Kalez v. Spokane Valley Land & Water Co.

• Decision Date: 28 February 1906
• Citation: 42 Wash. 43,84 P. 395
• Court: Washington Supreme Court
• Parties: KALEZ et al. v. SPOKANE VALLEY LAND & WATER CO.

84 P. 395

42 Wash. 43

KALEZ et al. v. SPOKANE VALLEY LAND & WATER CO.

Supreme Court of Washington

February 28, 1906

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Matrin J. Kalez and others against the Spokane Valley Land & Water Company. From a judgment in favor of defendant plaintiffs appeal. Affirmed.

Robertson Miller & Rosenhaupt, for appellants.

Allen &amp Allen and Happy & Hindman, for respondent.

ROOT, J.

Appellants are the owners of a leasehold interest in certain lands bordering upon Liberty Lake, a body of water 1 1/2 miles long by 3/4 of a mile wide, situated in Spokane county, which lake is much frequented as a pleasure resort. Appellants acquired possession in October, 1903, under a five-year lease of the premises, which extend about a mile along the side of said lake, agreeing to pay a rental of $1,000 per year. It was the purpose of appellants to let bathhouses, boats, and otherwise contribute to the demands of pleasure seekers visiting said lake. There was a sandy beach which made the lake especially desirable for bathing. Appellants expended some $5,000 preparing the resort. The land leased to the appellants was patented by the government in 1889 to one Stephen Liberty, from whom the title descended to the lessors of appellants. The respondent is the successor in interest to one W. L. Benham, who in 1889 took the necessary legal proceedings to appropriate the waters of said lake for irrigation purposes, claiming said waters to the extent of 200 cubic feet per second. Benham and his successors intended said waters to irrigate a tract of land known as 'Greenacres,' situated about 10 miles from Spokane. Some 450 acres are now irrigated thereby, and it is claimed that 2,000 acres are capable of being irrigated by means of this water. The company has spent some $50,000 in constructing ditches and improving the lands referred to. It appears that there is no other means of irrigating said lands, and that the same would be practically worthless without this water. The respondent has gates and a dam at the place of intake, by means of which it stores the water during the winter months, and thereby increases the amount at its disposal during the summer months, when irrigation is needed. Appellants claim that these gates and dam have the effect of raising the water in the lake beyond its normal condition and thereby injuring their property, and that in the summer time so much water is withdrawn from the lake that their business is materially interfered with, in that the water is so much lowered that much of the sandy beach cannot be used to advantage by bathers, but they are obliged to go further into the lake, where the bottom is stony and disagreeable to walk upon. Appellants pray that respondent may be enjoined from maintaining or constructing any dam for the purpose of manipulating the waters of said lake, and from in any way interfering with said waters, and ask for damages. The trial in the lower court resulted in a judgment of dismissal in favor of respondent. From this an appeal is taken.

Respondent claims, and the court found, that this lake was navigable. Appellants claimed that in this the court was in error. It was admitted that there was operated upon said lake one steamboat about 40 feet in length, being used for the purpose of carrying visitors and...