City of New Whatcom v. Fairhaven Land Co.

• Court: United States State Supreme Court of Washington
• Writing for the Court: WHITE, J. [24 Wash. 514] DUNBAR, J.
• Citation: 24 Wash. 493,64 P. 735
• Parties: CITY OF NEW WHATCOM v. FAIRHAVEN LAND CO.
• Decision Date: 08 April 1901

64 P. 735

24 Wash. 493

CITY OF NEW WHATCOM
v.
FAIRHAVEN LAND CO.

Supreme Court of Washington

April 8, 1901

Appeal from superior court, Whatcom county; J. P. Houser, Judge.

Action by the Fairhaven Land Company against the city of New Whatcom and the Bellingham Bay Water Company. From a judgment for plaintiff, defendant city appeals. Modified.

C. H. Hurlbut, T. E. Cade, and O. B. Barbo, for appellant.

Kerr & McCord, for respondent.

WHITE, J.

This action was originally instituted in the district court of the territory of Washington on the 8th day of August, 1889, by the Fairhaven Land Company, as plaintiff, against the Bellingham Bay Water Company, [24 Wash. 494] as defendant. The object of the action was to restrain and enjoin the Bellingham Bay Water Company, as a private corporation engaged in the business of supplying the inhabitants of the town of Whatcom with water for general domestic and municipal [64 P. 736] use, from diverting the waters of Whatcom creek from its natural bed for that purpose. Whatcom creek is the only outlet of Lake Whatcom, and flows from said lake, which is situated about three miles to the southeastward of its outlet, in a fixed and well-defined channel, and has a fall from the lake of 318 feet, and is not in any sense a navigable stream. Lake Whatcom is the source of Whatcom creek, and is a large, navigable, fresh-water lake, with an area of about 7 1/2 miles, or about 5,000 acres, and is a meandered lake. Whatcom creek empties into Bellingham Bay, a part of Puget Sound. In the descent of the creek to Bellingham Bay there are a series of falls, the last of which is about 25 feet in height, and the bottom of which is on a level with the tidal waters of Bellingham Bay. This last waterfall is immediately below a milldam used by the plaintiff in propelling a sawmill. There is a constant flow of water through the channel of the creek, which varies with the seasons. The capacity of the mill is about 75,000 feet of lumber per day. The natural flowage of the creek, undiminished by any diversion, is insufficient during the dry season of each year to operate the mill all the time. During the rainy season the flow of water through the creek aggregates about 100,000,000 of gallons per day, and during the dry season the average flowage is from 5,000,000 to 8,000,000 gallons per day. To operate the sawmill and the water wheels connected therewith, about 2,500,000 gallons per hour is required. In 1853 one Russell V. Peabody entered, under what is known as the 'Donation Act,' a part of the N.W. [24 Wash. 495] 1/4 of the S.W. 1/4 of section 30, township 38 N., of range 3 E. The plaintiff's mill is situated on a tract of land at the mouth of Whatcom creek, which is a part of the Peabody donation claim. The plaintiff is the owner of the lands at the mouth of the creek, and is the lowest riparian owner thereon, and its lands include the bed of the creek for a distance of about one-half mile upward from where the creek empties into Bellingham Bay. In the year 1854 Peabody and others associated with him erected on the tract now owned by the plaintiff a sawmill, and operated it by water power from Whatcom creek until 1874, when the mill was burned down. In 1882 or 1883 the mill, owned by the plaintiff at the time this action was commenced, was built on plaintiff's land about 50 yards below the old mill site; the office of the new mill being about where the old mill stood. By mesne conveyances from the Peabody heirs and Peabody's associates and their grantees on the 8th day of May, 1889, the plaintiff became the owner of said mill and mill site, and has been the owner ever since. The mill built in 1882 is also propelled by water from Whatcom creek. Whatcom creek flows through the Peabody donation claim and said mill tract. Subsequent to the institution of this action the Bellingham Bay Water Company, for the purpose of supplying the people of New Whatcom with water for domestic and municipal purposes, laid its water pipes and mains upon the streets of Whatcom, and ran its mains up said Whatcom creek to a point about one-half mile from Lake Whatcom, and above the mill and lands of the plaintiff, and there connected its intake pipes and mains with the channel of said creek, and diverted therefrom the water supply for said city of New Whatcom. The present population of New Whatcom is about 7,000, and it is one of the growing and important cities of Puget Sound. [24 Wash. 496] In 1893, and at the time the Bellingham Bay Water Company's intake pipes were connected with and were in the channel of Whatcom creek, the city of New Whatcom purchased said water system from said water company; and thereafter the city of New Whatcom extended the water mains from where the intake pipes were located in said creek to and within Lake Whatcom proper, and located the intake pipes, which were 24 inches in diameter, about one-quarter of a mile from the outlet of the lake, the head of Whatcom creek, placing such intake pipes about 6 feet below the bed of the creek at its source in the lake, and ever since has maintained said water system, and since such extension of the mains the water supply of New Whatcom has been taken directly from Lake Whatcom, and from no other source whatever. Said lake is the only practical source of water supply for the city of New Whatcom, and each year the necessities of the public and of the inhabitants of the city for supply of water is becoming more important and exacting. The city of New Whatcom has also entered into various contracts and leases with various of its citizens and inhabitants, by which it agreed to furnish and is furnishing such parties, through its water mains, water from Lake Whatcom for power purposes, to enable such parties to operate mills, printing presses, feed mills, electric light plants, and various other machinery, and to supply docks, steamers, coal bunkers, etc. The water is also used by the city in operating public fountains and for public buildings, and in flushing sewers, etc. After New Whatcom purchased said system an amended complaint was filed in this action, and the city of New Whatcom was made a party defendant, and the action was discontinued against the Bellingham Bay Water Company, and the city of New Whatcom was substituted for the Bellingham Bay Water Company as [24 Wash. 497] the sole defendant. Neither the Bellingham Bay Water Company nor the city of New Whatcom at any time instituted any action to condemn, nor have they at any time condemned, plaintiff's property, nor have they taken any action to secure the right to divert the waters of said Whatcom creek or of said Lake Whatcom of public or private use or for any other purpose, nor have they in any manner settled or attempted to settle or adjust any damages that piaintiff [64 P. 737] has or may suffer by reason of the diversion of said water. The Bellingham Bay Water Company, by lease or otherwise, was the riparian owner of the bed of said creek near the source thereof above the lands and mill site of the plaintiff at the time it put in its water system, and continued so up to the date of the sale of its system to New Whatcom, and the city of New Whatcom succeeded to whatever rights the water company had as such riparian owner; and the water company was a riparian owner on said creek above plaintiff prior to the date of the plaintiff's purchase of the mill and mill tract, and that fact was known to the plaintiff when it purchased. The city of New Whatcom has become the successor of the water company in supplying its inhabitants with water, and the value and use of the water system depend almost wholly upon a source of supply from said lake. If the supply was shut off the entire plant would be rendered valueless, and the people of the city would be greatly injured, and the public health might be endangered. The city of New Whatcom is situated on both sides of the creek, the full length of the creek from its source, taking in a part of Lake Whatcom and to its outlet. Streets and alleys are located and run across, parallel to, and upon the banks and bed of the creek; and the city of New Whatcom is the owner of property on the shores of the lake and in the bed of the creek at its source, and is a riparian owner [24 Wash. 498] on the lake and creek. By constructing a dam at the head of the creek at the foot of the lake the surplus water of the lake during the winter or wet seasons can be stored or retained until the dry weather approaches, and can be used during the summer to keep up and maintain the full natural flowage of the creek during the entire season. It is manifest from the evidence and findings in the case that by reason of the intake pipes of the water system being laid in Lake Whatcom, and the water drawn off thereby, the natural flowage of Whatcom creek is greatly diminished, and that by reason thereof there is not sufficient water at certain seasons of the year to operate the plaintiff's mill as the plaintiff might operate it but for the diversion of the water through the intake pipes of the defendant. The court below held that the diversion of any of the waters from Lake Whatcom, under the water system of the defendant, for the purpose of supplying water and power to the various light plants, wood yards, printing offices, etc., was in violation of the rights of the plaintiff, and that the plaintiff being the lowest riparian owner on the creek, and having appropriated the flowage thereof for mill purposes long prior to the attempted diversion of any of the waters of said creek, or of Lake Whatcom, the source of said creek, by the defendant or the water company, such diversion by the defendant was in violation of the rights of the plaintiff; and the court gave to the plaintiff a perpetual injunction against the city of New Whatcom, enjoining and restraining it from diverting any of the waters of said creek, or the waters of said lake, the source of said creek,...