Hayward v. Mason

• Decision Date: 25 September 1909
• Citation: 104 P. 141,54 Wash. 653
• Parties: HAYWARD v. MASON.
• Court: Washington Supreme Court

104 P. 141

54 Wash. 653

HAYWARD v. MASON.

Supreme Court of Washington

September 25, 1909

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

Action by Walter C. Hayward against Ruth Mason. Judgment for plaintiff, and defendant appeals. Affirmed.

See also, 104 P. 139.

Fred Parker and O. O. Felkner, for appellant.

Hovey &amp Hale, for respondent.

MOUNT J.

In the year 1904 the respondent brought an action against the appellant, alleging that she was unlawfully obstructing a drainage system upon respondent's land, and prayed that she be restrained from so doing. While that action was pending and undetermined in the lower court the respondent constructed other drainage ditches upon his own land, and brought another action against appellant, alleging that appellant was unlawfully obstructing these ditches, and prayed for injunctive relief. When both cases were at issue the trial court entered an order consolidating them. They were thereafter tried as one case. Upon the trial the court made findings of fact and conclusions of law, and entered a decree defining the rights of the respondent to drain his land and to irrigate parts thereof, and also defining the rights of the appellant to certain drainage water and ditches upon respondent's land for irrigating her own land. The defendant has appealed from that decree. Fifty-one assignments of error are made in the appellant's brief. These assignments are not noticed. But appellant makes the following contentions: First, that the court erred in consolidating the two actions; second, that by certain deeds respondent conveyed not only the right to all water upon his land to the appellant, but also the fee of the ditches upon his land; third, that the appellant owns the riparian right to all the water upon respondent's land; and, fourth, that the court erred in not awarding damages to the appellant. We shall briefly notice these contentions in the order stated.

1. Courts of equity are vested with discretionary powers to consolidate causes, and such discretion will not be reviewed except for abuse. 8 Cyc. p. 593. In Peterson v. Dillon, 27 Wash. 78, 85, 67 P. 397, 399, this court said: 'A court should always be possessed of the power to make orders which will expedite its business and prevent costs and a multiplicity of suits, when one action will answer all of the purposes of justice. * * * The consolidation was within the discretion of the court even if the parties are not the same in each action, and the court's order will not be interfered with by the appellate court if the suit involves the same subject-matter.' In this case the parties were the same and the subject-matter was the same. The ditches involved were different. But the rights of the parties to drain and use the water was the real subject-matter, and that was the same in both actions. There can be no question that, if the actions had been begun at the same time, the causes might have been joined in the same complaint. This is one of the usual tests for consolidation. There is therefore no merit in the contention that it was error to consolidate the two actions.

2. It appears that the appellant purchased her land from the respondent. The deed recited that the land was conveyed with the rights thereto belonging or appertaining, 'including all ditches and water rights,' except certain reserved rights not in controversy. This deed was executed in February, 1900. On June 16, 1900, the appellant by deed conveyed to respondent 'a right of way for the maintenance and operation of a drainage ditch across the S.W 1/4 of the S.W. 1/4 of Sec. 12, township 18 north, range 17 E. W. M., along the line as at present laid out for the purpose of draining surplus water from the S. 1/2 of the S.E. 1/4 of Sec. 11, in said township and range.' The first description above is of the appellant's land. The latter is the description of the respondent's land. The appellant's land lies to the east of respondent's land, and is separated therefrom by a county road. The deed continues: 'It is expressly understood and agreed that the said party of the second part (respondent) shall have the right of ingress to and egress from said first described tract for the purpose of draining and repairing drainage ditches aforesaid. It is further understood and agreed as a part of the consideration of this conveyance that the said party of the second part shall so maintain and operate...