Funk v. Bartholet

• Citation: 289 P. 1018,157 Wash. 584
• Decision Date: 08 July 1930
• Docket Number: 22470.
• Parties: FUNK et ux. v. BARTHOLET, State Supervisor of Hydraulics.
• Court: United States State Supreme Court of Washington

289 P. 1018

157 Wash. 584

FUNK et ux. v. BARTHOLET, State Supervisor of Hydraulics.

No. 22470.

Supreme Court of Washington, En Banc.

July 8, 1930

Appeal from Superior Court, Clarke County; George B. Simpson, Judge.

George H. Funk and wife filed a notice of appeal and complaint in the superior court, seeking reversal of the findings and decision of Charles J. Bartholet, State Supervisor of Hydraulics. From orders and judgment leaving the decision of the supervisor undisturbed, George H. Funk and wife appeal.

Affirmed.

George H. Funk, of Olympia, for appellants.

John H Dunbar and H. C. Brodie, both of Olympia, and John A. Laing and Henry S. Gray, both of Portland, Or., for respondent.

PARKER, J.

This cause was brought into the superior court for Clarke county by George H. Funk and wife, by their notice of appeal and complaint, seeking reversal of the findings and decision of the state supervisor of hydraulics granting to the Inland Power & Light Company, a public service corporation, permits to appropriate, for power purposes, unappropriated waters of the north fork of the Lewis river, and permits to store such appropriated waters by two dams in that river. The cause was brought into this court by appeal of Funk and wife from the orders and judgment of the superior court hereinafter quoted which leaves the decision of the supervisor undisturbed. The appeal proceedings in the superior court and in this court were prosecuted under the provisions of section 11 of the Water Code, hereinafter quoted.

It is desirable that we have before us at the outset of our inquiry the provisions of the Water Code with which we are here concerned. Since the section numbers of the Water Code, as enacted by chapter 117, p. 447, Laws of 1917, have been preserved in the amendments thereto by chapter 71, p. 141 Laws of 1919, chapter 161, p. 457, Laws of 1925, and chapter 122, p. 269, Laws of 1929, we quote and notice its pertinent provisions by reference to such section numbers as follows:

'Section 1. * * * Subject to existing rights all waters within the state belong to the public, and any right thereto, or to the use thereof, shall be hereafter acquired only by appropriation for a beneficial use and in the manner provided and not otherwise; and, as between appropriations, the first in time shall be the first in right. Nothing contained in this act shall be construed to lessen, enlarge, or modify the existing rights of any riparian owner, or any existing right acquired by appropriation, or otherwise. * * *

'Sec. 4. The beneficial use of water is hereby declared to be a public use, and any person may exercise the right of eminent domain to acquire any property or rights now or hereafter existing when found necessary for the storage of water for, or the application of water to, any beneficial use * * *.

'Sec. 5. The administration of this act is imposed upon an engineer to be known as the State Supervisor of Hydraulics.

'Sec. 11. Any person, corporation or association feeling aggrieved at any order, decision, or determination of the State Supervisor of Hydraulics, or of any assistant or deputy, or any water master, affecting his interests, may have the same reviewed by a proceeding for that purpose, in the nature of an appeal, initiated in the superior court of the county in which the matter affected, or a portion thereof is situated. The proceedings in every such appeal shall be heard and tried by the court and shall be informal and summary, but full opportunity to be board and present evidence shall be had before judgment is pronounced. No such appeal shall be entertained unless notice of appeal containing a statement of the substance of the order, decision, or determination complained of and the manner in which the same injuriously affects the appellant's interests, shall have been served personally upon the State Supervisor of Hydraulics, or by registered mail, at his office at the state capitol, within twenty days following the rendition of the order, decision or determination appealed from and communication thereof in writing to the person affected thereby. * * * Appeal shall lie from the judgment of the superior court as in other civil cases. * * *

'Sec. 27. Any person, municipal corporation, firm, irrigation district, association, corporation or water users' association hereafter desiring to appropriate water for a beneficial use shall make an application to the State Supervisor of Hydraulics for a permit to make such appropriation, and shall not use or divert such waters until he has received a permit from such State Supervisor of Hydraulics as in this chapter provided. The construction of any ditch, canal or works, or performing any work in connection with said construction or appropriation, or the use of any waters, shall not be an appropriation of such water nor an act for the purpose of appropriating water unless a permit to make said appropriation has first been granted by the State Supervisor of Hydraulics: * * *

'Sec. 28. Each application for permit to appropriate water shall set forth the name and postoffice address of the applicant, the source of water supply, the nature and amount of the proposed use, the time during which water will be required each year, the location and description of the proposed ditch, canal, or other work, the time within which the completion of the construction and the time for the complete application of the water to the proposed use. * * * If for power purposes, it shall give the nature of the works by means of which the power is to be developed, the head and amount of water to be utilized, and the uses to which the power is to be applied. If for construction of a reservoir, it shall give the height of the dam, the capacity of the reservoir, and the uses to be made of the impounded waters. * * *

'Sec. 30. Upon filing an application which complies with the provisions of this act and the rules and regulations established hereunder, the Supervisor of Hydraulics shall instruct the applicant to publish notice thereof in a form and within a time prescribed by said Supervisor of Hydraulics, in one newspaper of general circulation published at the county seat of the county or counties in which the storage, diversion and use is to be made, and in such other newspapers as the Supervisor of Hydraulics may direct, once a week for two consecutive weeks.

'Sec. 31. When an application complying with the provisions of this chapter and with the rules and regulations of the State Supervisor of Hydraulics has been filed, the same shall be placed on record in the office of the State Supervisor of Hydraulics, and it shall be his duty to investigate the application, and determine what water, if any, is available for appropriation, and find and determine to what beneficial use or uses it can be applied. * * * If it is proposed to appropriate water for the purpose of power development, the Supervisor shall investigate, determine and find whether the proposed development is likely to prove detrimental to the public interest, having in mind the highest feasible use of the waters belonging to the public. * * * The State Supervisor of Hydraulics shall make and file as part of the record in the matter, written findings of fact concerning all things investigated, and if he shall find that there is water available for appropriation for a beneficial use, and the appropriation thereof as proposed in the application will not impair existing rights or be detrimental to the public welfare, he shall issue a permit stating the amount of water to which the applicant shall be entitled and the beneficial use or uses to which it may be applied: * * * But where there is no unappropriated water in the proposed source of supply, or where the proposed use conflicts with existing rights, or threatens to prove detrimental to the public interest, having due regard to the highest feasible development of the use of the waters belonging to the public, it shall be the duty of the State Supervisor of Hydraulics to reject such application and to refuse to issue the permit asked for. If the permit is refused because of conflict with existing rights and such applicant shall acquire same by purchase or condemnation under section 4 hereof, and supervisor may thereupon grant such permit.'

Section 33 provides for diligent prosecution of the permitted project looking to the putting of the water to the contemplated beneficial use, and for loss of the appropriation right for failure in that respect.

'Sec. 35. The right acquired by appropriation shall relate back to the date of filing of the original application in the office of the State Supervisor of Hydraulics.'

The facts stated in appellants' notice of appeal and complaint as grounds for reversal of the decision of the supervisor, filed in the superior court under section 11 of the water code, may be summarized as follows: The portion of the Lewis river here in question flows in a southwesterly direction along the northwesterly boundary of Clarke county. Appellants own a quarter section of timber land in Clarke county near to, but not bordering upon, the waters of the river; that is, the nearest point of their land to the waters of the river is approximately one-quarter of a mile distant therefrom in a southeasterly direction. From a point some distance above appellants' land, down to where the river empties into the Columbia river, it is navigable for the driving of logs. On January 25, 1929, the Inland Power & Light Company filed with the supervisor two applications for permission to appropriate the waters of the river in two separate localities, one near Ariel and one near Yale, and at the same time that company filed with the supervisor two additional applications for permission...