Geddis v. Parrish

• Decision Date: 06 March 1889
• Citation: 1 Wash. 587,21 P. 314
• Parties: GEDDIS v. PARRISH.
• Court: Washington Supreme Court

21 P. 314

1 Wash. 587

GEDDIS v. PARRISH.

Supreme Court of Territory of Washington

March 6, 1889

Appeal from district court, Fourth district.

Action by George W. Parrish against S. R. Geddis to enjoin the obstruction of an irrigating ditch. Judgment for plaintiff and defendant appeals.

Allen, Whitson & Gilliam and A Mires, for appellant.

Daniel Gaby, for appellee.

ALLYN J.

Parrish appellee, seeks to establish his title to an irrigating ditch, having its flow from a spring upon the land of appellant, and across which it flows to the property and ditch of appellee, (plaintiff.) Appellant contends that the original flow from this spring was slight, and at times scarcely at all, and the flow, now large and valuable, is from the seepage of irrigation above; that the spring is not a flowing one; and also denies prior appropriation to appellant's title. The evidence of a large number of witnesses, who testified to knowledge during the last 10 to 17 years of this particular locality, satisfies us that there was a flowing spring, from which a natural water-course of considerable size had its origin, which this evidence traces in its course for more than a mile, and was, to some extent at least, known by the name of "Indian Creek." It is also reasonably clear that Johnson, who sold to Mehan, and Mehan to Parrish, settled upon this land now owned by Parrish, in 1876, and shortly thereafter, in the same year, appropriated the stream referred to for the use of his stock, and irrigating, in a small way, his land. It also appears that appellant derives title from one Schleif, who entered the land upon which the spring is situated, January 7, 1877, and the following year secured a patent. Schleif sold to appellant the same year.

For the purpose of this case, we may consider as established that in the spring of 1876, appellee, through his grantors appropriated the water then flowing from and across public land of the United States by causing it to take a different channel, a ditch across this land, which the appellant later settled upon, and since acquired title, and that this flow of water continued until obstructed by defendant, in May, 1884. The appellant, having subsequently acquired title to such public lands through his grantor, subsequent, in point of time, to appellee's grantors, in May, 1884, by a dam upon his own land, so obstructed and changed the course of this water that it fails to flow over the land of appellee at all, and causes him to lose the entire use of same. To maintain the right to a water-course it must appear that the water usually flows therein in a certain direction, and in a regular channel with banks and sides. It may not flow continuously, and it may at times be dry. It must have, however, a substantial existence. That such a stream or water-course may have its head or source from a flowing spring, as we find in this case, in no way changes its nature. The water from such spring is the subject of appropriation as certainly as the water of a river. Ang. Water-Courses, 138, 149; Gould, Waters, § 285. That one may lawfully appropriate a stream of water flowing upon or across the public lands of the United States, and divert it to his own use, acquiring thereby a vested right in such stream which a subsequent grantee of such public lands of the United States cannot materially interfere with or destroy, we think indisputable, and have endeavored to plainly pronounce as a precedent in Ellis v. Improvement Co., ante, 27, the general principles of which may well be applied to this case. There is an evident distinction between the rights of littoral proprietors who acquire title to the land, and thereby water-rights, with no question of appropriations conflicting either above or below, and who thereafter use the water. Each, in such case, must so use as not to interfere, unnecessarily, with the other, as each has an equal right. The same general principle prevails where titles have been acquired to lands over which water flows with no question of prior appropriation preceding such titles. Each may use, in a reasonable way, but must not unnecessarily injure the other. But an appropriator of water may acquire rights superior to a fee subsequently acquired from the government, as is recognized by act of ...