Dickey v. Maddux

• Decision Date: 10 February 1908
• Citation: 93 P. 1090,48 Wash. 411
• Court: Washington Supreme Court
• Parties: DICKEY et ux. v. MADDUX et ux.

93 P. 1090

48 Wash. 411

DICKEY et ux. v. MADDUX et ux.

Supreme Court of Washington

February 10, 1908

Appeal from Superior Court, Kittitas County; N. B. Bigg, Judge.

Action by Ed. V. Dickey and wife against AL. L. Maddux and wife. From a judgment for plaintiffs, defendants appeal. Reversed and remanded, with instructions.

Rudkin and Fullerton, JJ., dissenting.

J. B Davidson, for appellants.

Hovey & Hale, for respondents.

ROOT J.

This is an action brought by respondents to enjoin appellants from interfering with the taking of water from certain alleged springs situated on the lands of appellants, which water the respondents claim was appropriated by their predecessor in interest in 1883. From a decree in favor of plaintiffs, this appeal is taken by defendants.

It is urged by appellants that the so-called springs are not flowing springs, nor in reality springs at all, and that there is no stream connected therewith; but that they are merely pools of seepage water coming from the side hill, and making a marsh or bog, and not constituting the character of water authorized to be appropriated under the law. It appears that there was about half an acre of these so-called springs and that during a portion of the year there was a surrounding area of something like 10 acres which was marshy. One witness said: 'There was a piece of level ground that goes off to the south and drops very abruptly. These springs rest right in the brow of that little drop off. There was quite a bit of water standing around in the springs; looked like there might be five or six springs.' The evidence showed that there was no stream leading into these springs, and that the water therefrom formed no channel or stream in leaving, although during a portion of the wet season of the year some of the water would flow down (but not in any stream or channel) for a short distance on the side hill, where it would disappear in the soil. A territorial statute enacted in 1873 read as follows: 'Be it enacted by the Legislative Assembly of the territory of Washington that any person or persons, corporation or company who may have or hold a title or possessory right or title to any agricultural lands within the limits of Yakima county, Washington territory, shall be entitled to the use and enjoyment of the waters of the streams or creeks in said county for the purpose of irrigation and making said land valuable for agricultural purposes to the full extent of the soil thereof.' Laws 1873, p. 520. This and the common law were in force at the time of the alleged appropriation of this water.

Respondents claim that these springs are surface bodies of water, and that, though their source may be from percolating water, they themselves are situated open to the air, and that they were flowing springs a portion of the year. It is admitted that this land was originally a portion of the Northern Pacific Railway Company's land grant. It is claimed by respondents that the rights of this company did not attach to said lands until December, 1884, and that, under section 2339 of the Revised Statutes [U. S. Comp. St. 1901, p. 1437] respondents or their predecessors in interest had a right to appropriate this water from these springs prior to said date. An examination of the evidence convinces us that these pools of water were not live springs, and constituted nothing more than a bog occasioned by the seepage water. No stream or...