Madison v. McNeal
| Decision Date | 16 February 1933 |
| Docket Number | 23806. |
| Citation | 19 P.2d 97,171 Wash. 669 |
| Parties | MADISON et ux. v. McNEAL et al. McNEAL et al. v. TIFFANY, State Hydraulic Engineer, et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, Kitsap County; W. M. Nevins, Judge.
Action by M. Madison and wife against R. A. McNeal and wife, and others, and an appeal by R. A. McNeal and wife and others from an order of R. K. Tiffany, as State Hydraulic Engineer granting a water permit to M. Madison and wife. The two causes were by stipulation consolidated for trial in the lower court and for hearing in the Supreme Court. From the judgment, R. A. McNeal and wife and others appeal.
Reversed.
H. E. Gorman, of Bremerton, for appellants.
Ray R Greenwood, of Bremerton, for respondents.
These two causes were by stipulation consolidated for trial in the lower court and for hearing in this court. They involve a controversy over the right of the Madisons to a portion of certain waters produced by springs and dammed upon the property of McNeal and Wyatt, and to an alleged easement in the pipe lines used in the delivery of such water.
The first entitled action is an assertion of the rights to the water and easement premised upon prescription and also upon a permit issued and granted by the state supervisor of hydraulics. The second action is an appeal to the superior court from the order of the state supervisor of hydraulics granting the permit above mentioned.
At the trial the lower court sustained the contentions of plaintiffs in the first cause, granting them the right to .05 c. f. s of water and an easement by prescription in the pipe lines and also by virtue of the permit above mentioned, and further enjoined defendants from molesting or interfering with plaintiffs in exercising such rights.
The second action, or appeal, was dismissed. Both causes have been appealed.
The facts are substantially these:
In about 1910 one Bourg became the owner of several tracts of land to the west of Dye's inlet in Kitsap county, one of which, upon which was his home, fronted on this body of water. On the western portion of one of these tracts was a small stream formed from some springs, most, if not all, of which were on the Bourg property. In order to utilize this spring water for his home, in 1912 Bourg erected a dam across the stream, and from the reservoir so created laid some fourteen hundred feet of five-inch wooden pipe, extending easterly to the rear of his house. The water so conveyed was used for domestic and irrigation purposes. In 1914 the Madisons purchased from one Blackstone a tract of land adjoining the Bourg water front property on the north, and in the following year built a home thereon. Preceding the construction of the house, Madison securing permission from Bourg, made a connection with the Bourg water main at the rear of his house, with a three-quarter inch pipe, using the water for his own house, garden, and stock. In August, 1916, Bourg left with Madison a proposed written agreement, by the terms of which Bourg gave permission to Madison to connect a three-quarter inch pipe to the water main and have sufficient water for household purposes only, except by special permission during certain times of the day and certain seasons of the year to be specified by Bourg. The agreement also provided that at the end of one year Madison had the option to buy a permanent water right for $250, with an annual fee of $6 for maintenance, or he could pay $30 a year as water rental. It further granted Madison the privilege of using one hose nozzle or one automatic sprinkler for garden or lawn at times when the water supply was sufficient, Bourg to be the sole judge. This agreement was never signed by Madison nor does it seem to have been discussed thereafter. In 1919 Madison sunk a well on his property, believing that a change in water would be helpful to an ailing child, but continued to use the water from the Bourg property for outside purposes. In 1920 he installed a Delco lighting system, connecting it with the pipe from the five-inch main. In June, 1921, the Madisons purchased a nine-acre tract from Bourg, which was northwest of the other Madison tract. The course of this five-inch pipe line extended over the southern end of this tract, but the deed to Madison reserved to the grantor 'the right to use, reconstruct and maintain pipe lines as now laid over a portion of the land conveyed.' This deed also granted and conveyed. 'Unto the grantee the right to build, repair, rebuild and maintain a dam across the creek which flows in an easterly direction * * * on the land of the grantors at any place below the dam which the grantors herein have built and now maintain across said creek * * * and the right to lay, maintain, operate, repair and remove pipes from said dam over and across the land of grantors for the purpose of conveying such impounded water to the land of the grantee in lot 4.' (The water front property.)
This nine-acre tract was riparian to the stream below the dam of grantors. Thereafter McNeal and Wyatt acquired title to the remaining property of Bourg and all of the property over which the five-inch pipe line was laid, except the nine-acre tract purchased by Madison in 1921.
While McNeal was living in the house formerly occupied by Bourg in 1922, Madison made a new connection with the five-inch main by means of a two-inch pipe extending from the main a little to the southeast of the southwest corner of his home tract, the two-inch main being laid to his house a distance of several hundred feet. This two-inch pipe was joined to the three-quarter inch pipe Before mentioned, which extended north from the five-inch main from the rear of McNeal's house.
In 1922, or 1923, a highway was constructed in front of McNeal's house. As this highway would necessitate the temporary removal of a portion of the five-inch main, McNeal secured the consent of Madison to connect a one and three-quarter inch pipe to the east end of the two-inch pipe, and the use of the five-inch pipe at the highway was temporarily abandoned during the road construction, but resumed thereafter. In 1925 Davis, one of the defendants in the first cause of action, purchased the McNeal home. In the spring of 1929 McNeal and Wyatt planted holly, and they objected thereafter to Madison using the water from the five-inch main, and threatened to, and in fact did, shut this water off. Thereupon Madison made application for and secured a permit from the state supervisor of hydraulics for .05 c. f. s. Thereafter, within the statutory time, an appeal was taken from the order granting the permit, which constitutes the second action. In the summer of 1929, McNeal tore up some of the pipe leading from the five-inch main to Madison's property, and in the first cause Madison secured a temporary injunction and show-cause order to prevent the further interference with his alleged right to use the water.
It is first contended by appellants that the Madison complaint is insufficient to give respondents the relief granted by the decree, because such complaint does not state a cause of action, or warrant the relief prayed for, it being argued that water in mains for distribution and the pipes laid in the ground of another, connected to a distributing main, are personal property, and not subject to an action for possession by adverse user.
As a general principle of law, water, after it has been diverted from a natural stream and taken into a reservoir and distributing pipes, takes the character of personal property, the ownership of which rests in the appropriator, although some authorities make exceptions. 2 Kinney on Irrigation and Water Rights (2d Ed.) p. 1340, states:
To the same effect is 1 Wiel on Water Rights (3d Ed.) § 35, p. 33.
But it is equally well established that the right to the flow of water to be used upon land, whether in its natural state or through pipes from a reservoir, is treated as an incorporeal hereditament, as...
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...appurtenant to the land, and therefore realty, is declared by our statutes and prior decisions of this court." Madison v. McNeal, 171 Wash. 669, 19 P.2d 97, 99. "Water is sometimes held to be real estate, and to pass by grant as the right of a riparian owner to the natural flow of a stream ......
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Table of Cases
...253 P.2d 427 (1953): 19.2(10), 19.2(12)(e) Mack v. Eldorado Water Dist., 56 Wn.2d 584, 354 P.2d 917 (1960): 11.3(2)(f) Madison v. McNeal, 171 Wash. 669, 19 P.2d 97 (1933): 11.5(1),11.5(1) Mally v. Weidensteiner, 88 Wash. 398, 153 P. 342 (1915): 11.2(3)(a) Manello v. Bornstine, 44 Wn.2d 769,......
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§ 11.5 - Transfers of a Title and Changes to Water Rights
...in a water right, is real property, and it is so treated under all the rules of law appertaining to such property." Madison v. McNeal, 171 Wash. 669, 675, 19 P.2d 97 (1933). Thus, the general rule is, absent express reservation, the voluntary conveyance of title to lands includes the transf......