Dontanello v. Gust

• Decision Date: 20 July 1915
• Docket Number: 12348.
• Citation: 150 P. 420,86 Wash. 268
• Court: Washington Supreme Court
• Parties: DONTANELLO v. GUST et al.

150 P. 420

86 Wash. 268

DONTANELLO v. GUST et al.

No. 12348.

Supreme Court of Washington

July 20, 1915

Department 2. Appeal from Superior Court, Yakima County; E. B. Preble Judge.

Action by William Dontanello against Adolph A. Gust and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions.

Wende &amp Taylor, of North Yakima, for appellant.

Englehart & Rigg, of North Yakima, and Linn & Boyle, of Prosser, for respondents.

MAIN J.

The purpose of this action was to quiet title which it was claimed had been acquired by prescription to the right of way for an irrigation ditch, and the waters of a spring which flowed into the ditch. After the issues were framed, the cause was tried to the court sitting without a jury. A judgment was entered quieting the title to the right of way for the ditch and a strip of land ten feet wide on either side of the center line thereof, but denying the right of the plaintiff to have the title to the spring quieted in himself. From this judgment the plaintiff prosecutes the appeal.

The facts are substantially as follows: The appellant is the owner of the S.E. 1/4 of the S.E. 1/4 of section 26, township 11 N., range 23 E. W. M. The respondents are the owners of the N.E. 1/4 of the S.E. 1/4 of section 26, and the N.W. 1/4 of the S.W. 1/4 of section 25, in the same township and range. The appellant's land consists of approximately 40 acres, is arid, and is not adapted to profitable farming without irrigation. On the N.W. 1/4 of the S.W. 1/4 of section 5, there is a water course which flows in a southwesterly direction, crossing the land owned by the appellant. This water course is fed by a spring, and intermittently by rains and the melting of snow. The spring is located in a canyon on the N.W. 1/4 of the S.W. 1/4 of section 25. The walls of the canyon are from 12 to 15 feet in height. The spring flows continuously throughout the year.

During the year 1891, the appellant filed a claim to the waters of the spring and the right to conduct the same through an irrigation ditch. Notice of this claim was posted at the spring. During the year 1892, the appellant constructed an irrigation ditch for the purpose of carrying all waters from this the purpose of carrying all waters from this gation purposes. Across the canyon at about 250 feet below the spring a dam was constructed. At this dam was the intake for the ditch. The ditch extended in a southwesterly direction and ended upon the appellant's land. The dam and intake were constructed at the closest practicable point to the spring.

During the farming season of 1892, and every year thereafter, the appellant has taken the water of the creek into the ditch at the intake to the full amount of the flow of the ditch, and has conducted the water thence through the ditch by gravity to and upon his land for irrigation purposes; and in the year 1892, and every year thereafter, he has irrigated and grown to maturity crops of hay, fruits, etc. To facilitate the unobstructed flow of the stream between the spring and the intake, the appellant each and every year has removed from the stream sagebrush and willows which would accumulate there, and other obstructions.

The trial court found that the appellant by adverse user had acquired the right to divert all waters which came down the water course to his intake, and had acquired an easement for his ditch upon the land it covers, and ten feet on either side of the center line thereof, but that the appellant had acquired no easement in that part of the creek above his intake, or upon any of the lands above the intake, and that the appellant had acquired no prescriptive right to the use of the water of the spring for the irrigation of his lands, save and except as to the water which might reach the intake of his ditch. The respondents filed no exceptions to the findings and conclusions of the trial court. The facts, however, are not in dispute in any material respect.

The question presented upon this appeal is whether the appellant acquired the right to the waters of the spring, as well as the right to take from the water course all water which came to his dam and intake. The right, if it existed, had been acquired by adverse user. It is a recognized doctrine that rights to the use of flowing waters may be acquired by prescription. Mason v. Yearwood, 58 Wash. 276, 108 P. 608, 30 L. R. A. (N. S.) 1158; Farwell v. Brisson, 66 Wash. 305, 119 P. 814; Sander v. Bull, 76 Wash. 1, 135 P. 489.

The extent of the right which may be acquired to waters by adverse user is determined from the nature and character of the adverse user on which it is founded. Wutchumna Water Co. v. Ragle, 148 Cal. 759, 84 P. 162.

Where the right has been acquired by prescription, it results in vesting title in the claimant to the same extent as if the right had been conveyed by deed. In 2 Kinney, Irrigation (2d Ed.) § 1057, it is said:

'The effect of a right acquired by prescription is to vest in the claimant the title to the same as completely as if conveyed to him by deed from the original owner. And, as stated in a previous section, there is a fiction of law indulged, in that he acquired his title in this manner. In other words, there is a presumption that the original owner granted the right to the claimant. * * *'

From the facts stated, it appears that the appellant is a lower owner. In other words, that the...