Miller v. Baker

• Decision Date: 30 March 1912
• Parties: MILLER et al. v. BAKER et ux.
• Court: Washington Supreme Court

122 P. 604

68 Wash. 19

MILLER et al. v. BAKER et ux.

Supreme Court of Washington

March 30, 1912

Department 2. Appeal from Superior Court, Stevens County; John B. Yakey Judge.

Action for injunction by W. B. Miller and others against C. M. Baker and wife. Decree for plaintiffs, and defendants appeal. Affirmed.

Jesseph & Grinstead, of Colville, for appellants.

Jackson & Bailey, of Colville, for respondents.

MOUNT J.

Plaintiffs brought this action to restrain the defendants from diverting the waters of Narcisse creek, in Stevens county, from its natural flow, and from carrying such water around the lands of plaintiffs and using the waters for irrigation upon lands alleged to be nonriparian, so that the surplus waters could not be returned to the stream above the point where it entered the plaintiffs' land. A decree was entered by the trial court, enjoining such use. The defendants have appealed.

The facts are briefly as follows: The plaintiffs own 160 acres in section 4, township 34 N., range 40 E. W M., being the N.E. 1/4 of that section. The defendants own a tract of land comprising about 360 acres. The defendants acquired this land at different times and in different parcels by independent conveyances. This land extends 1 1/2 miles in length, north and south, and lies to the west of plaintiffs' land. Defendants' land joins plaintiffs' land upon the west. It extends one quarter of a mile further south and three-fourths of a mile further north. A small creek, known as Narcisse creek, flows diagonally across the plaintiffs' land in a southwesterly direction through about the center of the quarter section. The general course of the stream is southwesterly. It crosses the corner of defendants' land at the southeast corner in the same general course for a distance of about 20 rods. This stream is small. It does not furnish sufficient water to irrigate all the arid lands lying along the banks. Prior to the commencement of the action, the defendants procured a right of way north of plaintiffs' land from an intervening owner, and built a dam across the creek, and constructed a ditch about one-half mile north of the plaintiffs' land, and carried the water of the creek from that point across to the defendants' land, lying west of plaintiffs' land, in order to irrigate that tract. This ditch, during the irrigation season, carried substantially all the water of the creek away from its natural flow, and deprived the plaintiffs of any water for irrigation purposes and at times for domestic purposes. The water carried in this ditch did not find its way back to the creek, on account of the topography of the country where it was used for irrigation.

The appellants' opening brief is devoted to a discussion of the contention that the appellants' lands are riparian lands, because they are within the watershed of the creek are held by one ownership in one contiguous body, and the creek flows across the southeast corner thereof. Jones v Conn, 39 Or. [68 Wash. 21] 30, 64 P. 855, 65 P. 1068, 54 L. R. A. 630, 87 Am. St. Rep. 634; Clark v. Allaman, 71 Kan. 206, 80 P. 571, 70 L. R. A. 971; Wiel on Water Rights (3d Ed.) §§ 768, 769, are cited as sustaining this contention. The respondents have devoted the greater portion of their brief to the contention that the lands of the defendants, not bordering upon the stream and acquired at different times by separate and independent sources of title, are not riparian lands, and cite a number of authorities to that effect, among which are Lux v. Haggin, 69 Cal. 424, 4 P. 919, 10 P. 674; Crawford v. Hathaway, 67 Neb. 325, 93 N.W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647; Watkins v. Clements, 98 Tex. 578, 86 S.W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 653; 2 Farnham on Waters, § 463a. We find it unnecessary to decide at this time whether the defendants' lands are all riparian to this stream. For the purposes of this case, it may be conceded that they are riparian. But it is clear that, if the whole tract owned by the defendants is riparian land, this is so because the stream crosses the tract at a point in the extreme southeast corner thereof. The stream does not touch the defendants' lands at any other point. The tract is therefore riparian to the stream at that point only. The mere fact that a tract of land touches a stream at one point does not make such land riparian at other points on the stream, or to the whole of the stream. The riparian right of such land, or the owners thereof, is confined to the points where the land abuts upon the stream. This is stated by Mr. Wiel, in his work on Water Rights (3d Ed.) § 768, as follows: "It is only the tracts next the stream which are riparian lands, and the owners of such tracts are alone riparian owners.' They alone have the right of access from which the right to take the water arises. 'It is, of course, necessary to the existence of a riparian right that the land should be in contact with the flow of the stream.' To be a riparian proprietor, one must have access to the stream over the land he owns. 'It is by virtue of that right of access that he obtains his water rights." This is, no doubt, the rule. The defendants in this case are not taking water from the points where their land borders upon the stream. They say that water may not...