Madson v. Spokane Valley Land & Water Co.

• Decision Date: 21 October 1905
• Citation: 40 Wash. 414,82 P. 718
• Court: Washington Supreme Court
• Parties: MADSON et al. v. SPOKANE VALLEY LAND & WATER CO.

82 P. 718

40 Wash. 414

MADSON et al. v. SPOKANE VALLEY LAND & WATER CO.

Supreme Court of Washington

October 21, 1905

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by R. Madson and Anna C. Madson against the Spokane Valley Land & Water Company. From an order, defendant appeals. Affirmed.

James T. Burcham and Happy & Hindman, for appellant.

Gallagher & Thayer, for respondents.

MOUNT C.J.

This action was begun by respondents to recover damages, and to restrain the appellant from maintaining a dam across an arm of Liberty Lake, in Spokane county. On the trial of the case the court below entered an order enjoining the use of the dam, and directing appellant within 60 days to commence an action for the condemnation of respondents' littoral rights in an about the arm of the said lake extending upon the respondents' premises. From that order this appeal is prosecuted.

The facts agreed to upon the trial are substantially as follows Liberty Lake is a body of water averaging about three-fourths of a mile in width, about 1 3/4 miles in length, and of an average depth of 18 feet. There is no navigable inlet or outlet to this lake. To the northwest from the main body of the lake, an arm of the lake extends over and across lands owned by respondents. These lands were acquired by a patent from the United States in October, 1886, before the adoption of the state Constitution. No part of this arm of the lake lying upon respondents' land has ever been navigable for any purpose. The appellant, or its predecessors in interest in the year 1899 entered upon the arm of the lake to the east of respondents' lands, between said lands and the main body of the lake, and constructed a dam across said arm, and erected head gates therein, and to the west of respondents' lands constructed a canal from the arm of the lake to lands to be irrigated. The effect of the dam and the said canal is to withdraw the water of Liberty Lake entirely from respondents' premises, so that respondents' access to the water on their land has been entirely destroyed, except for water which is permitted to run through the head gates during the irrigating season. The said dam and canal of the appellant were completed in the spring of the year 1903. In constructing said dam and canal and head gates, the appellant spent large sums of money, aggregating about $50,000. The respondents had knowledge that appellant was doing said work and after the completion thereof respondents, in the year 1904, cultivated three acres fo the land drained by said canal. The appellant and its predecessors in interest have at all times herein mentioned been an irrigation company under the laws of this state, and have appropriated the waters of Liberty Lake for purposes of irrigation, and have actually been furnishing water for irrigation of lands since 1901. It is now under contract to furnish water for irrigating 640 acres.

Appellant makes two contentions upon this appeal, as follows: (1) That respondents by their conduct have lost all right to any relief on the ground of estoppel, or, if not to all relief at least to injunctive relief, and on this last assumption should have been granted only damages for trespass; (2) that, under the laws of this state, the respondents have no legal right to have the waters of Liberty Lake remain in their natural condition, and hence any harm they may have suffered by the withdrawal of the water from their riparian land was damnum absque injuria.

Upon the first question, the only facts which in any manner tended to create an estoppel are that the respondents knew that appellant was building the dam and constructing the head gates and canal, and expending large amounts of money; and that the next year after the works were completed respondents cultivated about three acres of the land drained by said canal. None of the work of building the dam or head gates or canal was upon respondents' lands, and it is not shown that respondents knew that these structures would entirely drain the water from their lands. It is fair to presume, in the absence of such showing, that respondents supposed the head gates were so arranged, or would be so arranged, as to leave the water upon their landss in its natural condition and work no damage to respondents. This court, in Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 38 P. 147, 26 L. R. A. 425, in discussing this question, quoted with approval the definition of estoppel as laid down in New York Rubber Co. v. Rothery, 107 N.Y. 310, 14 N.E. 269, 1 Am. St. Rep. 822, as follows: 'To constitute it [an estoppel], the person sought to be estopped must do some act or make some admission with an intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, and which act or admission is inconsistent with the claim he proposes now to make. The other party, too, must have acted upon the strength of such admission or conduct.' None of the elements of estoppel as thus...