McCue v. Bellingham Bay Water Co.

• Citation: 5 Wash. 156,31 P. 461
• Court: Washington Supreme Court
• Decision Date: 03 November 1892
• Parties: MCCUE v. BELLINGHAM BAY WATER CO.

31 P. 461

5 Wash. 156

MCCUE v. BELLINGHAM BAY WATER CO.

Supreme Court of Washington

November 3, 1892

Appeal from superior court, Whatcom county; JOHN R. WINN, Judge.

Action by Henry McCue for an injunction against the Bellingham Bay Water Company. Judgment denying relief. Plaintiff appeals. Affirmed.

Bruce, Brown & Rayburn, for appellant.

Dorr, Hadley & Hadley, for respondent.

ANDERS C.J.

On April 3, 1889, appellant and wife, by a deed duly executed and acknowledged, "granted, bargained sold, conveyed, and confirmed" to the respondent "the right of way fifty (50) feet wide through, upon over, and across lot five, (5,) in section twenty-seven (27,) township thirty-eight (38) north, range three (3) east, Willamette base and meridian, in said Whatcom county, with the exclusive right to dig ditches, lay pipes, build flumes, bore tunnels, and construct conduits to convey water, within the said strip of land, and to maintain and use the same, with the right to take water from Lake Whatcom to the full capacity of any and all of the said conduits, together with the tenements," etc. The respondent, by its agent and general manager, soon after the execution of said deed, and with the knowledge and acquiescence of appellant, selected a 50-foot strip across said land, entered upon, surveyed, and took possession of the same, cleared it, and made a road upon it, preparatory to laying a pipe line thereon, for the purpose of conveying water from Lake Whatcom, a large, navigable body of fresh water, to the cities of Whatcom and Sehome, on Bellingham bay. It seems to have been the intention of the respondent, or rather of its engineer and manager, to drive a tunnel through a large portion of the right of way selected across said lot 5, in which to lay a water pipe, and accordingly men were employed through the winter of 1889-90, to sink pits or "shafts" on the selected route for the purpose of ascertaining the character of the soil, so that it might be determined whether a tunnel would be practicable and economical, or whether an open cut would have to be made. We are unable from the testimony to clearly determine just when this work was completed. Neither can we tell with certainty whether anything was done on the right of way by respondent thereafter, prior to the spring or summer of 1891. But during the latter year, about the month of August, the respondent resumed active operations upon the said right of way, with a view to an early completion of what it styles its "permanent pipe line" to Lake Whatcom. After the work had progressed to a considerable extent, appellant brought this action to enjoin its further prosecution, on the ground that he was the owner of said lot 5; that the respondent was occupying the same, and excavating, or threatening to excavate, a large and deep ditch therein, which would be prejudicial to his use and enjoyment of his said land; that the same was done without his leave or license; and that the respondent had selected, located, and used another and different right of way across said lot 5, and had abandoned the line in question. The appellant bases his right to an injunction upon the fact that in the fall of the year 1889, and, according to his own testimony, before the respondent had ceased to perform the preparatory work above mentioned, the latter, in order to obtain an early supply of water for the cities of Whatcom and Sehome, laid a pipe in front of said lot 5, along the margin of Lake Whatcom, which it used...