Everett Water Co. v. Powers
| Decision Date | 21 February 1905 |
| Parties | EVERETT WATER CO. v. POWERS et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, Snohomish County; John C. Denney, Judge.
Suit by the Everett Water Company against R. W. Powers and others. From a decree in favor of complainant, defendants appeal. Affirmed.
G. S Judd and W. W. Black, for appellants.
Brownell & Coleman, for respondent.
This suit involves a right of way for a water-pipe line, over which the respondent company desires to convey water for the use of the inhabitants of the city of Everett, and also the right to divert water for that purpose. The issues and history leading up to the controversy, substantially stated are as follows: The complaint avers that in the year 1891 Henry Hewitt, in behalf of a syndicate of New York capitalists, conceived the plan of establishing a town site at and near the mouth of the Snohomish river; that, in furtherance of the project, in the spring of said year he purchased 5,000 or more acres of land in that vicinity; that the nearest post office in the vicinity of the land was Lowell, an unincorporated village containing at that time approximately 100 inhabitants; that among the plans for developing the proposed town was that of furnishing a water supply and constructing a water system therefor; that, in looking over the sources of available water supply, said Hewitt deemed it most practicable to utilize the waters of Woods creek, a stream in the vicinity; that, for the purpose of acquiring the waters of said creek, said Hewitt purchased from S. O. Woods certain lands over which said stream flows and also the right to construct the necessary pipe lines, and to divert the waters of the stream for use in said proposed town, which was then generally known as 'Lowell'; that said Woods was then the owner in fee simple of said land so purchased, and that the same was unincumbered, except by a lease to one Crook; that said purchase was evidenced by a deed which was duly recorded on May 22, 1891; that thereafter, in the year 1891, said Hewitt proceeded to mark out the right of way for a pipe line, and to construct the necessary dams, ditches, flumes, and other apparatus for the purpose of diverting said waters and utilizing them in such water system for the proposed town; that such diversion was at that time enjoined by decree entered in an action brought by said Crookagainst said Hewitt, such injunction being based upon the rights of Crook as lessee aforesaid, the lease antedating the conveyance to Hewitt, and not expiring until the year 1896; that thereupon Hewitt, being thus compelled to cease operations in the matter of procuring said water supply from Woods creek, sought other sources of supply, and proceeded with the construction of a water system to supply the proposed city, which system is now, and for years has been, owned and operated by respondent; that the proposed town site was eventually platted under the name of the 'City of Everett,' and that at the time of bringing this suit the same was a municipal corporation containing approximately 18,000 inhabitants; that the aforesaid rights obtained by said Hewitt from Woods were by him duly conveyed to, and are now owned by, respondent, a corporation which has for years been engaged in furnishing the inhabitants of said city and its vicinity with water for general municipal, manufacturing, and domestic purposes; that for years respondent has utilized for its water system other sources of supply than the said Woods creek, but has always retained its rights in said stream, with the intention of eventually utilizing it as a source of supply; that it has from time to time acquired the rights of riparian proprietors along the stream below the intended point of diversion in the tract acquired from Woods; that the growth of the city has been so rapid in the last few years as now makes it necessary to utilize the waters of Woods creek, in addition to other sources of supply, in order to furnish the inhabitants of said city and vicinity with water; that about the 1st of August, 1902, respondent started to complete the works necessary to divert the waters of Woods creek into its general system, but was met by claims of appellants, who assert that, from sources of title with which respondent is unacquainted, they are in possession and control of a portion of the lands purchased by Hewitt from Woods as aforesaid; that appellants have forbidden respondent to go upon or across said land for the purpose of completing the necessary works to divert the waters, they claiming that respondent has no right thereto; and that they threaten by force to prevent the construction of the pipe line across the land. An emergency is alleged, and an injunction asked to restrain appellants from in any way interfering with the construction of said works and the diversion of said waters. Appellants answered the complaint, alleging that they are the owners of 80 acres over which said Woods creek flows, and that the diversion of the waters at the place proposed would greatly damage them; that during the year 1891 said Hewitt went upon the land now owned by appellants, and marked out a right of way and constructed a ditch through the land for the purpose of diverting the waters of said stream, claiming to do so under and by virtue of the conveyance from Woods heretofore mentioned; that shortly thereafter said Hewitt abandoned said right of way and ditch, and proceeded to construct waterworks at a point about five miles distant from the Woods Creek location, and that such works have ever since been used to supply water to the city of Everett; that since March, 1892, no attempt has been made to divert and use the waters of Woods creek until about August 1, 1902, when respondent, claiming as the assignee of the rights of Hewitt, attempted to lay out a new pipe line, which was separate and distinct from the line originally laid out by Hewitt, running through the land on a different route; that, when the aforesaid instrument between Woods and Hewitt was executed, it was the intention of the parties that only sufficient water should be diverted from Woods creek to supply the town of Lowell, which then contained about 100 inhabitants, is now a place of about 500 people, and is entirely separate and distinct from the city of Everett; that the principal purpose of respondent in constructing the pipe line across appellant's lands, and in diverting the water of said stream, is to supply the city of Everett with water; that, if only such a quantity of water were diverted as would be necessary to supply the town of Lowell, it would not materially damage appellants, but that the diversion to supply the city of Everett will materially damage them, and will render said stream valueless to them; that, at the time this action was commenced, respondent had not acquired the riparian rights below appellants' lands, and that it has no right to divert the waters at any point along or above their lands; that the instrument between Woods and Hewitt is void and of no effect, for the reason that it is indefinite in its description of the right of way, as to its width and location, and as to the amount of water to be diverted; that respondent seeks to perpetrate a fraud upon appellants, in that it is pretending to proceed by virtue of the original conveyance from Woods to Hewitt, which authorized the diversion of water for the use of the town of Lowell, whereas the principal purpose now is to divert water for the use of the city of Everett; that respondent has never acquired any right to construct a pipe line at said place, or to divert the water by means thereof, for the purpose of supplying the city of Everett; that appellants and their grantors have been in possession of said land under color of title, and have been in the open, notorious, and exclusive possession thereof ever since the 1st day of January, 1892; that neither said Hewitt nor his assignee has ever since said time attempted to exercise possession or ownership over said lands or waters; and that, inasmuch as more than 10 years have elapsed, the respondent is barred.
The more material averments of the answer are denied by the reply.
Under issues, the principal features of which are stated above, the cause was tried by the court without a jury, and resulted in a decree permanently enjoining appellants from interfering with respondent in the construction of the pipe line upon appellants' lands, in so far as the same conforms in its route with the one located by Mr. Hewitt in 1891; and, as to that portion of the line now proposed to be constructed which departs from the original location, appellants are enjoined from interfering for a period of 30 days. The decree further provides that, in the event respondent shall within said period of 30 days commence condemnation proceedings for that portion of the right of way which departs from the original then the injunction shall remain in force pending...
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