City of Walla Walla v. Dement Bros. Co.

• Decision Date: 10 February 1912
• Citation: 67 Wash. 186,121 P. 63
• Court: Washington Supreme Court
• Parties: CITY OF WALLA WALLA v. DEMENT BROS. CO.

121 P. 63

67 Wash. 186

CITY OF WALLA WALLA v. DEMENT BROS. CO.

Supreme Court of Washington

February 10, 1912

Department 1. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Action by the City of Walla Walla against the Dement Brothers Company. From a judgment for plaintiff, defendant appeals. Affirmed.

T. P. &amp C. C. Gose, for appellant.

Sharpstein & Sharpstein, Jno. F. Watson, and J. W. Brooks, for respondent.

PARKER J.

This is an eminent domain proceeding prosecuted by the city of Walla Walla for the purpose of acquiring the right to take water from a stream, which will result in damage to the riparian and water power rights of the defendant, Dement Bros Company. A trial before the court and a jury for the purpose of determining the amount of the defendant's damage resulted in a verdict assessing the same at $10,000. Judgment was rendered accordingly, from which the defendant has appealed.

Appellant owns land situated near the corporate boundaries of the city of Walla Walla in connection with which it has riparian rights in the water flowing in Mill creek. Appellant also owns a mill situated upon this land, which is operated by power obtained from the flow in Mill creek. The city seeks to acquire the right to take and divert, of the water of Mill creek, 22 cubic feet per second of time, at a point some 13 miles above appellant's property, for the purpose of supplying the city and its inhabitants with water through its waterworks. Some three miles above appellant's property the Yellowhawk creek has its intake from Mill creek, at which point the waters of Mill creek divide; 40 per cent. thereof flowing into and down Yellowhawk creek and 60 per cent thereof flowing on down Mill creek. It is conceded that the owners of riparian land bordering upon each of these creeks below this point are entitled to have the waters flow therein in this proportion. Along these creeks below the point of diversion of the water taken by the city, there are numerous riparian landowners having right to the use of the water flowing therein for irrigation and other purpose, and a considerable quantity of such water is so used by such riparian owners. It does not appear that the riparian and power rights of appellant in the water of Mill creek are superior to that of these riparian owners.

In order to intelligently discuss the contentions of counsel for appellant, it is necessary that we have at the outset a clear understanding of what the city is acquiring from appellant. If the city is actually taking from the appellant alone the whole of the 22 cubic feet of water per second, that is one proposition; but if, by the city taking the water from the creek some 13 miles above appellant's property, appellant does not lose 22 cubic feet per second, to which it is entitled, that is quite another proposition. Counsel for appellant seem to proceed upon the assumption that the first proposition presents the correct theory for measuring its damages; while counsel for the city insist upon the right to prove that appellant will not lose 22 cubic feet of water, to which it is entitled, by such diversion--that is, that all of the water so taken and diverted by the city is not water to which appellant has a legal right, or water all of which would reach appellant's land in any event if the city took none of it. This proceeding is authorized by Ordinance 1,509 by the city, a copy of which is attached to and made a part of its petition for condemnation, wherein the rights sought to be acquired by the city against appellant are specified as follows:

'The city of Walla Walla does ordain as follows:

'Section 1. That the use of the waters of Mill creek to the extent of twenty-two cubic feet per second to be taken, diverted, and measured at the head works of the city water system located on said creek about 13 miles easterly from this city is a public necessity.

'Sec. 2. That all the right, title and interest of the Dement Brothers Company, a corporation, as riparian owners of lands abuting on said Mill creek, and such waterpower rights as they may have in said stream, to the amount and extent specified in section 1 of this ordinance, are hereby ordered and directed to be condemned and the title thereto acquired by the city of Walla Walla in the manner provided by law, and that the proper proceedings therefor be taken forthwith.'

The final judgment of condemnation and award of damages defines the right acquired by the city as follows: 'It is considered, ordered, and adjudged by the court that, upon the verdict of the said jury, the plaintiff, the city of Walla Walla, is hereby adjudged and determined to be entitled, upon the payment to the defendant of the said sum of $10,000 so awarded by the verdict of said jury and the further sum of $95.45, the defendant's costs taxed and allowed in this action, to take, divert, and use water from that certain stream known as Mill creek, in Walla Walla county, state of Washington, to the extent of 22...