Lawrence v. Southard

• Decision Date: 19 November 1937
• Docket Number: 26715.
• Citation: 192 Wash. 287,73 P.2d 722
• Parties: LAWRENCE v. SOUTHARD.
• Court: Washington Supreme Court

73 P.2d 722

192 Wash. 287

LAWRENCE v. SOUTHARD.

No. 26715.

Supreme Court of Washington, En Banc.

November 19, 1937

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Action by Philip Lawrence against William K. Southard. Judgment for defendant, and plaintiff appeals.

Affirmed.

B. E McGregor, of Prosser, for appellant.

John C Hurspool, of Walla Walla, G. W. Hamilton, of Olympia, and Fred J. Cunningham, of Spokane, amici curiae.

Stephen E. Chaffee, of Sunnyside, for respondent.

MILLARD Justice.

In January, 1937, the plaintiff entered into a contract to purchase from the defendant a tract of land 'together with a perpetual water right for the use of sufficient amount of water to beneficially irrigate said land and to the same extent as has heretofore been used thereon for irrigation purposes' in Yakima county. This land in its natural state is arid and has no value, but, when supplied with a sufficient amount of water to beneficially irrigate it and to the same extent as has been used thereon for irrigation purposes since 1911, the land is very productive and valuable for agricultural purposes. The land in question is within the Sunnyside division of the Yakima reclamation project which was approved by the Secretary of the Interior in 1906 pursuant to the Reclamation Act of 1902 (32 Stat. 388). Under the provisions of that act the Secretary of the Interior caused reservoirs to be constructed for impounding the waters of the Yakima river, which is a nonnavigable stream, and constructed an irrigation system to deliver the natural flow and impounded water to this tract and to other lands within the Sunnyside division.

Pursuant to the regulations promulgated by the Secretary of the Interior, the then owner of the tract of land involved in this cause, on August 1, 1911, made an application for a water right which among other things provided: 'The quantity of water to be furnished hereunder shall be 3 acre feet of water per annum per acre of irrigable land, as aforesaid, measured at the land; or so much thereof as shall constitute the proportionate share per acre from the water supply actually available for the lands under said project; Provided, That the supply furnished shall be limited to the amount of water beneficially used on said irrigable land: * * *'

It was further provided that the applicant would pay the construction charges in the sum of $52 an acre, which charges were made a lien against the land. A certificate of filing water right application was issued to the applicant. That certificate provided that the 'applicant shall be entitled to receive, subject to the payment of the annual charges for building, operation and maintenance, three acre feet of water per annum per acre of irrigable land herein described, or so much thereof as shall constitute the proportionate share per acre from the water supply actually available for the lands under said project; provided, that the supply furnished shall be limited to the amount of water beneficially used on said irrigable land.'

In the year 1911 the land was put under cultivation and at all times subsequent thereto the Bureau of Reclamation caused to be delivered to the land a sufficient amount of water to beneficially irrigate the land. On October 17, 1930, the Secretary of the Interior promulgated a public notice which provided that 'during the year 1931 and subsequent years, until further notice, water deliveries in that district will be limited to three (3) acre feet per irrigable acre per year, as specified in the said contracts and applications.' The notice further provided, 'that so long as there is surplus stored water available not required to meet the contract obligations of the United States to other parties, water in excess of three (3) acre feet may be rented by water users.' This notice, of course, had reference to the land described in the sale contract of the plaintiff and the defendant.

During the past 15 years the Bureau of Reclamation has delivered to the land involved in this action for beneficial use thereon the following amounts of water: 1920, 4.05 acre-feet; 1921, 4.99 acre-feet; 1922, 3.40 acre-feet; 1923, 5.03 acre-feet; 1924, 4.97 acre-feet; 1925, 4.67 acre-feet; 1926, 4.45 acre-feet; 1927, 4.10 acre-feet; 1928, 4.13 acre-feet; 1929, 4.32 acre-feet; 1930, 4.80 acre-feet; 1931, 3.83 acre-feet; 1932, 3.50 acre-feet; 1933, 5.35 acre-feet; 1934, 5.90 acre-feet; 1935, 4.42 acre-feet; 1936, 5.102 acre-feet. The average for the period is 4.3 acre-feet.

Plaintiff brought this action to rescind the real estate contract for the sale to him by defendant of the land in question for the reason that the defendant did not have title to a water right for the use of sufficient amount of water to beneficially irrigate the land and to the same extent as has heretofore been used thereon for irrigation purposes.

Defendant answered, praying that the contract be specifically enforced and that he recover an additional payment then due upon the contract. The cause was tried to the court. Both parties moved for judgment on the pleadings. The trial court found that there was appurtenant to the land described in the complaint a perpetual water right for the use of a sufficient amount of water to beneficially irrigate the land and to the same extent as has heretofore been used thereon for irrigation purposes. Judgment was accordingly entered in favor of the defendant. The plaintiff has appealed.

Whether the respondent is the owner of a perpetual water right for the use of a sufficient amount of water to beneficially irrigate the tract of land which he has contracted to sell to the appellant and to the same extent as has heretofore been used on that land for irrigation purposes is the only question presented by this appeal. If that question is answered in the affirmative, respondent is entitled to recover, as there has not been a breach of the contract.

We are clear that there is appurtenant to the land in question a perpetual water right for the use of a sufficient amount of water to beneficially irrigate that tract of land and to the same extent as has heretofore been used on that land for irrigation purposes.

In April, 1891, the Northern Pacific Yakima & Kittitas Irrigation Company appropriated 1,000 cubic feet per second of the water flowing in the Yakima river for the purpose of irrigating lands in Yakima county. This company commenced the construction of the Sunnyside Canal and the distribution of water to land for agricultural purposes. The canal and water appropriations were acquired in 1900 by the Washington Irrigation Company which continued the construction of the canal and the distribution of the water. In 1906, pursuant to the Reclamation Act of 1902, the United States acquired the canal, water appropriations and irrigation system, and the Secretary of the Interior approved the Sunnyside division of the Yakima project. Subsequently, the United States completed the construction of the canal and irrigation system and also constructed storage reservoirs of ample capacity to supply the land described in appellant's complaint and all other lands under gravity flow in the Sunnyside division of the Yakima project, with, as respondent alleged, 'the amount of water necessary to beneficially and successfully irrigate the same and the amount of water required for crops growing on said land, and also the amount of water required to furnish pumping units and Benton Extension, with the contract allowance of water to said districts.'

Prior to the completion of the irrigation system and preceding the construction of the storage reservoirs to impound the water to supplement the natural flow of the Yakima river, the Secretary of the Interior, in 1906, required the land owners in the project to incorporate the Sunnyside Water Users Association and for this association to enter into a contract with the United States. The contract entered into, May 7, 1906, between the association and the United States required, as a condition precendent to the right to the use of water from the works to be constructed, all land owners to subscribe to the contract and become members of the association. Section 3 of the contract contains the following provision: '3. That the aggregate amount of such rights to be issued shall, in no event, exceed the number of acres of land capable of irrigation by the total amount of water available for the purposes being (1) the amount now appropriate by the shareholders of the said association, and (2) the amount to be delivered from all sources in excess of the water now appropriated; and the Secretary of the Interior shall determine the number of acres so capable of such irrigation as aforesaid, his determination to be made upon due and expert consideration of all available data, and to be based upon and measured and limited by the beneficial use of water.'

The contract also provides that the land owners were to 'initiate rights to the use of water from the said proposed irrigation works,' which rights were to be and 'continue to be, forever appurtenant to designated lands owned by such shareholders.' The association guaranteed full payment of the cost of construction of the irrigation works, which cost was to be apportioned by the Secretary of the Interior and paid by the land owners. Paragraph 10 of the contract provides, relative to the right to the use of the water where the right has vested: 'That in all the relations between the United States and this association and the members of the association the rights of the members of the association to the use of water where the same have vested, are to be defined, determined, and enjoyed in accordance with the provisions of the said act of Congress and of other acts...