Meyer v. Tacoma Light & Water Co.

• Decision Date: 26 January 1894
• Citation: 8 Wash. 144,35 P. 601
• Court: Washington Supreme Court
• Parties: MEYER ET AL. v. TACOMA LIGHT & WATER CO.

35 P. 601

8 Wash. 144

MEYER ET AL. v. TACOMA LIGHT & WATER CO.

Supreme Court of Washington

January 26, 1894

Appeal from superior court, Pierce county; Fremont Campbell, Judge.

Action by Frederick Meyer and another against the Tacoma Light &amp Water Company for damages for diversion of water of a stream. Judgment for plaintiffs. Defendant appeals. Reversed.

Stevens, Seymour & Sharpstein, for appellant.

J. P Case and W. W. Likens, for respondents.

HOYT J.

The questions presented by this record have been elaborately briefed and ably argued by counsel for the respective parties. Such argument has extended over a broad field, and raised questions, the decision of which will have an important bearing upon the history of the state. The conclusion to which we have come as to the facts in the case will, however, make it unnecessary for us to say anything as to many of the questions suggested by the briefs. The plaintiffs' action was founded upon the alleged fact that the diversion of water by the defendant from Clover creek and its tributaries had resulted in the lowering of Steilacoom lake, so that the mill of the plaintiffs, situated upon an outlet of said lake, was, during the dry season, deprived of water necessary to its proper operation. Upon this question plaintiffs' own proof showed that there was no water flowing into said lake from said Clover creek upon the surface during the dry season. The undisputed proof further showed that during the wet season, when the waters of Clover creek did flow upon the surface into said lake, there was water more than sufficient to supply plaintiffs' needs. It appeared that during that part of the year there was more water flowing through the outlet upon which plaintiffs' mill was located than could well be controlled. It further appeared from the proofs that the waters flowing into the lake in the wet season did not so accumulate as to materially increase the flow in said outlet during the dry season of the year. To state it differently, it appeared from plaintiffs' own proof that, at the time of year when it would be of any benefit to them, there was no flow of the waters of Clover creek into said lake upon the surface of the ground, and that, for that reason, they were in no way damaged by the diversion of the water by defendant, unless they were entitled to have its flow into said lake under the surface of the ground protected the same as a flow upon the surface. Such being the state of the proofs, it follows that unless, under the circumstances connected with such underground flow, plaintiffs were entitled to such protection, they have shown that they have no cause of action against the defendant. Plaintiffs, in their brief have seen the importance of this question, and have entered into an elaborate argument in relation thereto, in which numerous authorities tending to establish the fact that such flow should be protected have been cited. The authorities so cited by the plaintiffs, as well as those cited...