Mack v. Eldorado Water Dist., 35251

• Citation: 354 P.2d 917,56 Wn.2d 584
• Decision Date: 04 August 1960
• Docket Number: No. 35251,35251
• Court: United States State Supreme Court of Washington
• Parties: Lloyd M. MACK and Jessie M. Mack, his wife, Appellants, v. ELDORADO WATER DISTRICT, a municipal corporation, Respondent.

Page 584

56 Wn.2d 584

354 P.2d 917

Lloyd M. MACK and Jessie M. Mack, his wife, Appellants, v. ELDORADO WATER DISTRICT, a municipal corporation, Respondent.

No. 35251.

Supreme Court of Washington, En Banc.

Aug. 4, 1960.

Garland, Garland & Bishop, by Marion Garland, Jr., Bremerton, for appellants.

Merlek & Cook, by Farrell E. Cook, Bremerton, for respondent.

FINLEY, Judge.

Appellants, private owners of a 30-acre tract of unimproved land located in Kitsap County, are holders of two permits, issued by the State Supervisor of Hydraulics, authorizing the appropriation of surface water from a certain unnamed stream. Respondent water district owns a 40-acre tract immediately to the west of appellants' tract, and also holds two permits authorizing the appropriation of waters from the same stream. The stream consists of two branches (hereinafter referred to as the north branch and the south branch, respectively). These branches originate on respondent's land, converge near the southeast corner of respondent's land into a single water course which flows in a generally southeasterly direction toward Puget Sound, passing through the southern portion of appellants' land.

The first of appellants' two permits (authorizing the appropriation of an amount of water not to exceed .02 cubic feet per second) was issued on or about July 26, 1928. Respondent's two permits (surface water certificates No. 1596 and No. 1833, authorizing appropriation of .10 cubic feet per second and .05 cubic feet per second, respectively) appear to have been issued sometime subsequent to July 26, 1928, but prior to the year 1956. As matters stood prior to 1956, the appropriated waters of the stream were being diverted for domestic purposes in the following manner: (1) In the case of the .02 cubic feet per second, covered by appellants' permit, by means of a small wooden dam, located on the north branch of the stream; thence, through a two-inch pipeline across respondent's land and onto appellants' property; (2) in the case of the total of .15 cubic feet per second, covered by respondent's two permits, by means of two dams--one located on the north branch of the stream at a point some 20 feet downstream from appellants' dam; the other located on the south branch of the stream. It is further to be noted that appellants' rights, or right of way, respecting the small wooden dam and the two-inch pipeline, had been perfected by adverse user since 1913.

Appellants' second permit (authorizing the appropriation of an amount of water not to exceed .11 cubic feet per second) was issued by the supervisor on November 21, 1956. Thereafter, appellants entered upon respondent's land, without the latter's consent, and constructed a concrete dam at a point on the north branch of the stream, about 5 feet below the existing wooden dam and some 15 feet upstream from respondent's diversion point.

After construction of the aforesaid concrete dam, appellants commenced the instant action, seeking to obtain a right to maintain the new dam and to replace the old two-inch pipeline with a new four-inch line. In their petition appellants cited, as authority for their action, RCW 90.04.030, which, insofar as is material, reads:

'Eminent domain. The beneficial use of water is hereby declared to be a public use, and any person may exercise the right of eminent domain to acquire any property or rights when necessary for the storage of water for, or the application of water to, any beneficial use, including the right to enlarge existing structures employed for the public purposes mentioned in this title, and use the same in common with the former owner, and including the right and power to condemn an inferior use of water for a superior use. In condemnation proceedings the court shall determine what use will be for the greatest public benefit, and that use shall be deemed a superior one: * * * Such property or rights shall be acquired in the manner provided by law for taking private property for public use by private corporations.'

After a trial on the merits, the trial judge rendered a memorandum decision, stating that respondent's use of the water from the stream was superior to appellants' use. He further entered findings of fact to the effect that appellants' new concrete dam (located upstream from respondent's diversion point) was 'destroying * * * [respondent's] priority in the waters of said stream and endangering their municipal water system.' The trial judge further declared

'That the stream, heretofore identified as the north branch, after leaving respondent's diversion works, joins with the south branch and continues some 450 feet more or less where it enters upon petitioner's land; that said stream thereafter flows across petitioner's land and eventually flows into Puget Sound; that the height above sea level, at which said stream enters onto petitioner's land, is such that the water can easily be utilized by petitioner for a water...