In re Clerf

• Decision Date: 02 November 1909
• Citation: 55 Wash. 465,104 P. 622
• Parties: In re CLERF.
• Court: Washington Supreme Court

104 P. 622

55 Wash. 465

In re CLERF.

Supreme Court of Washington, En Banc.

November 2, 1909

Original application by Mary A. Clerf for mandamus to be directed to the superior court for Kittitas county and to the Honorable Ralph Kauffman, judge thereof. Application denied.

A. Mires and Graves & McDaniels, for relator.

Pruyn Streff & Hoeffer, for respondent.

FULLERTON J.

This is an application for a writ of mandate. The relator avers that on or about May 13, 1905, her predecessor in interest as plaintiff began an action against certain named defendants the object and purpose of which was to obtain a judgment and decree adjudging the plaintiff to have a prior and paramount right as against the defendants to use the waters of a certain stream known both as Caribou creek and Cherry creek to the extent of 370 inches of water, miner's measure under a 4-inch pressure for stock and domestic purposes and for the purpose of irrigating certain land then owned by plaintiff; claiming such right for the purposes stated by reason of a first and prior appropriation of such waters and their application to the uses mentioned made by himself, and by his predecessors in interests to whose rights he succeeded. She further averred that thereafter certain parties were dismissed from the action, and certain others intervened and became parties thereto by leave of court; that the plaintiff died, and that she succeeded to all his rights and interests, and was substituted as plaintiff by permission and order of the court; that the defendant and interveners filed pleadings in which they controverted the plaintiff's claim, and set up and claimed interests in the waters of the creek adverse to the claim of the plaintiff, which they alleged to be prior and paramount thereto; that thereafter the cause was assigned for trial, and between March 2, 1908, and March 6, 1908, was tried to the court, each party submitting evidence in support of their several allegations, finally submitting the cause to the court for adjudication; that in April, 1908, the court announced, in substance, that it was unable to find that the plaintiff was entitled to any prior rights to the waters of the stream by virtue of prior appropriation but that the waters must be apportioned among all of the owners of land riparian to such stream according to acreage, and that no apportionment or final judgment could be entered without making parties to the action the owners of all the lands riparian to such creek; and thereupon entered an order directing the relator as plaintiff to cause all such riparian owners to be brought in and made parties to such action within 60 days from April 8, 1908. The relator then avers that Caribou or Cherry creek is a stream arising in the hills and mountains lying to the north and east of Kittitas valley, in the county of Kittitas, and flows southerly through such valley a distance of some 20 miles, where it empties into the Yakima river, and that the condition of the titles to the various lands along the creek are unknown to the relator, and it is impossible for her to ascertain who are the actual owners of such lands, and that the withholding of the final adjudication of the cause until relator shall bring in such owners and make them parties to the action is unwarranted and without authority of law. It is then averred that more than 90 days have elapsed since the cause was submitted to the court for adjudication, but that the court refuses and declines to render judgment therein, whereupon she prayed that a writ of mandate issue compelling the court to adjudicate the case upon the issues and evidence presented. The trial court in response to the notice served upon it appeared and controverted the relator's application. In its answer it admitted substantially all of the allegations of relator. Answering...