Avery v. Johnson

• Decision Date: 13 July 1910
• Citation: 59 Wash. 332,109 P. 1028
• Parties: AVERY et al. v. JOHNSON et ux.
• Court: Washington Supreme Court

109 P. 1028

59 Wash. 332

AVERY et al. v. JOHNSON et ux.

Supreme Court of Washington

July 13, 1910

Department 1. Appeal from Superior Court, Okanogan County; E. W. Taylor Judge.

Action by A. H. Avery and others against Loritz Johnson and wife. From a judgment for defendants, plaintiffs appeal. Reversed and remanded, with directions.

Alvin W. Barry, for appellants.

E Fitzgerald, for respondents.

CHADWICK J.

The south half of the Colville Indian reservation was opened to settlement on October 10, 1900. At that time one Georgie A Warren made homestead entry of a certain 160 -acre tract of land riparian to Antoine creek, a small stream flowing from the northeast into the Okanogan river. At about the same time, C. C. Kloppenstein made homestead entry of a 160-acre tract lying east of the Warren entry. The lands in their natural state were semiarid and incapable of producing crops without irrigation, but with irrigation the lands were capable of producing fruit, hay, and like products in great abundance. The plaintiffs Fruit succeeded to the rights of Warren, and plaintiff Avery to the rights of Kloppenstein. Both of the original entrymen and their successors, these plaintiffs, began and have continued with reasonable diligence to irrigate their lands, and they have from year to year increased the cultivated and irrigated area, so that there are now on the Warren entry about 115 acres in cultivation, and on the Kloppenstein tract about 54 acres, put to profitable uses by irrigation from the waters of Antoine creek. The full flow of the creek does not exceed 3 1/2 cubic feet per second from June to September, and in the extreme dry season does not exceed 2 1/2 feet, and it is shown, we think, by the testimony of both sides, that this is not more than enough to successfully irrigate the lands of the plaintiffs. In 1901 George Rice made homestead entry of 160 acres above the Kloppenstein lands. He cleaned out an old irrigation ditch, which had been used by some squatter or squawman prior to the time the reservation was opened, but did not put the water to any beneficial use. In 1902 Rice relinquished to one Crosby. Crosby never made any entry of the lands, being content, so far as the record shows, to remain a squatter until he could dispose of his 'right,' which he did in the fall of 1904, to the defendants, who made settlement in November of that year, and have since complied with the homestead laws and now own the land. The testimony differs as to the amount of land irrigated by defendants. They say about 20 acres in 1905, and increasing until at the present time the irrigated tract runs from 35 to 40 acres; while the plaintiffs' evidence would indicate that the present irrigated area does not exceed 23 acres, including seven or eight acres on some 'scrip' land lying further up the creek. The court made a decree, dividing the use of the waters of the creek between all the parties, and plaintiffs have appealed.

The court found, and we think properly, that no right of appropriation in any of the parties could antedate the opening of the reservation to settlement; and for the same reasons it would follow that no right could antedate an actual bona fide settlement upon contiguous lands, capable of being irrigated by the waters of the stream. Hence, no rights would attach to respondents' land by reason of the fact that a squatter or squawman took out ditches some years before the reservation was opened, and none could attach by reason of Rice's homestead entry, or, if they did, they were lost by Crosby...