In re Water Rights in Alpowa Creek in Garfield and Asotin Counties

• Decision Date: 19 March 1924
• Docket Number: 18261.
• Court: Washington Supreme Court
• Parties: In re WATER RIGHTS IN ALPOWA CREEK IN GARFIELD AND ASOTIN COUNTIES. v. ANDERSON et al. STATE

224 P. 29

129 Wash. 9

In re WATER RIGHTS IN ALPOWA CREEK IN GARFIELD AND ASOTIN COUNTIES.

STATE v. ANDERSON et al.

No. 18261.

Supreme Court of Washington

March 19, 1924

Department 2.

Appeal from Superior Court, Asotin County; Truax, Judge.

Proceeding by the State, in the matter of the determination of the rights to the use of the waters of the Alpowa Creek and its tributaries in Garfield and Asotin Counties, against J. A Anderson and others. From judgment rendered, named defendant and others appeal. Affirmed.

Homer L. Post, of Asotin, C. A. McCabe and A. G. Farley, both of Pomeroy, Fred E. Butler and Ed. C. Butler, both of Lewiston Idaho, for appellants.

John H Dunbar, of Olympia, and Fred J. Cunningham, of Spokane, for the State.

BRIDGES J.

The purpose of this action was to adjudicate the water rights of the various riparian owners on and appropriators of water from Alpowa creek.

That creek is a small, nonnavigable stream, about 25 miles long, rising in the Blue Mountains, in the southern part of Garfield county, flows in an easterly direction through Garfield and Asotin counties and discharges into the Snake river. The average precipitation in the vicinity of the creek is about 18 inches per annum, 6 inches of which is during the irrigating season. The creek supplies sufficient water to irrigate all the lands except during the dry months of August and September. The main fight here is waged between what we may term the upper riparian owners on one side and those receiving water from what is known as the Houser irrigation ditch on the other. Most of the land irrigated from this ditch is nonriparian to Alpowa creek. The ditch takes its water from the creek about 2 miles above its mouth. The settlers on the upper stretches of the creek have from time to time constructed small ditches by means of which they have taken waters sufficient to irrigate small tracts of land. About 500 acres, all told, have been irrigated from the waters of this creek, of which about 340 acres obtain their waters from the Houser ditch. If the Houser ditch be given preference rights, then, during the dry season, there is often but little, if any, water for irrigating the other lands on the creek, and if such other lands be given preference over the Houser ditch lands, then the latter must greatly suffer during the dry season. Because of the conditions above noted and the further fact that for many years there has been much litigation over these waters, the state hydraulic engineer, acting under the authority of the state water code (Laws 1917, c. 117), instituted this proceeding for the purpose of finally adjudicating the rights of all the contending parties. The matter being referred to him as referee, he took testimony and made an elaborate report to the superior court, where the matter was pending. He divided the lands into 15 classes, the preference rights being indicated by the number of the class. He determined that those who took water from the Houser ditch should first be served, and they were put in the first class. The controversy here is largely between them and all the other owners. The trial court adopted the recommendations of the referee and entered a decree accordingly. The case has been elaborately and learnedly briefed and argued. We cannot find space here to note particularly all of the questions presented. We must limit our discussion to such points as seem to us to be most important and controlling.

1. The following facts are either without dispute or, in our opinion, conclusively shown: In 1877, the Houser ditch was constructed and at all times since water has been conveyed therein. From the beginning, some of these waters have been used for irrigating purposes on a part of the lands now authorized to use this ditch. The ditch was constructed before any of the appellants obtained their lands or initiated steps for that purpose, and was the first water to be taken from the creek for any use. The dates of settlement of the appellants run from 1877 to 1901, and the dates of the initiation of water rights other than such as belonged to them as riparian owners run from 1879 to 1908, except the appellant D. B. Palmer made his settlement in 1871, and at that time acquired his riparian rights. Mr. Palmer, however, did not appear in the case nor introduce any testimony. He has less than three acres under irrigation, and was by the court placed in the third class.

After the construction of the Houser ditch and in 1877, David H. Mohler and George W. Gunter posted a notice claiming 500 inches of water of this creek for milling and manufacturing purposes, and on the same date Mr. Gunter posted another notice claiming to be the owner of that ditch for agricultural purposes. A part of the waters of this ditch was used first for the operation of a mill and later used for several years in the operation of a placer mine on the banks of the Snake river, near the mouth of Alpowa creek. During all of these years some of the water was used for irrigating purposes on some of the lands now watered from the Houser ditch. Ultimately the milling and mining ceased, and since that time these waters have been used for purposes of irrigation. It is unnecessary to here trace the rights of the various owners placed in class 1 to obtain waters from the Houser ditch, because there appears to be no serious controversy about that matter. Additional and controverted facts will be mentioned as the discussion proceeds. It will be observed that the Houser ditch antedated all other diversions from the creek and all manner of riparian rights now vested in the appellants.

2. The doctrines of appropriation and riparian rights have been recognized in this state from an early date. Such rights are neither inconsistent nor antagonistic. The common-law rule of riparian rights has been stripped of some of its rigors, and is at least modified to the extent of appropriation upon public lands. In the Matter of Doan Creek, 125 Wash. 14, 215 P. 343, and cases cited. But riparian rights cannot be defeated by subsequent appropriation. Sander v. Bull, 76 Wash. 1, 135 P. 489, and cases therein cited. A bona fide appropriation of water for a beneficial use is superior to subsequently acquired riparian rights. Sander v. Bull, supra, and In re Doan Creek, supra, and cases therein cited. Riparian rights date from the first step taken to secure a title from the government. Benton v. Johncox, 17 Wash. 277, 49 P. 495, 39 L. R. A. 107, 61 Am. St. Rep. 912. An appropriation of water consists of an intention to appropriate followed by a reasonable diligence in applying the water to a beneficial use. Sander v. Bull, supra, and in re Doan Creek, supra, and cases cited. Prescriptive rights to water cannot be acquired until the owner of the water has been deprived of its use in such substantial manner and degree as to notify him that his right is being invaded. Sander v. Bull, supra. While the foregoing principles of law are thoroughly settled in this state, it is well to keep them in mind in the further discussion of this case.

3. The appellants strongly attack the preference rights given by the court to the Houser ditch. It is their argument that although it be conceded that this ditch in point of time preceded all other appropriations and riparian rights, yet there has not been reasonable diligence in applying the waters to irrigation and other useful purposes, and that the preference right given to that ditch should, in equity, be for the irrigation of only about 12 acres of land instead of nearly 340 as provided by the trial court. This question has been discussed by us in the following cases: Grant Realty Co. v. Ham, Yearsley & Ryrie, 96 Wash. 616, 165 P. 495; State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442, 126 P. 945; Pleasant Valley, etc., Co. v. Okanogan Power, etc., Co., 98 Wash. 401, 167 P. 1122; Sander v. Bull, supra; In re Doan Creek, supra. As to what may be considered reasonable diligence in putting appropriated waters to a beneficial use must depend to a large extent upon circumstances. The lands in question are sparsely settled and located far from any trade centers. The creek is small and its water insufficient for all purposes. The country in the vicinity has, because of its character and remoteness from civilization, developed very slowly. Yet...