Methow Cattle Co. v. Williams

• Decision Date: 08 August 1911
• Citation: 117 P. 239,64 Wash. 457
• Parties: METHOW CATTLE CO. v. WILLIAMS et ux.
• Court: Washington Supreme Court

117 P. 239

64 Wash. 457

METHOW CATTLE CO. v. WILLIAMS et ux.

Supreme Court of Washington

August 8, 1911

Department 2. Appeal from Superior Court, Okanogan County; E. W. Taylor Judge.

Action by the Methow Cattle Company against W. E. Williams and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

P. D Smith, for appellant.

C. F Burton and E. C. Jennings, for respondents.

MORRIS J.

This is a controversy involving the rights of the parties to the use of a water ditch, for the flow of water from Beaver creek, in Okanogan county, for irrigation of their respective lands. The lands of the appellant are riparian to Beaver creek; those of respondents are not. This is, however, of no determinative value to the issues involved. The lands of appellant are situate in sections 2 and 11; those of respondents in sections 12 and 13; all in same township and range, so that respondents' lands lie in a generally southeasterly direction from appellant's. Respondents settled upon their lands in 1896, and in the same year they surveyed a ditch from a point on Beaver creek, in the southwest quarter of section 2, across section 11 and over and upon their lands, for the purpose of conveying water from Beaver creek to their lands for irrigation purposes and domestic use. In the same year J. A. Stewart, seeking water for power purposes in the operation of the Red Shirt mine, surveyed and built the ditch in question, known as the Red Shirt ditch. This ditch tapped Beaver creek at the same point as the ditch previously surveyed by respondents, and followed the same general direction down to and over the lands of appellant and respondents. All these lands were unsurveyed public lands at the time, not yet having been thrown open to private entry, although in the possession of respondents and the grantors of appellant, to whom the lands were subsequently respectively patented, all of whom consented to the appropriation of water by Stewart. The consideration for the right of way of this ditch, over the lands of respondents and those now owned by appellant, was the right to take therefrom and use water for irrigation purposes; respondents further agreeing to keep the ditch in proper repair across their premises. Respondents, upon making this agreement with Stewart, abandoned their ditch, and Stewart built the Red Shirt ditch, putting in diversion gates upon respondents' lands to enable him to take water therefrom. Respondents have continually used water from this ditch for irrigation and domestic purposes, and have assisted in keeping the same in repair from 1896 up to the present. The Red Shirt mine was abandoned later, and the ditch and its water rights have been conveyed to appellant, and this action has been instituted by it to enjoin respondents from any use of the ditch or the waters of Beaver creek.

The court below has made extensive findings, all of which, in so far as they are determinative of the issue, are excepted to by appellant. We cannot, however, review them in this opinion. It is sufficient to say we find them sustained by the record, and, as they are made upon sharply contested facts, we accept them as our findings, following the rule so oft announced in cases of this character.

Appellant raises several questions of law which we will now consider. It contends that the right to the use of the ditch and its waters is, in effect, a parol license, creating or attempting to create an interest in land, and hence within the statute of frauds and controlled by Hathaway v. Yakima Water Power Co., 14 Wash. 469, 44 P. 896, 53 Am. St. Rep. 874 and Rhoades v. Barnes, 54 Wash. 145, 102 P. 884, both of which hold that a parol license, to be exercised upon the land of another, creates an interest in land and is within the statute of frauds, and revocable at any time, irrespective of any performance under the license. We still so hold. But such rule has no application here. The land, as between the parties to the agreement, Stewart and respondents, was the land of respondents; and when Stewart permitted him to take water from the Red Shirt ditch, in payment of a right of way across the lands, and in further consideration of keeping the ditch in repair, it was in no sense the...