Benton v. Johncox

• Decision Date: 02 July 1897
• Citation: 17 Wash. 277,49 P. 495
• Parties: BENTON ET AL. v. JOHNCOX ET AL. [1]
• Court: Washington Supreme Court

49 P. 495

17 Wash. 277

BENTON ET AL. v. JOHNCOX ET AL. ^[1]

Supreme Court of Washington

July 2, 1897

Appeal from superior court, Yakima county; Sol Smith, Judge.

Action by H. M. Benton against Philip A. Johncox and others for an injunction, with which was consolidated three other cases in which similar relief was sought, and in which persons not originally parties intervened and joined the plaintiffs in claiming the relief sought. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

J. B. Reavis and I. P. Englehart, for appellants.

D. J Crowley and Whitson & Parker, for respondents.

ANDERS J.

An action was instituted in the superior court of Yakima county by the plaintiff Benton, a riparian proprietor on the Ahtanum river, in said county, to restrain certain of the appellants from diverting the waters of said stream, and conducting the same to and upon their land, situated at a distance therefrom, for the purposes of irrigation. Three separate actions were also commenced by other parties, seeking similar relief; and by stipulation of all the parties, and an order of the court, all of those causes were consolidated and tried in this action. Many riparian owners became parties by intervention, and joined the plaintiffs in claiming the relief sought by them, and the defendants in the several causes were all made defendants in the consolidated case. The complaint in each case, briefly stated, alleges riparian ownership on the part of the plaintiff, and appropriation of the water, and the date thereof, and the use of the water for irrigation, and its diversion by the defendants. Each of the nonriparian landowners alleges ownership of lands, and appropriation and use of the water for irrigation, and date of such appropriation, and the making of valuable improvements on the land. And each party to the action avers that his land, without artificial irrigation, is arid and unproductive, and prays that he may be decreed entitled to a certain specified quantity of water for the purpose of irrigating his premises. The action involves the rights of a multitude of farmers located on the banks of the river, as well as those of a great number of nonriparian landowners. The evidence preserved in the record is exceedingly voluminous, but the facts deduced therefrom and stated by the court are so satisfactory to counsel that we have been relieved of the labor of examining it in detail. Of the 91 findings of fact made by the court, none of any special importance is disputed by counsel for appellants. The trial court awarded a perpetual injunction restraining each and every of the nonriparian owners of land from diverting or interfering with the water of the river. Appellants excepted to the conclusions of law as announced by the court, and to the whole decree, as founded on erroneous conclusions of law, and here insist that the rights of all parties should be determined by this court by the application of the doctrine of appropriation, in accordance with the facts found by the superior court. It may be stated generally that the court found from the evidence the date when each party settled upon his land and took the initiatory step in the acquisition of title thereto, as well as the date at which he appropriated the water for agricultural purposes. While the court recognized the existence in this state of the doctrine of prior appropriation, it nevertheless held that the plaintiff and plaintiff interveners, who settled upon their respective lands, and acquired their title thereto by complying with the laws of the United States, and appropriated and used the water of the stream for irrigation and domestic purposes, prior to the diversion by appellants were entitled to have the stream continue to flow as it naturally flowed through or by their lands at the time their possessory rights attached. In other words, the court held that the respondents were entitled to the common-law rights of riparian proprietors, as against subsequent appropriators of the water, from the date of their occupancy, with intent to acquire the title of the government in pursuance of law. And this ruling of the trial court was not at variance with the rule repeatedly announced by this court and the territorial supreme court, except upon the question as to the date at which riparian rights become vested in lawful occupants of public land. That such rights, as well as the right of prior appropriation, have hitherto been recognized in the decisions in this state, will be disclosed by an examination of the following cases: Thorpe v. Ditch Co., 1 Wash. St. 566, 20 P. 588; Ellis v. Improvement Co., 1 Wash. St. 572, 21 P. 27; Geddis v. Parrish, 1 Wash. St. 587, 21 P. 314; Crook v. Hewitt, 4 Wash. 749, 31 P. 28; Rigney v. Water Co., 9 Wash. 576, 38 P. 147; Isaacs v. Barber, 10 Wash. 124, 38 P. 871. Nor did the legislature disregard the rights of riparian owners in the general act of 1890 relating to appropriation of water for irrigation. 1 Hill's Code, § 1718 et seq. On the contrary, sections 1761 and 1774 of that act especially recognize the existence of riparian rights, and we do not see anything in that statute or the subsequent act of 1891 evincing an intention on the part of the legislature to disregard such rights.

But it is most earnestly insisted by the learned counsel for appellants that the common-law doctrine touching riparian rights is not applicable to the arid portions of the state, and especially to Yakima county; and this court is now urged to so decide, notwithstanding anything it may heretofore have said to the contrary. The legislature of the territory of Washington in the year 1863 (Laws 1863, p. 68) enacted that "the common law of England, so far as it is not repugnant to, or inconsistent with, the constitution and laws of the United States and the organic act and laws of Washington territory, shall be the rule of decision in all the courts of this territory." The language of this provision was changed by the state legislature in 1891 by omitting the words "of England," substituting the word "state" for "territory," and inserting the clause, "nor incompatible with the institutions and condition of society in this state." Code Proc. § 108. But the meaning remains substantially the same. It thus appears that the common law must be our "rule of decision," unless this case falls within the exceptions specified in the statute. Now, the common-law doctrine declaratory of riparian rights, as now generally understood by the courts, is not, in our judgment, inconsistent with the constitution or laws of the United States or of this state. Nor is it incompatible with the condition of society in this state, unless it can be said that the right of an individual to use and enjoy his own property is incompatible with our condition,-a proposition to which, we apprehend, no one would assent for a moment. It is held by practically all the better authorities that the right of the riparian owner to the natural flow of the stream by or across his land in its accustomed channel is an incident to his estate, and passes by a grant of the land, unless specially reserved. It is not an easement in or an appurtenance to the land, but, as Angell says, is as much a part of the soil as the stones scattered over it. Ang. Watercourses, § 5.

"By the common law," says the court in Lux v. Haggin, 69 Cal. 255, 10 P. 753, "the right of the riparian proprietor to the flow of the stream is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it. The right in each extends to the natural and usual flow of all the water, unless where the quantity has been diminished as a consequence of the reasonable application of it by other riparian owners for purposes hereafter to be mentioned." And one of the purposes thereafter mentioned was irrigation. In Washburn on Easements and Servitudes (4th Ed., pp. 316, 317), the learned author says: "The right of enjoying this flow without disturbance or interruption by any other proprietor is one jure naturæ, and is an incident of property in the land, not an appurtenance to it, like the right he has to enjoy the soil itself, in its natural state, unaffected by the tortious acts of a neighboring landowner. It is an inseparable incident to the ownership of land, made by an inflexible rule of law an absolute and fixed right, and can only be lost by grant or twenty years' adverse possession." (In this state, by statute, an adverse possession for 10 years would destroy the right.) And the law on this subject is laid down by Prof. Pomeroy in language equally clear and explicit. He says: "The use of the stream, and of the water flowing through it, forms a part of the rights incident to and involved in the ownership of the lands upon its borders. This is the principle recognized by the common law, and which should be recognized by any auxiliary legislation. It is, moreover, a natural law, an inevitable fact, which no legislation can change. Any statute denying this fact simply attempts an impossibility." Pom. Rip. Rights, § 152.

While the doctrine announced by the foregoing authorities has never, so far as we are advised, been directly denied, it has been apparently ignored by the courts in some of the Pacific states and territories, on the theory that the principles and rules of the common law respecting the rights of private riparian owners were inapplicable to the condition and necessities of the people of the particular localities where the causes of action arose. Coffin v. Ditch Co., 6 Colo. 446; Drake v. Earhart (Idaho) 23 P. 542; Stowell v. Johnson (Utah) 26 [17 Wash. 283] P. 290; Mover v. Preston (Wyo.) 44 P. 845; ...