Bernot v. Morrison

• Decision Date: 17 September 1914
• Docket Number: 11090.
• Parties: BERNOT v. MORRISON et al.
• Court: Washington Supreme Court

143 P. 104

81 Wash. 538

BERNOT v. MORRISON et al.

No. 11090.

Supreme Court of Washington

September 17, 1914

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Hemeke Judge.

Action by John Bernot against Peter Morrison and another, in which the State intervened. From a judgment sustaining demurrers to plaintiff's complaint and to the State's complaint in intervention, plaintiff and the State appeal. Affirmed.

W. C. Jones, M. Wicks, Chas. M. Chamberlain, and E. B. Quackenbush, all of Spokane, and W. V. Tanner and R. E Campbell, both of Olympia, for appellants.

Reese H. Voorhees, of Spokane, for respondent.

ELLIS J.

For a statement of the controversy leading up to this litigation and the facts as to the character and condition of the lake involved, reference is made to the opinion of this court in Morrison v. Bernot, 58 Wash. 302, 108 P. 772. After that action was dismissed, the plaintiff brought the present action to enjoin the defendants, littoral proprietors, from interfering with him in the prosecution of his plan for using the bed of the lake as a storage basin for water for irrigating his nonlittoral lands. The state of Washington intervened, claiming to own the bed of the lake, and praying that its title be quieted. The court sustained demurrers both to the plaintiff's complaint and the state's complaint in intervention. The plaintiff and the state, as intervener, have appealed. We shall refer to the parties throughout as plaintiff, intervener, and defendant.

Omitting caption, conclusion, and prayer, the plaintiff's complaint alleges:

'(1) That Saltese Lake is a natural body of fresh water situate in Spokane county, of about 1,400 acres in extent, as surveyed and meandered by the government of the United States about the year 1879, when the public lands of the United States, upon which it was situated, were surveyed, and constitutes a natural reservoir for the storage of water for the purpose of irrigation, manufacture, or mining, and, before such surveys were made, it had been set apart and appropriated by the government of the United States by an act of Congress of date March 3, 1877, for such purposes, and ever since has been so set aside and dedicated by said act of Congress and by the laws of the territory and state of Washington, to such uses, and has always been open to appropriation by the citizens of the territory and state of Washington for such purposes.

'(2) That plaintiff is, and at all times hereinafter mentioned was, a citizen of the United States, and for more than six years last past has been and now is a resident and citizen of the state of Washington, and for a long time prior to the 17th day of April, 1908, was the owner of the S.E. 1/4 of section 19, township 25, range 45 E. W. M., in the county of Spokane, through which the natural outlet of said Saltese Lake runs, as more particularly appears from a plat of said lake, a copy of which is hereto attached and marked Exhibit A, and ever since said date, plaintiff has been and now is the owner of a strip of land 100 feet wide running through the property above described, which strip of land was reserved by plaintiff for a right of way for a ditch to convey water from said Saltese Lake and its natural outlet onto lands lying below said right of way. That on, to wit, the 19th day of February, 1908, this plaintiff, pursuant to the laws of the state of Washington, duly appropriated the waters of said lake and stream flowing therefrom to the extent 200 cubic feet of water per second of time, duly appropriated the right to use of said lake as a storage basin for water, to be so used by him for irrigation, and duly caused a good and sufficient notice of said appropriation to be posted as required by law, and thereafter to be recorded in the office of the county auditor of Spokane county, as required by law.

'(3) That thereafter, and on, to wit, the 28th day of March, 1908, in action wherein the above-named defendants, together with Agnes Morrison, wife of Peter Morrison, and Fanny C. Pugh, wife of Felix M. Pugh, were plaintiffs, and this plaintiff was defendant, by its order duly made, enjoined, and restrained this plaintiff from constructing a dam across said outlet for the purpose of availing himself of the rights acquired by such appropriation, and from proceeding with the work required by law in order to hold and enjoy the rights so acquired.

'(4) That hereafter said court, on the motion and at the instance of said plaintiffs in said cause, two of whom are defendants in this cause, by its order made and entered on the 22d day of May, 1909, dismissed said cause on all things and dissolved said injunction. That on, to wit, the 15th day of April, 1909, this plaintiff, in pursuance of the statute in said case made and provided, and in compliance with the laws of the state of Washington, relative to the appropriation of water for irrigation and other purposes, proceeded to construct a dam across the outlet of said lake and to fill up the ditch which these defendants and others had unlawfully dug and are unlawfully maintaining, the object, purpose, and effect of which ditch is to drain said lake and destroy its value for the purpose of irrigation and uses for which it has been set aside and dedicated by the act of Congress heretofore referred to, and laws of the territory and state of Washington.

'(5) That, while the plaintiff was so engaged in constructing said dam and carrying out the purpose for which he had appropriated the waters of said stream and lake, these defendants, together with a large number of men, all of whom plaintiff is advised and believes were the agents and servants of said defendants, with force and arms destroyed plaintiff's said dam and all the work he had done in pursuance of law for appropriation of the waters of said lake, and threatened by force to prevent plaintiff from continuing his improvements or the work required by law to preserve his appropriation of water, or to construct said dam or any dam across the outlet of said lake, and prevent him from doing any act to preserve and protect the rights acquired by him by virtue of such appropriation.

'(6) That the rights acquired by the plaintiff by right of such appropriation are of great value, and, when completed, will enable him to carry water upon a very large area, to wit, about 1,000 acres of land lying below said dam and ditch, which land is now of little value and, when supplied with water from plaintiff's ditch, will be of great value.'

The parts italicized were stricken on motion, and a demurrer sustained as to the balance.

The intervener's second amended complaint in intervention, omitting caption and prayer, is as follows:

'(1) That Saltese Lake is a

nonnavigable body of fresh water situated in townships 24 and 25 north, range 45 east of the Willamette meridian in Spokane county, Wash., and containing about 1,400 acres, as surveyed and meandered by the government of the United States during the years 1877-78.

'(2) The state of Washington, the intervener herein, is the owner and entitled to the possession of the waters and bed of said lake as it existed at the time of the survey thereof, and has been the owner and entitled to the possession of said premises ever since the admission of said state into the Union on November 11, 1889.

'(3) That the plaintiff and defendants herein are wrongfully asserting some right, title, and interest in and to the bed of said lake, and are wrongfully withholding the same from the intervener herein.'

The original complaint in intervention contained no allegation as to the character of the lake, whether navigable or unnavigable. On motion to make more specific in that respect, the intervener elected to plead the actual fact that the lake was not navigable.

The claim that this was the initial error we shall dispose of at once. It is manifest that as a matter of fact the lake was either navigable or not navigable. Even if, as asserted, the intervener might claim the bed of the lake because of either condition, it could not at the same time claim because of both. The two conditions could not exist at the same time. Both, therefore, could not be pleaded and asserted as a basis of title at the same time. The truth of one would establish the falsity of the other. To plead both would violate the rule of the Code that the complaint shall contain a plain and concise statement of facts constituting a cause of action. Pleading contradictory facts can hardly be termed a plain and concise statement of any fact, though either fact might support the action. Seattle National Bank v. Carter, 13 Wash. 281, 43 P. 331, 48 L. R. A. 177. It is obvious that this is true whether the allegation be express that the lake was both navigable and unnavigable, or inferential to the same effect, or uncertain in failing to allege either. The defendants, therefore, were entitled to a plain and concise statement of the one condition or the other. The case of Hutchinson v. Mt. Vernon Water & Power Co., 49 Wash. 469, 95 P. 1023, chiefly relied upon by intervener in this connection, is inapposite. There the facts in support of the plaintiff's title as pleaded were three: Riparian ownership, appropriation, and contract. All were specifically pleaded. All could exist at the same time as actual facts cumulating to the one result: Title in the plaintiff. Neither tended to contradict the other. In such a case it was, of course, error to compel an election. It would be unreasonable to require an abandonment of any facts tending to the same result and wholly consistent with the other facts pleaded.

The one dominant question in this case is this: Who owns the bed of Saltese Lake, the state of Washington, the United States, or the proprietors of...