Crook v. Hewitt

• Decision Date: 17 September 1892
• Citation: 4 Wash. 749,31 P. 28
• Parties: CROOK v. HEWITT ET AL.
• Court: Washington Supreme Court

31 P. 28

4 Wash. 749

CROOK v. HEWITT ET AL.

Supreme Court of Washington

September 17, 1892

Appeal from superior court, Snohomish county; JOHN C. DENNEY, Judge.

Action by A. Crook against Henry Hewitt, Jr., and the Everett Land Company to restrain a diversion of water from a stream known as "Wood's Creek." From a judgment of dismissal, plaintiff appeals. Reversed.

Stratton, Lewis & Gilman, for appellant.

Brown & Brownell, for respondents.

DUNBAR J.

In this case, after the testimony of the appellant was in, the respondents moved to dismiss the action on the two following grounds: (1) "That no interest whatever to this plaintiff in and to the stream known as 'Wood's Creek' has been shown in the testimony now before the court." (2) "That no evidence has been introduced before this court showing that the Everett Land Company or Henry Hewitt is intending to, or about to, divert a sufficient quantity of water from that stream to in any way prevent this plaintiff from having sufficient water to irrigate that land." The motion was sustained, and the cause dismissed. We have examined all the authorities presented by both appellant and respondents, and it seems to us that the law is uniformly settled that every proprietor of lands on the bank of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run, without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debit currere ut currere solebat is the language of the law. Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. This is the law as pronounced by Chancellor Kent, in 3 Kent, Comm. p. *39, and without particularizing, it is substantially the law as announced by all the text writers and courts. All the modification of the rule that there has been is to allow a reasonable use; because, as is said by many of the courts, to hold that there can be no diminution whatever of the water would be to deny any valuable use of it, and, therefore, the injury that is incidental to a reasonable enjoyment of a common right can demand no redress. Indeed, this can scarcely be called a modification of the text, but rather a construction which has always been recognized; and the reasonableness of the use is a question of fact, to be passed upon by the court or jury. But it must be borne in mind that this liberal condition attaches only to the use of the water as an incident to the land, and not to the diversion of the water from the land. A riparian proprietor may divert the water from the stream, as it passes through his own land without license from the proprietors above him if he does not obstruct the water from flowing as freely as it was wont, and without license from the lower proprietors if he restores the water to its natural channel before it enters their land, and does not materially diminish its flow. The distinction is to be observed between the right to divert or change the course of the stream itself so as to turn it away from a lower proprietor, and the right to take water from the stream. The first is wholly unlawful; the second may be exercised to a reasonable extent. Gould, Waters, (2d Ed.) § 213. So, in Dumont v. Kellogg, 29 Mich. 420, a case cited by respondents, the court, in a most marked manner, recognizes this distinction when it says, "and, in considering the case, it may be remarked at the outset that it differs essentially from a case in which a stream has been diverted from its natural course, and turned away from a proprietor below. No person has a right to cause such a diversion, and it is wholly a wrongful act, for which an action will lie without proof of special damage;" and this distinction seems to be thoroughly recognized by the law, although the cases frequently, in speaking of the use of the water, refer to the taking as a diversion, but a glance at the cases is...