Miller v. Wheeler

Decision Date11 August 1909
Citation103 P. 641,54 Wash. 429
PartiesMILLER et al. v. WHEELER et al.
CourtWashington Supreme Court

Department 1. Appeal from Superior Court, Chelan County; R. S. Steiner Judge.

Action by Philip Miller and others against Peter Wheeler, Jr. administrator of Peter Wheeler, deceased, and others. Judgment for plaintiffs. Defendants appeal. Reversed and remanded for further proceedings.

Reeves & Reeves, for appellants.

Higgins Hall & Halverstadt and Thomas & Sorenson, for respondents.

CHADWICK J.

In 1874 Philip Miller settled upon a tract of land now in Chelan county, Wash. At the time a prior settler, whose improvements he bought, had appropriated and diverted about 100 miner's inches of water then flowing in the Quil-toc-chin, latterly called the Squillchuck, a small stream flowing out of the mountains, across the Wenatchee valley and into the Columbia river. Thereafter, before the intervention of other rights, he dug a larger ditch, and appropriated and put to beneficial use 320 miner's inches measured under 6-inch pressure. In the summer of 1885 Peter Wheeler and Fletcher Byrd settled on what is now known as 'Wheeler Hill'; their lands lying above the point of Miller's head gate and distant about a quarter of a mile from the Squillchuck. On the Wheeler land there were two small springs, and on the Byrd land there was a larger spring. These springs were so located that they furnished no water for irrigation for the owners of the land upon which they arose. The Wheeler and Byrd land, or a part of it, formed a natural basin culminating in a narrow gulch descending rapidly into the Squillchuck, and in the springtime, as the snow was melting water flowed from this drainage basin into the gulch and down into the Squillchuck. The testimony is in sharp conflict as to the amount of water flowing from the springs at the time Wheeler and Byrd made settlement; the witnesses for plaintiffs fixing the flow from them at from four or five inches to eight or ten inches in the summer season, while the witnesses for defendants insist that no water whatever, other than the flood waters of spring, flowed from the springs into the Squillchuck. In the year 1897 Wheeler, Byrd, and others went above their lands and onto another watershed, and appropriated the waters of Stemilt creek, which they brought over and used for irrigating their lands. From this time the flow of the springs gradually increased, and marshes of considerable extent formed on the lands, an acre or two on both the Wheeler land and the Byrd place. The marshes formed by the excess waters from the Stemilt were, like the springs, so situate that neither owner could collect the waters there accumulating and put them to a beneficial use on his own land. About the year 1894 it was agreed between Wheeler and Byrd that Byrd might lay a ditch so as to drain the excess waters on the Wheeler lands and divert the water to his land adjoining for the purpose of irrigation, and in that consideration therefor Wheeler might have the flow of the Byrd spring and seepage from the marsh after it had passed down the gulch, into the Squillchuck, and on past the Miller head gates for use on lands owned by him lower down in the valley. In the year 1901 C. E. Morse bought the land and water right of Fletcher Byrd. That Wheeler and his grantees used water out of the Squillchuck, sold land, and conveyed water rights, from 1895 up to 1906, seems not to be denied. In July, 1906, however, the flow at Miller's head gate being less than 320 inches, he brought this action to restrain defendants from all acts and uses of the water that tended to decrease his flow below the amount to which he was entitled under his original appropriation. The gist of the complaint is contained in the following excerpt from the pleadings: 'That since about the 1st day of July, 1906, the quantity of water flowing in said stream and coming down to the head gate of said ditch which is located in section 22, township 21, range 20 E. W. M. and has been so located since the year 1870, has been less than said 320 inches, since which time the defendants have taken and diverted, and are continuing to take and divert, from said stream, above said head gate, about 20 inches of water miner's measure under a 6-inch pressure, and have prevented its returning to said stream, and have wrongfully deprived the plaintiffs thereof, said water so taken and diverted being water arising from springs located upon or near section 3, township 21, range 20 E. W. M., which are and were, at the time plaintiffs' right to take said waters became vested, feeders of said main stream and a part of plaintiffs' said water.'

There is no evidence whatever tending to show that any diversion of water has been made by any of the appellants from the Squillchuck itself above Miller's head gate. Hence we conclude that the diversion complained of is the digging of the ditch which drained the marsh and spring on the Wheeler land, with the incidental right claimed by the Wheelers and their grantors to divert the overflow of the Byrd spring and marsh, after it had followed the natural path of gravitation into the Squillchuck. Confusion may be the worse confounded, however, for appellants say in their brief that respondents are seeking to restrain a diversion below the Miller head gate. No findings of fact were made by the trial court; but we think the evidence shows that the greater part of the water now flowing down the gulch into the Squillchuck from Wheeler Hill is due to the seepage from the Stemilt waters which have been turned on the lands of appellants. The question naturally occurs whether the water from this artificial source, having naturally gravitated into the soil and percolating therein, may be ditched and drained for further use by the owners as against the right of a lower appropriator; in other words, whether percolating waters arising from an artificial source become a natural flow of an existing watershed and a part of its drainage stream. Our conclusion is that it may be or may not be so, according to the facts presented in the particular case under consideration. The Stemilt waters being the result of the landowners' energy and effort, it would seem but just to say that, so long as he used them or could impound the overflow or waste upon his own land, although for use on other land, one asserting a right of appropriation in no way dependent upon the artificial flow, but made wihout reference to it, should have no cause to complain. The doctrine of appropriation rests upon the theory of ownership, and, while cases going to the particular question here presented are not numerous, there are nevertheless some that in principle sustain the premises which we have laid down.

In Farnham on Waters, § 672d, the rule is stated thus: 'When an appropriation is made of the water of a stream, the rights of the appropriator are limited to the natural condition of the stream at the time the appropriation is made, and he has no interest in the improvements subsequently made which increase the supply of water flowing in it. Therefore, if by his own exertions another increases the available supply of water in the stream, he has a right to appropriate and use it to the extent of the increase. This rule does not apply to mere removal of obstructions or hastening of flow, so that the actual amount of water which passes along the stream is not increased, but only to cases in which a supply of water is added to the stream which would not otherwise have flowed there.' If this be the rule applying to waters of the stream actually appropriated, the conclusion is inevitable that it would apply with greater force to a supply of water brought from an entirely different source and from another watershed.

We find the principle underlying the rule quoted in Burnett v Whitesides, 15 Cal. 35, where the rights of the first appropriator were limited to the natural waters of the stream. In Platte Valley Irrigating Company v. Buckers Co., 25 Colo. 77, 53 P. 334, it was held that one who had increased the...

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