Magee v. Risley

• Decision Date: 09 November 1914
• Docket Number: 11545.
• Citation: 82 Wash. 178,143 P. 1088
• Parties: MAGEE v. RISLEY et al.
• Court: Washington Supreme Court

143 P. 1088

82 Wash. 178

MAGEE v. RISLEY et al.

No. 11545.

Supreme Court of Washington

November 9, 1914

Department 1. Appeal from Superior Court, Okanogan County; E. K Pendergast, Judge.

Suit to quiet title by William Magee against J. M. Risley and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Reeves Crollard & Reeves, of Wenatchee, for appellants.

J. W Faulkner and Smith & Gresham, all of Conconully, for respondent.

ELLIS J.

This is an action to quiet title to certain water rights and an easement for a right of way in connection therewith in and over the defendants' land, and to enjoin any interference therewith by the defendants. The court made findings and entered a decree, in the main, in favor of the plaintiff. The defendants have appealed.

The first assignment of error is based upon an order sustaining a demurrer to matter set up in the answer by way of affirmative defense. The other assignments of error are predicated solely upon the findings of the trial court incorporated in the decree, and on the decree itself. The evidence is not before us; no statement of facts being presented.

The findings of fact, though extremely minute and lengthy, covering 18 closely typewritten pages, and doubtless clear enough to the trial court, are hardly intelligible to us without the aid of the evidence. All of the findings, so far as they describe the local situation, are made with reference to certain maps and exhibits and certain indicated points thereon, which maps and exhibits are, of course, not before us. We shall not attempt, therefore, to set out these findings even in their entire substance. We shall content ourselves with stating briefly as may be the things found with sufficient clearness in themselves for a discussion of the principal contentions of the appellants as directed thereto. In 1888 one Francis M. Wright settled upon certain lands in Okanogan county, then unsurveyed, including 80 acres of land now owned by the respondent, and referred to in the findings as the Magee 80. On March 5, 1889, Wright married. His wife resided with him on the land in question until November 25, 1896, when she deserted him, left Okanogan county, and has never returned. The land upon which Wright had settled remained unsurveyed until November 9, 1896, but was opened to homestead settlement in the year 1886, upon the opening of the former Columbia Indian reservation, embracing all of the lands belonging to all the parties here involved. On May 16, 1898, a patent was issued by the United States government to Wright upon his homestead entry. The patent was recorded in the office of the county auditor of Okanogan county on June 5, 1905. In September, 1900, Wright commenced an action for divorce against his wife, resulting in findings by the court that he was entitled to a decree of absolute divorce and the custody of their two minor children, and ordering the entry of a decree accordingly. These findings were filed March 15, 1902, but, at the time of the commencement of the present action, no formal decree had been entered thereon. On December 19, 1906, Wright conveyed the Magee 80 to one Johnson, by a deed describing himself and acknowledged by him as 'an unmarried man.' This deed was recorded June 24, 1907. On July 16, 1908, Johnson and wife conveyed the Magee 80 to the respondent, William Magee. This deed was recorded July 27, 1908. On July 22, 1908, Wright conveyed to the respondent, Magee, by deed, describing himself and acknowledged by him as 'an unmarried man,' the water rights and right of way over the appellants' land, which are the subjects of controversy in this action. This deed was recorded August 17, 1908. The court found that Wright's wife never at any time filed any claim of community interest in the lands in question, pursuant to statute (Rem. & Bal. Code, § 8772), or in any manner attempted to comply with that statute. It was stipulated in open court that the respondent, William Magee, was an innocent purchaser, and the court found that he was a bona fide purchaser, within the meaning of the above-mentioned statute, and is therefore to be deemed and held the legal and equitable owner in fee simple of the lands in question. The court found that Wright, during his possession of the land known as the Magee 80, and before any right or interest had been acquired by the appellants in the lands now owned by them, had appropriated, diverted, and used the waters in controversy, and had appropriated a right of way across the appellants' land for conveying the water onto the Magee 80, and had used it continuously thereon for irrigating purposes. The respondent's claim to the water and right of way is through this appropriation by Wright, under section 2339 of the Revised Statutes of the United States (U. S. Comp. St. 1913, § 4647), providing for a recognition by the courts of vested and accrued water rights, and section 2340 (4648) declaring:

'All patents granted, or pre-emptions or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.'

The court found facts indicating that the lands owned by the appellants in which the water rights were claimed, and over which the right of way used in connection therewith ran, were public lands of the United States at the time of Wright's original appropriation. The water rights involved consist (1) of the waters of a small lake called Ward lake, located on the appellants' land; (2) certain waters flowing in a draw running from near the lake across the appellants' meadow land to the beginning of the ditch leading onto the Magee 80, which waters flow from certain swamp lands in the appellants' meadow; (3) certain springs on the appellants' land located along the draw above mentioned; and (4) two springs, one called the milkhouse spring, located on appellants' land near what is known as the Riley house, and another on the appellants' land near the north boundary of the Magee 80. The court found that the respondent, Magee, is entitled to the water, in given quantities measured in miner's inches under a four-inch pressure, from each of these sources, save that last mentioned, by and through the appropriation by his grantor, Wright, and is the owner, and entitled to the use and enjoyment, of the first water right in and to these waters during the irrigating season between given times each year, together with a right of way across the appellants' land from Ward Lake to the Magee 80 upon the route formerly used by Wright. The findings indicate that Wright's use of the water had been by carrying it through the draw on the surface of the ground to a ditch leading onto the Magee 80, and, in its passage across the appellants' land and meadow, much of it spread out over the meadow. The waters of the milkhouse spring and the other spring near the north boundary of the Magee 80 were found not to be included in any of the water rights which passed from Wright to the respondent Magee. The court found that, while the respondent has been the owner of the water rights above mentioned, the appellants Risley and Riley have wrongfully prevented the plaintiff from using waters, to his damage in the sum of $50.

The decree quieted the respondent's title to the water rights and right of way above mentioned, with the exception of the two springs referred to, and enjoined the appellants from molesting or interfering with the respondent in the use and enjoyment thereof, and decreed that the respondent may keep in repair the dam and headgate at the outlet of Ward lake at the present height of dam for storing water in the lake sufficient to supply him annually with the water from the lake to which he was found entitled. It also provided that he might use the water decreed to him all at one time or at such times as he may desire between noon of June 15th and noon of August 15th of each year, and convey the same over the defendants' lands within the right of way formerly used by Wright,...