Hathaway v. Yakima Water, Light & Power Co.

• Decision Date: 30 April 1896
• Citation: 44 P. 896,14 Wash. 469
• Court: Washington Supreme Court
• Parties: HATHAWAY v. YAKIMA WATER, LIGHT & POWER CO.

44 P. 896

14 Wash. 469

HATHAWAY v. YAKIMA WATER, LIGHT & POWER CO.

Supreme Court of Washington

April 30, 1896

Appeal from superior court, Yakima county; Carroll B. Graves, Judge

Action by J. H. Hathaway against the Yakima Water, Light & Power Company for an injunction. From a judgment for plaintiff defendant appeals. Affirmed.

Whitson & Parker and Reavis & Englehart, for appellant.

F. H Rudkin and Jones & Newman, for respondent.

GORDON J.

The respondent brought this action for the purpose of enjoining appellant from keeping and maintaining a water way or waste ditch across certain lands. The controlling facts in the case can best be stated by setting forth the findings of the lower court. They are as follows: "First. That at all times mentioned in the complaint herein the plaintiff was, and now is, the owner in fee simple of all those certain lots tracts, or parcels of land situate, lying, and being in the county of Yakima, state of Washington, and particularly described as follows. [Then follows description.] Second. That the defendant is a corporation organized and existing under the laws of the state of Washington. Third. That for more than one year last past the defendant has unlawfully and wrongfully kept and maintained a large waste ditch upon, through, over, and across the above-described lands of plaintiff, commencing at a point in the southeast corner of lot twenty-eight, above described; thence in an easterly direction along and across the southerly portion of lots twenty-nine, thirty-one, and thirty-two, above described. Fourth. That said defendant has no right of way for said waste ditch across the above-described lands of plaintiff and has no interest or easement therein, but the plaintiff is the sole and absolute owner in fee of the above-described lands, and every part thereof. Fifth. That the defendant has made no compensation to plaintiff for or on account of the use and occupation of said above-described lands by said waste ditch, or for any easement or interest in said lands; and said defendant refused and still refuses so to do. Sixth. That the defendant threatens to and will continue so to use and occupy said above-described lands of plaintiff by said waste ditch, and is attempting to deprive the plaintiff herein of his said property without paying or making any compensation therefor, and without due process of law; and, if said use and occupation by the defendant of plaintiff's said lands for said waste ditch is continued, such use and occupation will ripen into an easement, and the plaintiff will be wholly deprived of his said property without compensation, to his great and irreparable damage and injury; and plaintiff has no plain, speedy, or adequate remedy at law." The following finding was specially requested by the appellant, viz.: "That said defendant entered upon the premises described in the complaint and constructed said ditch with the knowledge and consent of the plaintiff, and plaintiff granted verbally the right of way therefor prior to said entry, and has continuously occupied and used the same ever since as a right of way for its canal, and same is necessary for the operation of its works, and cannot be operated without the same." Thereupon the court struck therefrom the words, "and plaintiff granted verbally the right of way therefor prior to said entry," and made the finding as requested. The appellant further proposed and requested the court to adopt the following as a conclusion of law from the findings so made, viz.: "That the plaintiff granted a license for said right of way which is irrevocable, and defendant is entitled to the use thereof and remain in possession, and this action should be dismissed." This conclusion the court refused to adopt, and entered a decree enjoining and restraining appellant from keeping or maintaining said waste ditch upon the lands of the plaintiff (respondent), and from in any manner interfering with the free use and occupation by the respondent of the said land, but incorporated the following provision therein, viz.: "Provided, however, if the said defendant (appellant) shall within thirty days from the date hereof file an additional answer in this cause praying for the condemnation and appropriation of a right of way across plaintiff's said lands for said waste ditch, upon making compensation therefor, or shall, within said period of thirty days from date hereof, commence an independent action for the purpose of condemning and appropriating a right of way as aforesaid, then this decree shall be of no...