Colburn v. Winchell

• Decision Date: 19 June 1917
• Docket Number: 13290.
• Court: Washington Supreme Court
• Parties: COLBURN v. WINCHELL.

165 P. 1078

97 Wash. 27

COLBURN v. WINCHELL.

No. 13290.

Supreme Court of Washington

June 19, 1917

Department 2. Appeal from Superior Court, Klickitat County; R. H. Back Judge.

On rehearing. Reversed and remanded for dismissal.

For former opinion, see 160 P. 1052.

Geo. F Felts, of Portland, Or., and I. N. Smith, of Wallace, Idaho for appellant.

N. B Brooks, of Goldendale, for respondent.

MAIN J.

After the opinion in this case had been filed (160 P. 1052), both parties presented petitions for rehearing. In the petition of the defendant and cross-appellant, our attention is called to an error in the statement of facts in the original opinion. It was there stated that the title to the land from which the appropriation of the water was made was in the federal government at the time of the appropriation. This was incorrect. It should have been stated that, at the time the appropriation was made, the land, which was crossed by the nonnavigable stream out of which the water was taken, was held by the state for the purpose of a scientific school. In the year 1895, the federal government granted to the state, together with other lands, the S.E. 1/4 of section 11, township 4 N., range 10 E., W. M. Across this land flowed a nonnavigable stream, known as 'Old Logging Camp creek.' During the year 1903 the then owner of the N.W. 1/4 of section 13 of the same township and range went upon section 11 and attempted to appropriate the water of Old Logging Camp creek for irrigation purposes, to be used upon section 13--nonriparian land.

This corrected statement of facts presents a question which was not decided in the original opinion, and that question is whether a nonriparian owner may appropriate water from a nonnavigable stream upon state land, which had been granted to the state for the establishment and maintenance of a scientific school. In Benton v. Johncox, 17 Wash. 277, 49 P. 495, 39 L. R. A. 107, 61 Am. St. Rep. 912, it is held that the right of a riparian owner to the waters of a nonnavigable stream is an incident to his estate, and is considered a part of the soil. It was there said:

'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 stone scattered over it.'

In Bernot v. Morrison, 81 Wash. 538, 143 P. 104 Ann. Cas. 1916D, 290, it was said:

'We hold that the common law, as declared by the Supreme Court of the United States, so far as all unnavigable waters, whether in streams or lakes, are concerned, that is to say, waters not actually navigable, is the common law and rule of decision in this state. We know of nothing in the character of our institutions or in the state of our society militating against its application to all such waters. The declaration in our Constitution (section 1 of article 21) that 'the use of the waters of the state for irrigation, mining and manufacturing purposes shall be deemed a public use' was never intended to destroy riparian rights in unnavigable waters.'

Therefore, under the law of this state, the waters of a nonnavigable stream are held to be a part and parcel of the soil over which it flows. Section 11 of the Enabling Act (Act Cong. Feb. 22, 1889, c. 180, 25 Stat. 676) provides that all lands 'herein granted for educational purposes' shall be disposed of only at public sale, and at a price of not less than $10 per acre. In section 17 of that act there is granted to the state of Washington, 'for the establishment and maintenance of a scientific school, one hundred thousand acres [of land]. *...