McEvoy v. Taylor

• Decision Date: 16 December 1909
• Citation: 105 P. 851,56 Wash. 357
• Parties: McEVOY et ux. v. TAYLOR et ux.
• Court: Washington Supreme Court

105 P. 851

56 Wash. 357

McEVOY et ux. v. TAYLOR et ux.

Supreme Court of Washington

December 16, 1909

Department 1. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Action by Charles H. McEvoy and wife against Andrew Taylor and wife. Decree for plaintiffs, and defendants appeal. Reversed and dismissed.

Dunphy Evans & Garrecht, for appellants.

MORRIS J.

Appellants own a small tract of land on the outskirts of Walla Walla. Springs of water rise upon the land, and the waters therefrom form a small pond about 20 feet in width and 40 feet in length. From this pond the water flows in a small stream down upon and across respondents' property. The action was brought, alleging the pollution of the water by appellants in permitting their horses, cattle, and geese to use the pond so as to befoul its waters and render its use unfit for respondents. The action resulted in the court enjoining the appellants from permitting their horses, cattle, or geese from entering into and corrupting the water, so as to prevent its flow in its natural purity, commanded them to clean out the spring, restoring it to its natural condition, and to remove a hogpen situate near the head of one of the springs, which last spring, however, did not empty its water into the pond. From the decree so entered defendants have appealed.

Respondents have not appeared in this court, so that we have not the benefit of a brief in their behalf. The only question involved in the appeal is the general one involved in the decree. The parties being riparian owners, their respective rights to the use of the water are to be determined by their rights as such riparian owners. These rights are now well established. Each riparian owner is entitled to a reasonable use of the waters as an incident to his ownership, and, as all owners upon the same stream have the same right of reasonable use, the use of each must be consistent with the rights of others, and the right of each is qualified by the rights of others. We are speaking now of rights common and incidental to riparian ownership, without regard to, and unaffected by, any modification of grant, prescription, or prior appropriation, which ofttimes enters into and largely determines the use of water by riparian owners. In cases of this character, the question to be determined largely is: What is a reasonable use, and is the diminution and pollution of the stream other and beyond the rights accorded under a reasonable use? If the upper owner goes beyond this reasonable use and damages the lower owner, then he must answer in damages or have his unreasonable use enjoined; but, if his proper and reasonable use causes damage to the lower owner, such damage flowing from the proper use of a natural right is damnum absque injuria.

Having determined the character of permissive use of the water by the upper owner, we will examine the evidence to ascertain whether or no appellants' use extended beyond their rights. The tract of land owned by appellants comprises 7 1/2 acres. The spring and pond are inclosed, with about one-third of an acre, by a fence with an open gateway. Appellants at the time of the trial below owned three horses, two cows, and five geese. They had at different times had as many as six cows and six or seven horses, and for about four months in the year they have as many as twenty geese; the increase being goslings which are sold each year in the fall. The cows and geese roam around in the pasture land outside the spring inclosure. The cows come down through the open gateway to the pond to drink, and the geese at times swim upon its surface. The horses are also watered there. After leaving appellants' tract, the water flows about 300 feet, when it reaches the point where respondents take it, using it for the laundry and bathroom, but not for drinking or culinary purposes. Respondents and witnesses testify to seeing the horses, cows, and geese...