Lechman v. Mills

• Citation: 91 P. 11,46 Wash. 624
• Parties: LECHMAN v. MILLS et al.
• Decision Date: 26 July 1907
• Court: United States State Supreme Court of Washington

91 P. 11

46 Wash. 624

LECHMAN v. MILLS et al.

Supreme Court of Washington

July 26, 1907

Appeal from Superior Court, Kittitas County; H. B. Rigg, Judge.

Action by Thomas Lechman against J. L. Mills and others to enjoin the maintaining of a canal. From a judgment for defendants plaintiff appeals. Affirmed.

John B. Davidson, for appellant.

Carroll B. Graves and J. H. McDaniels, for respondents.

HADLEY C.J.

This action was brought to enjoin the defendants from keeping and maintaining a canal on and across certain lands which the plaintiff claims to own, and also from overflowing with water any portion of said lands by means of said canal together with dams or dikes. Following largely the order of statement found in the brief of respondents, we believe the following is a fair statement of the facts in the case: In the year 1879 one Briggs was the occupant but not the owner of the land over which this controversy exists, and which land the plaintiff now claims to own. At that time it was believed the land would be included within the limits of the grant to the Northern Pacific Railroad Company when those limits should be determined by the adoption of the line of definite location of the road, such adoption not then having been made. Briggs expected to purchase the land from the railroad company as soon as the latter acquired the title and was in position to make a sale and conveyance; but the land was then a part of the public domain, and Briggs was a mere occupant. While such was the situation, Mr. Mills, one of the defendants in this action, constructed a water ditch and pond on part of said land to serve the purpose of power for the operation of a sawmill. The ditch led from the Yakima river down to a depression upon the land now claimed by the plaintiff, and by means of dikes and dams together with the natural topography of the ground, the water was impounded in a lake or pond, a part of the land so flooded being a part of the land now claimed by the plaintiff. The lower end of the pond was upon land owned by Mills, and the water which flowed into the pond was released through an outlet upon the land of Mills. Mills also constructed a sawmill, and the water so impounded developed the power for the operation of the mill. Prior to the construction of the ditch, reservoir, and mill said Mills entered into an agreement with Briggs, the real nature of which is in issue.

The plaintiff contends that it was a mere permission or revocable license to Mills to construct and maintain the ditch and reservoir. The defendants contend, and the trial court found that it was a verbal grant from Briggs to Mills of the right to construct and maintain said works upon the land. It is not disputed that Briggs at that time and as a part of the agreement undertook and promised to execute a deed as soon as he should obtain title from the railroad company. But the plaintiff claims that Briggs, in making the agreement, did not intend to give a deed without first being paid a further consideration in money, no amount being stated, but the amount to be subsequently fixed by further agreement. The defendants contend that this verbal agreement contemplated, so far as a verbal agreement could, an absolute and perpetual grant. Mills has continued to operate his sawmill by means of the water so stored from the time of said construction up to the present time. In 1882 he granted to Hutchinson and Dreisner a one-half interest in the said power for the purpose of operating a flourmill which was then by them erected. The said flourmill, together with the said conveyed interest in the water power, has by mesne conveyances passed to the defendants Kendall and Mack. The Northern Pacific Railroad Company deeded the land to Briggs in 1887, and he continued to own and occupy all of the land, except that occupied by the canal and reservoir, until October, 1898. During all of said time the defendants and their predecessors in interest continued to maintain the canal and reservoir and to impound the water therein and to utilize the power for the operation of said mill plants. In October, 1898, Briggs executed to the Sullivan Savings Institution an instrument in the form of a deed purporting to convey to said grantee the title to said land. The plaintiff derives his title through said Sullivan Savings Institution. This action was brought in January, 1906, to enjoin the defendants as aforesaid from further maintaining the ditch and reservoir. The cause was tried before the court without a jury, and judgment was rendered for the defendants to the effect that they have a perpetual easement against the plaintiff and all persons claiming or to claim through or under him. The plaintiff has appealed.

Finding No. 2, as entered by the court, is as follows: 'That just prior to the construction of said works the said defendant Mills, entered into an agreement with one Wilkin Briggs, who was then the...