Malnati v. Ramstead

• Decision Date: 11 April 1957
• Docket Number: No. 33675,33675
• Citation: 50 Wn.2d 105,309 P.2d 754
• Court: Washington Supreme Court
• Parties: Joseph MALNATI, whose name also appears of record as Giuseppe Malnati, and Mary Malnati, his wife, Respondents, v. William RAMSTEAD and Doris Ramstead, his wife, and the marital community they compose, Appellants.

Page 105

50 Wn.2d 105

309 P.2d 754

Joseph MALNATI, whose name also appears of record as Giuseppe Malnati, and Mary Malnati, his wife, Respondents, v. William RAMSTEAD and Doris Ramstead, his wife, and the marital community they compose, Appellants.

No. 33675.

Supreme Court of Washington, Department 2.

April 11, 1957.

Newman & Newman, Seattle, for appellants.

Kelleher & Curran, Kent, for respondents.

WEAVER, Justice.

Defendant appeals from a judgment which quiets title in plaintiff to a certain spring located on defendant's land, and to the exclusive use of the water, water course, settling basin, reservoir tank and screens, pipes, and other facilities necessary to convey the water to the plaintiff's land; together with an easement for ingress and egress over and along a path for access to the spring, in order to repair, replace, and maintain such facilities as are necessary for the beneficial appropriation and use of the water.

Plaintiff and defendant are abutting property owners. When plaintiff acquired interest in his land December 2, 1913, a spring existed on the land now owned by defendant, which spring was approximately three hundred and ninety feet east of their common boundary.

Since 1914, plaintiff has continuously used the water that flows through a ditch from the spring to a settling basin, thence to a five hundred gallon tank, and from it, by pipe, to plaintiff's land, for irrigation and domestic purposes. The trial court found:

'That ever since the year 1914 the taking of such water, development, care and maintenance of the water course and the water system, herein described, and the exercise of the easement rights of ingress and egress have been open, notorious, adverse and continuous as to defendants [who acquired interest in their land in 1953] and their predecessors in title and all the world and plaintiffs have at all times since said date claimed to have the exclusive right to such waters, exclusive ownership of said water system, and the absolute right of ingress and egress upon, over, under, along, in and across the portion of defendants' land upon which the same is located * * * that said property rights of plaintiff are appurtenant to plaintiffs' land * * *'

In 1915, a predecessor in interest of defendant objected to the use of the water. Whereupon, a co-owner with plaintiff (his brother-in-law) recorded a certain notice of water appropriation in the auditor's office of King county, purportedly in compliance with the then existing statutes. No other adverse claim was made against plaintiff's use of the water until defendant attempted to interfere with the water system, which action caused plaintiff to commence this proceeding to quiet title therein and restrain defendant.

The facts found by the trial court are substantially as we have outlined them. Defendant has assigned error to every finding of the trial court, except the first four matters not determinative of the issues. Specific errors are not pointed out; on the contrary, it is merely stated that the findings of fact are not supported by the evidence.

In Knatvold v. Rydman, 1947, 28 Wash.2d 178, 183, 182 P.2d 9, 12, this court said:

'The assignments that the trial court erred in making fourteen findings of fact, without any attempt to show wherein the findings were erroneous or lacked evidenciary support, is an invitation to us to search the record and see if we can find any error. It is not our function or duty to search the record for errors, but only to rule as to errors specifically claimed. Bristol v. Streibich, 24 Wash.2d 657, 167 P.2d 125, 126.'

However, a study of the record convinces us that there was ample evidence to support every finding of fact made by the trial court.

We cannot agree with defendant's contentions (a) that plaintiff's use was neither hostile nor exclusive; (b) that plaintiff did not intend to hold adversely; (c) that there can be no adverse use of wild, vacant, and unoccupied land and (d) that plaintiff abandoned the system when he established a new channel.

Adverse user is such use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right. Hostile use of real property by an occupant or user does not...