West Virginia Code
The consent of the state is given for the construction of a boom or booms, by corporations incorporated for the purpose, with or without piers, dam or dams, in the rivers, creeks or other streams of this state which may be necessary for the purpose of stopping and securing boats, rafts, logs, masts, spars, lumber and other timber: Provided, however, That no such boom or dam shall be constructed in any of the rivers, creeks or other streams of the state, which are navigable by steamboats at an ordinary stage of water above the places where such boom or dam is proposed to be located.
Every such corporation shall, after erecting its boom, have the exclusive privilege of maintaining a suitable boom or booms, with or without piers, dam or dams, across the stream designated, within two miles above its principal boom, for the purpose of stopping and securing boats, rafts, sawlogs and other timber of value, but such boom or booms shall be so constructed as to permit boats, rafts and other timber, when desired by the owner, to pass them without unavoidable delay and without paying toll, boomage or other charges, and may erect their booms on the rivers and other streams, and may dredge and clear the channels thereof, and remove obstructions therefrom; and such corporation may build sawmills on lands acquired in any other way than by condemnation; and may manufacture and sell lumber and construct tram-railways and dams, and do such other work as may be necessary for the purpose of getting logs and lumber to, down and from the river and its branches, on which such boom is located; and, in the event the lands necessary for such tram-railways cannot be purchased from the owner or owners thereof at a reasonable price, then such corporation may have the same condemned for such purpose in the manner now provided by law for cases of a similar nature: Provided, That nothing in this section shall be so construed as to prevent any boom company from using water surface for two miles below its boom for assorting and bunching its own and other boats, rafts, sawlogs and other timber of value, and that no company shall so construct its boom as to deprive another company of such right, nor shall any boom company which may construct a boom within two miles below a boom heretofore constructed have exclusive privileges of the water or stream above such other boom.
Boomage or toll shall be charged at a rate not less than 25¢ nor more than $1 per thousand feet board measure; or not less than twenty nor more than 80¢ per one hundred cubic feet, except as hereinafter provided, which rate shall be determined by a commission in the manner following, to wit: The circuit court of each county, the timber of which can be floated into the boom, or the judge of such court in vacation, shall appoint one person, and such corporation shall appoint a person and if such persons are unable to agree, they shall choose another person. None of the persons so selected shall be a stockholder or interested in such corporation. The persons so appointed and chosen shall be versed in the timber and lumber business, and be qualified to make such measurements and calculations as may be necessary. Persons so appointed or chosen shall constitute a commission, whose duty it shall be to fix the rates of boomage which the corporation may charge; and in determining this rate they shall take into consideration the ease or difficulty, as the case may be, of booming logs, etc., in such boom, and also any extraordinary expenditure of money which the corporation may have made to facilitate its business; and such commissioners shall fix a rate, which shall be in their judgment a fair and just compensation to the corporation for the capital invested and labor performed in booming logs, timber, etc., in the limits above described. And such commissioners may, in their discretion, or when requested to do so by parties interested, fix the separate rate which shall be charged for logs, ties, lumber, staves, or any other specific kind of lumber or timber which may be floated in such boom, by the hundred, thousand, or by bulk, as the case may be. The report of such commissioners shall be filed in the office of the clerk of the circuit court of each county in which a commissioner was appointed, and published within ten days after the report has been agreed upon as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county interested in such boom. Should the corporation or any interested party not be satisfied with the report of the commissioners, they may take exceptions thereto, which exceptions may be heard by the judge of the circuit court of any county interested, in term time or in vacation, and, if it appear to the court or judge that the rates established by the commissioners are unjust, either to the corporation or private persons, such report may be set aside and a new commission appointed. But unless exceptions are taken to the report of such commissioners within sixty days after the filing of the same, the report shall be taken as confirmed, and be binding upon all parties interested. Any boom company organized under the provisions of this chapter, or any party interested, may, if it so desire, ask for a commission once every five years, to revise the rate of boomage; such commission to be constituted as provided for in this section. When the stream boomed lies wholly in one county, there shall be two commissioners appointed by the circuit court of that county, who, together with the one appointed by the corporation, as hereinbefore provided, shall constitute such commission. If any controversy shall arise between such corporation and any person or persons having timber or other lumber in such boom, on account of such lumber, or the rates of boomage, the commissioners authorized to be appointed by this section may, if the parties interested and such corporation so desire it, act as arbitrators to settle the same in such manner and with such result as the law provides in other cases of arbitration. The commissioners appointed under this section shall receive $3 per day for their services, to be paid by such corporation, except that, after the rates have been fixed, any subsequent commission shall be paid by the party asking it.
Such corporation shall have a lien on all sawlogs and other timber and lumber thus boomed for the payment of all tolls for booming, until the same shall be paid.
If any timber shall have been boomed securely, as aforesaid, and no person shall appear to claim the same, and pay the tolls thereon, within ninety days, it shall be lawful for the corporation, after advertising the same as hereinafter provided, reciting the marks, if any, to make application to any justice of the peace of such county, whose duty it shall be, upon proper proof of the publication of such notice, to direct a sale of such timber, and designate some officer or other person to make such sale, either by public auction or by private sale, as to the justice shall seem most advantageous to the parties interested; and at any time within a year from such sale, the owner shall be entitled to receive the proceeds thereof, after deducting the toll and expenses; but if not claimed within one year, the proceeds shall inure to and be vested in the general school fund. Such advertisement shall be published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county in which such boom or booms are located.
Where several companies are operating on the same stream, the upper companies shall pass free of charge through or around their booms, with as little delay as possible, all logs, lumber, etc., distinctly marked as belonging to or in care of the boom or booms below them.
If any person or persons shall wilfully and maliciously injure or destroy any of such booms or piers or other works connected therewith, or shall remove, alter or deface any mark or marks on any logs or other timber intended for such boom, he shall pay treble damages, to be recovered by an action brought in the name of such corporation, before a justice or any of the courts of the county having jurisdiction in which he or they shall reside, or in the county in which the offense was committed; and such person or persons so offending shall also be guilty of a misdemeanor, and, upon conviction thereof, may be fined not exceeding $100 or confined in the county jail not exceeding twelve months, or both, in the discretion of the court.
If the parties interested shall not agree as to the measurement of the timber in such boom, it shall be done by commissioners, appointed by the circuit court or the judge thereof in vacation, of the county in which such boom is located; or the same may be measured, if the parties so desire it, by the commissioners authorized to be appointed by section two of this article; the expenses of such commission, in either case, shall be paid by the party in error as to the measurement, and if both parties shall be found to be in error, such expenses shall be paid by them equally.
If any logs, timber, or other lumber, while floating down any stream, be lodged upon any improved lands or inclosure of another, it shall be the duty of the owner to cause the same to be removed therefrom within sixty days from the time such logs, timber or lumber is lodged. If any person shall, without the authority of the owner, during such sixty days, take, carry away, injure or destroy, or convert to his own use any of such logs, timber or lumber, he shall be guilty of a misdemeanor, and, upon conviction, fined not more than $100, and, at the discretion of the court, be imprisoned not more than ninety days. The owner of such timber shall be liable to the owner of the land for any damages sustained by him by reason of such logs, timber or lumber lodging or remaining thereon.
If the owner of logs or other lumber placed in a stream above a boom erected thereon shall unreasonably delay driving such logs or lumber into such boom, so that persons wishing to use such stream for driving or floating logs or other lumber into such boom shall be compelled to drive such logs or lumber into the boom; or break any jam, to enable such person so to use such stream, the reasonable expenses of driving or floating such logs or other lumber, or breaking such jam, shall be borne by the owner of such logs or other lumber so obstructing such stream, to be recovered before a justice of the peace or other judicial tribunal having jurisdiction, and shall constitute a lien on such logs or other lumber until the same shall be paid.
Such corporation shall be liable for all logs, timber and other floatables which may come into its boom, except when they sink in deep water, or are carried away by unusually high water, or are destroyed by fire, not caused by the negligence of such corporation, its agents or employees.
Wherever the words "logs or timber" occur in this article, they shall be taken to mean logs and timber of every kind and description manufactured or unmanufactured.
Nothing in this article shall be so construed as to deprive the owners of mill property, and other proprietors on such river and branches thereof from recovering damages for injury to their property by such corporation, their agents or employees.
Before the persons driving logs shall put their logs in any of such streams for the purpose of driving them, they shall file a memorandum with the clerk of the county court wherein such logs are, stating distinctly the brand or marks of such persons; and unless these requirements are complied with, such corporation shall in no manner be held liable for any loss occasioned by the loss of such logs.
No company incorporated under the provisions of this article shall so exercise its corporate privileges, as to materially obstruct any public road or ford across any stream.