Colburn v. Winchell

• Decision Date: 18 November 1916
• Citation: 93 Wash. 388,160 P. 1052
• Court: Washington Supreme Court
• Parties: COLBURN v. WINCHELL.

160 P. 1052

93 Wash. 388

COLBURN v. WINCHELL.

Supreme Court of Washington

November 18, 1916

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

Action by C. L. Colburn against C.J. Winchell. From the judgment both parties appeal. Affirmed.

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

Brooks & Brooks, of Goldendale, for respondent.

MAIN, J.

The parties to this action are two rival claimants to the water of a non-navigable stream known as Old Logging Camp creek. The trial resulted in a judgment, giving one-half of the water to each of the parties. From this judgment both have appealed.

The facts are these: During the year 1903 the plaintiff's predecessor in interest, being the owner of the N.W. 1/4 of section 13, township 4 N., range 10 E. W. M., went upon the S.E. 1/4 of section 11, in the same township, dammed the creek, constructed a headgate or intake, and diverted the water therefrom. This water was carried to the property now owned by the plaintiff by means of a ditch and flume, where it was used for irrigation. At the time the diversion was made, the S.E. 1/4 of section 11 was government land. During the year 1905 this quarter, together with other lands, was granted to the state of Washington for the establishment and maintenance of a scientific school. The application by the state was made March 5, 1904. In 1906 the 160 acres mentioned was sold by the state to the defendant. This controversy arose in 1911, when the defendant refused longer to permit the plaintiff to take water from the stream.

It is claimed that since the land was granted to the state for the purpose of a scientific school, no right of appropriation exists under the provisions of the enabling act. This question, however, is not necessarily involved in the case and therefore no opinion will be expressed upon it.

The right to appropriate water for irrigation purposes arose out of the doctrine of necessity, for without such right, arid lands could not be made valuable. The right of appropriation is an impairment of the common-law doctrine that the water of a stream must continue to flow in its natural channel undiminished in quantity and unimpaired in quality. The right to appropriate water for irrigation purposes has been recognized by the acts of Congress, and by the statutes of a number of states. The Legislature of this state during the session of 1890 passed an act, authorizing any person who owns or has possessory rights in lands in the vicinity of any natural stream or lake, not abutting on such stream or lake, to take water therefrom, if there be any surplus of unappropriated water in such lake or stream. Rem. 1915 Code, § 6333. In speaking of the act of Congress relative to the right to appropriate water for irrigation purposes, Mr. McKinney in his work on Irrigation and Water Rights, vol. 1 (2d Ed.) p. 1026, remarks:

'As far as the United States government is concerned by those various acts of Congress, fully discussed in future portions of this work, it has waived its rights as sovereign in and to the government and control of the waters flowing or standing within the boundaries of any state, and has conferred the jurisdiction of such waters upon such state.'

The state, then, when it passed the act of 1890, had the right to authorize the appropriation. Under this authority the appropriation was made during the year 1903. At this time the title to the land now owned by the defendant had not passed out of the federal government. The application for it had not then been filed by the state. The making the appropriation was authorized by the state, and...