Kendall v. Joyce

• Decision Date: 14 February 1908
• Parties: KENDALL et ux. v. JOYCE et al.
• Court: Washington Supreme Court

93 P. 1091

48 Wash. 489

KENDALL et ux. v. JOYCE et al.

Supreme Court of Washington

February 14, 1908

Appeal from Superior Court, Okanogan County; R. S. Steiner, Judge.

Action by John Kendall and wife against Bill Joyce and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

E. W Taylor, J. W. Graham, and Harold Preston, for appellants.

A. W Barry, for respondents.

RUDKIN J.

This was a controversy between two landowners over the right to use the waters of Johnson creek, a small stream flowing into the Okanogan river, in Okanogan county, for irrigation purposes. The rights of the respective parties are predicated upon the following facts: In the year 1895 the plaintiff John Kendall, a citizen of the United States above the age of 21 years, settled upon lots 3, 4, and 5, and the S.W. 1/4 of the S.E. 1/4 of section 25, and lot 1 and the N.W. 1/4 of the N.W. 1/4 of section 36, township 35 N., range 26 E. W. M. under the homestead laws of the United States. The lands embraced within the settlement were at that time unsurveyed public lands of the United States. Kendall continued to occupy and cultivate his claim from date of settlement until September 11, 1903, at which time he received a homestead patent therefor. Commencing with the year 1895 he diverted the waters of Johnson creek for the purpose of irrigating his orchard and meadow lands and for stock and domestic purposes. He increased the amount of his cultivated land from year to year until 1905, when he had 55 or 60 acres under Irrigation and cultivation. The testimony showed that he proceeded in good faith and with reasonable diligence in bringing his land under cultivation and in applying the waters diverted to beneficial uses. In the year 1887 one Philip Perkins settled upon lands now owned by the defendants. On the 9th day of October of that year Perkins filed a notice of claim of water right with the county auditor of Okanogan county, claiming 500 inches of water from Johnson creek at a certain point, and an additional 500 inches at a certain other point. He continued to occupy the claim until about the year 1889, when he was succeeded by one Warren Perkins. The latter occupied the claim until 1897, when he was succeeded by William Maretta, and Maretta in turn was succeeded by the defendant Joyce in the year 1899. Joyce has since derived title to the original Perkins claim in part under the homestead law and in part by scripping. Prior to the year 1897 not to exceed 5 or 6 acres of the Joyce lands were irrigated or cultivated. Under these facts the court below awarded to the defendants a prior right to use the waters of the creek to the extent of seven miners' inches, measured under a four-inch pressure, to the plaintiff one-third of one cubic foot per second of time, subject of the prior right of the defendants to the seven miners' inches, and enjoined the defendants from diverting the waters of the creek to the injury of the plaintiffs. From this judgment the defendants have appealed.

Under the facts stated, the respondents having diverted the waters of the creek in 1895 and applied the same to beneficial uses with reasonable diligence, their rights relate back to the date of their original appropriation. Offield v Ish, 21 Wash. 277, 57 P. 809; Longmire v. Smith, 26 Wash. 439, 67 P. 246, 58 L. R. A. 308. It is equally apparent that Perkins acquired no rights by filing the notice of claim of water right in 1887. There was then no law authorizing such a notice. The notice was too indefinite to subserve any purpose, and the notice was not followed by a diversion of the water and its application to beneficial uses within a reasonable time. If, therefore, the rights of the parties depend upon the law of prior appropriation, it is manifest...