In re Johnson Creek Water Rights

• Decision Date: 29 December 1930
• Docket Number: 22511.
• Citation: 159 Wash. 629,294 P. 566
• Parties: In re JOHNSON CREEK WATER RIGHTS. v. GORDON et al. STATE
• Court: Washington Supreme Court

294 P. 566

159 Wash. 629

In re JOHNSON CREEK WATER RIGHTS.

STATE v. GORDON et al.

No. 22511.

Supreme Court of Washington

December 29, 1930

Department 1.

Appeal from Superior Court, Chelan County; W. O. Parr, Judge.

Statutory proceedings by the State, for the adjudication of the rights to the use of waters of Johnson Creek against J. C. Gordon Jr., and others. From the judgment sustaining exceptions to the referee's report, J. C. Gordon, Jr., and others appeal. Viola Gray and her husband, who were among the original defendants, being respondents on appeal.

Reversed and remanded, with instructions.

A. N Corbin, of Wenatchee, for appellants.

MAIN J.

This is a statutory proceeding for the adjudication of the waters of Johnson creek, which is a small stream in Chelan county. Charles J. Bartholet, assistant state supervisor of hydraulics, was appointed referee to take the testimony and make a report. To the report exceptions were filed. A hearing was had before the superior court, which resulted in a judgment sustaining the exceptions in one material respect. From the judgment entered, J. C. Gordon, Jr., and Cora A Gordon, his wife, and De Tweede Northwestern and Pacific Hypotheekbank, a corporation, appeal.

After taking the testimony and before making his report, the referee made a personal inspection of the physical conditions of the stream as an aid in the interpretation of the evidence which had been introduced before him. The referee found that Johnson creek is a natural water course, and that the bed of the stream is of such a character that the water arises and sinks along its course coming to the surface with the bedrock, and sinking in other sections where the soils are porous. In the spring of the year during the snow run off, water runs on the surface the entire length of the stream. If that finding is correct, then Johnson creek is a stream, even though it does not flow continuously and at times is dry in places.

In Tierney v. Yakima County, 136 Wash. 481, 239 P. 248, 249, it is said:

'It often happens, as is well known, that during long periods with but little rainfall streams of considerable magnitude or their several channels become nearly dry in summer; and yet no one would hesitate to call them water courses. It is immaterial that the flow may be intermittent, or even that at certain seasons of the year there may be little or even no flow of water. A most common definition of a water course is:

"It must appear that the water usually flows therein in a certain

...