private property.  Those opinions hold generally that the log patrol acts as agent of the owner and has the same right to recover logs from private property.  That right ordinarily turns on the question of whether the logs are lost or abandoned.  If the logs are in fact abandoned, then the littoral owner has the better right to the logs.

            We trust the foregoing will be of assistance.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES R. JOHNSON
Assistant Attorney General