City of Raymond v. Willapa Power Co.

• Decision Date: 09 May 1918
• Docket Number: 14003.
• Citation: 102 Wash. 278,172 P. 1176
• Court: Washington Supreme Court
• Parties: CITY OF RAYMOND v. WILLAPA POWER CO.

172 P. 1176

102 Wash. 278

CITY OF RAYMOND v. WILLAPA POWER CO.

No. 14003.

Supreme Court of Washington, En Banc.

May 9, 1918

On rehearing. Judgment affirmed.

For former opinion, see 98 Wash. 317, 167 P. 914.

Fullerton Mount, and Main, JJ., dissenting.

WEBSTER J.

This case was originally heard and decided in Department 2. After the opinion was filed, which may be found in 98 Wash. 317 167 P. 914, a petition for a rehearing was granted, and the case was thereafter considered by the whole court. The facts which are fully set forth in the departmental opinion, are correct, with the exception that the court was in error in stating that the water to be diverted by respondent's dam for power purposes would be returned to the stream at a point above the city's contemplated intake pipes. By reference to the blueprint or map which was filed as an exhibit in the case, as well as to the findings of the trial court, we ascertain that the power dam of respondent in section 6 is several miles below the intake dam which appellant contemplates construction in section 19, and the water diverted with be returned to the stream about 900 feet below respondent's dam. All of the judges agree that a proper solution of the questions presented depends upon the nature of the rights acquired by appellant under the deed from the Raymond Water Company; the respondent contending that the instrument conveyed an easement only, while appellant insists that it acquired the absolute ownership of the water itself. In the former opinion it was held that:

'It is a grant of the water itself, conveying to the grantee all of the title and interest therein, in so far as the title was vested in the grantor by reason of the ownership of the fee of the land. As against the grantor, the grantee can, under the terms of the grant, divert the water from the stream prior to the time it reaches the land, can divert it at any point upon the lands, and may, by dams or other obstructions, cause it to overflow, flood, or back upon the lands, or it may, as a matter of right, insist that it continue to flow thereover as it is wont to flow by nature, free from molestation by any one.'

A majority of the court are of the opinion that in thus construing the deed the department was in error; our present view being that the deed conveyed to appellant merely an easement for the purposes therein stated. The granting clause of the deed, in so far as it relates to the property here involved, reads:

'Also giving and granting unto the party of the second part, its successors and assigns, the exclusive right and privilege to take and appropriate to its own use for any and all purposes any or all of the water flowing, or which may hereafter flow, into the south fork of the Willapa river or any of the tributaries of said river, over, across or through the following described real estate. [Here follows a description of the property.] Also giving, granting and conveying unto the party of the second part, its successors and assigns forever, the right to enter upon the said lands above described or any part thereof for the purpose of taking and appropriating said water or any part thereof, and for the purpose of laying and constructing flumes and pipe lines or both and for the purpose of repairing, relaying or renewing said pipe lines so as to convey and conduct said water from said lands in such manner and by such means as the second party, its successors and assigns, may deem advisable. Also giving and granting unto the party of the second part the sole and exclusive right and privilege to overflow, flood, or back water upon all that part of the above-described real estate.'

Thus it will be seen the deed does not purport to convey to appellant title to the land itself, nor the right to erect a dam thereon. The extent of the privilege granted is to take and appropriate the water, to enter upon the lands for the purpose of laying and constructing pipes and flumes thereon, with the right to repair, relay, or renew the same as necessity may require, also the privilege of flooding or backing water upon the premises.

Prior to the execution of the deed to appellant the Raymond Water Company had never used or appropriated the water for any purpose; its right thereto being merely that of a riparian owner. No title to the water itself passed by the deed, which by its terms merely granted the privilege of taking and appropriating the water and performing certain acts essential to the accomplishment of such purpose. Crook v. Hewitt, 4 Wash. 749, 31 P. 28; Rigney v. Tacoma L. & W. Co., 9 Wash. 576, 38 P. 147, 26 L. R. A. 425; Benton v. Johncox, 17 Wash. 277, 49 P. 495, 39 L. R. A. 107, 61 Am. St. Rep. 912; New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 64 P. 735, 54 L. R. A. 190; Still v. Palouse Irr. & Pow. Co., 64 Wash. 606, 117 P. 466; Saunders v. Bluefield Waterworks & Imp. Co. (C. C.) 58 F. 133; 2 Kinney on Irrigation and Water Rights (2d Ed.) § 772; 40 Cyc. 552.

Holding as we do that the right acquired by appellant under the deed was merely an easement to take and appropriate the water, it follows that the owner of the servient estate may make such use of it as is not incompatible or inconsistent with the easement granted. Hayward v. Mason, 54 Wash. 649, 104 P. 139; Burnham v. Nevins, 144 Mass. 88, 10 N.E. 494, 59 Am. Rep. 61; Colegrove Water Co. v. Hollywood, 151 Cal. 425, 90 P. 1053, 13 L. R. A. (N. S.) 904; Hoyt v. Hart, 149 Cal. 722, 87 P. 569; St. Joseph River Valley Co. v. Galligan, 120 Mich. 468, 79 N.W. 685; Smith Canal Co. v. Col. Ice & Storage Co., 34 Colo. 485, 82 P. 940, 3 L. R. A. (N. S.) 1148.

Since the respondent acquired all the right and title to the property, subject only to the easement conveyed by the prior deed to appellant, it may devote the property to any use it may see fit which is not inconsistent with the easement granted. It is not contended that appellant's right to take and appropriate the water is being interfered with or threatened; the theory of appellant's case being that it is the absolute owner of the water, and that respondent's present and contemplated use of the same constitutes a continuous or repeated trespass which will be enjoined in equity. Moreover the decree of the lower court in express terms provides:

'This action

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