Alexander v. Muenscher, 28071.
| Decision Date | 25 February 1941 |
| Docket Number | 28071. |
| Citation | 7 Wn.2d 557,110 P.2d 625 |
| Parties | ALEXANDER et al. v. MUENSCHER. |
| Court | Washington Supreme Court |
Department 1.
Action by Joe Alexander and others against Frank Muenscher to enjoin the defendant from diverting waters from a water course. From an adverse decree, defendant appeals.
Decree reversed and cause remanded as to plaintiffs Lloyd Cline William Scholten and D. McKay, with direction to dismiss the action as to them, and decree affirmed as to plaintiff Joe Alexander.
Appeal from Superior Court, Whatcom County; Ralph O. Olson, judge.
Loomis Baldrey, of Bellingham, for appellant.
Bixby & Pemberton, of Bellingham, for respondents.
This action was brought seeking an injunction to prevent the defendant from diverting waters from what is alleged to be a water course. To the amended complaint which will be referred to as the complaint, a demurrer was interposed, based upon a number of grounds one of which was that the plaintiffs had no capacity to sue. After the action had been instituted, a temporary injunction was issued. The trial was to the court without a jury, and at the conclusion of the evidence and Before the argument of counsel, the court, accompanied by the parties to the action and their respective attorneys, went upon the ground to view the water course. After argument, the court made findings of fact from which it was concluded that the plaintiffs were entitled to the relief sought. By the decree entered, the defendant was permanently enjoined from diverting the waters which were in issue, and from this decree the defendant appealed.
The appellant owned a tract of land in Whatcom county. Immediately to the east of this, the respondent Joe Alexander owned another tract, and, east of the Alexander land, two of the other respondents owned land upon which they resided, and one of them occupied land under a lease. According to the evidence offered by the respondents, there was a water course starting near the center of the northern boundary of the appellant's land and extending in a southeasterly direction to the dividing line between his land and the Alexander land and passing over onto the Alexander land for a short distance, and then the channel does not extend any farther, but the water forms a swamp to the south. After the water passes through the swamp, it returns to the land of the appellant in a well-defined channel.
About the year 1931, the respondents constructed a ditch, starting at the end of the water course upon the Alexander land, which extended east and passed through the land of each of the other respondents. After extending east some distance, this ditch turned to the south, and then returned to the west or southwest, and by another stream the water was conducted back to the land of the appellant, but some distance to the south of where the channel from the swamp discharged the water upon this land.
Shortly Before this action was begun, the appellant constructed a ditch extending south from the water course which crossed his land and passed onto the Alexander land, by which the flow of the water was diverted from the land of the latter. With the exception of the Alexander land, none of the land of the other respondents was riparian to the water course.
The appellant's evidence was to the effect that there was no water course upon his land, but that the water that passed over onto the Alexander land was surface water. The respondent's evidence was to the effect that there was a well-defined water course on the appellant's land which carried the water over onto the Alexander land. Upon this conflicting evidence and after viewing the premises, the trial court made a finding to the effect that there was, and had been, a natural water course, being an unnavigable stream '* * * running from approximately the center of the north boundary of the defendant's [appellant's] property in a southeasterly direction where it crosses the property lane of the defendand Muenscher and the plaintiff Alexander; that the said stream of water is fed by springs and has always had a constant flow.'
Surface waters are produced by rain, melting snow, or springs. Le Brun v. Richards, 210 Cal. 308, 291 P. 825, 72 A.L.R 336; Nathanson v. Wagner, 118 N.J.Eq. 390, 179 A 466. Other cases might be cited, but there is no dispute as to what constitutes surface waters. Such waters may be said to form a water course at a point...
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