In re Martha Lake Water Co. No. 1
| Decision Date | 02 May 1929 |
| Docket Number | 21772. |
| Citation | 152 Wash. 53,277 P. 382 |
| Court | Washington Supreme Court |
| Parties | In re MARTHA LAKE WATER CO. NO. 1. v. NELSON et al. MARTHA LAKE WATER CO. NO. 1. |
Department 2.
Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.
Application by the Martha Lake Water Company No. 1 to the State Supervisor of Hydraulics for permission to appropriate the water of Martha Lake in Snohomish County, Wash. The Supervisor of Hydraulics granted the permit, and O. F. Nelson and others appealed to the superior court, where a judgment was rendered enjoining the water company from lowering the water in Martha Lake until it should acquire the right to do so by eminent domain, and the water company appeals. Affirmed.
Bell McNeil & Bowles, of Seattle, for appellant.
Stratton & Kane and Elmer W. Leader, all of Seattle, for respondents.
The Martha Lake Water Company, a corporation, applied to the state supervisor of hydraulics for permission to appropriate a certain quantity of the water of Martha Lake for the purpose of irrigation and domestic use upon nonriparian land. The supervisor of hydraulics granted the permit to take the quantity of water applied for from the lake for a period of three years. A number of persons owning property bordering on the lake with riparian rights appealed to the superior court where a trial was had before the court without a jury. The court made findings of fact and conclusions of law and entered a judgment enjoining and prohibiting the water company from lowering the water in Martha Lake until it should acquire the right so to do by eminent domain. The appeal is from this judgment.
Martha Lake Water Company is the appellant. A number of persons owning property riparian to the lake are the respondents.
Martha Lake is a small narrow body of water covering an area of approximately 59 acres and is nonnavigable. Its average depth is about 20 feet. It is located approximately 12 miles from the city of Everett and about 20 miles from Seattle. Some years ago the then owner or owners of the property to the north, west and south of the lake platted the same into small tracts, much of which has been sold to individual owners. The tracts riparian to the lake were sold for $1,000 per acre the nonriparian land for $300 per acre. The riparian owners purchased their property because of its access to the water for bathing, boating, swimming, fishing and for summer homes. A number of summer homes and summer resorts have been constructed by riparian owners. The riparian land is chiefly valuable for the purposes mentioned. It is not valuable for agricultural purposes. If the permit granted the appellant by the supervisor of hydraulics were sustained it would lower the water in the lake approximately 12 inches below mean low-water mark during the dry season. The effect of this lowering would be that the water's edge would recede from 8 to 50 feet. This would be a material and substantial damage to the riparian owners.
The question is whether the appellant has the right to appropriate the waters of the lake to be used upon nonriparian land, when by so doing it would cause the water of the lake to recede and materially damage the riparian property owners, without first having acquired the right so to do by an eminent domain proceeding.
In Brown v. Chase, 125 Wash. 542, 217 P. 23, it was held that water of a nonnavigable stream might be appropriated for use upon nonriparian land, providing it did not interfere with the use that the riparian owner was then making of the water or which he would use within a reasonable time for irrigation or domestic purposes. The question there involved was the ownership of the water, which is a different question from that before us at the present time.
The case of Proctor v. Sim, 134 Wash. 606, 236 P. 114 followed Brown v. Chase, supra, and applied the doctrine of that case to a nonnavigable lake. There was not there involved any question of damages to the riparian...
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