Neubert v. Yakima-Tieton Irr. Dist., YAKIMA-TIETON

• Decision Date: 15 August 1991
• Docket Number: No. 57064-7,YAKIMA-TIETON,57064-7
• Citation: 117 Wn.2d 232,814 P.2d 199
• Court: Washington Supreme Court
• Parties: Herman Willy NEUBERT and Corrine Francis Neubert, husband and wife; Wallace R. Benner and Laurel J. Benner, husband and wife; Larry Colbert and Barbara Colbert, husband and wife; and John Does and Jane Does 2 through 10, Respondents, v.IRRIGATION DISTRICT, Appellant.

Page 232

117 Wn.2d 232

814 P.2d 199

Herman Willy NEUBERT and Corrine Francis Neubert, husband and wife; Wallace R. Benner and Laurel J. Benner, husband and wife; Larry Colbert and Barbara Colbert, husband and wife; and John Does and Jane Does 2 through 10, Respondents, v. YAKIMA-TIETON IRRIGATION DISTRICT, Appellant.

No. 57064-7.

Supreme Court of Washington En Banc.

Aug. 15, 1991.

Reconsideration Denied Oct. 16, 1991.

Gavin, Robinson, Redman, Pratt & Crollard, Inc., P.S., G. Scott Beyer, Michael F. Shinn, Halverson & Applegate, P.S., Donald H. Bond, Yakima, for appellant.

Lyon, Beaulaurier, Weigand Suko & Gustafson, J. Eric Gustafson, Randall L. Ommen, Yakima, for respondents.

DOLLIVER, Justice.

This action challenges the validity of a resolution adopted by the Board of defendant Yakima-Tieton Irrigation District (YTID). The resolution established a water access preference for frost protection water users over general water users. The trial court found the resolution improperly interfered with existing water rights. We agree.

Plaintiffs are individual owners of land and related water rights in Yakima County. Plaintiffs' predecessors in interest acquired title to the land by patent deeds issued by the United States Government in 1895. Plaintiffs' predecessors acquired the water rights through patent deeds issued by the United States Government under the Reclamation Act of 1902. 43 U.S.C. §§ 372, 373.

In 1906, plaintiffs' predecessors formed the Tieton Water Users' Association (TWUA) to provide an entity to deliver water from the Tieton River to users within the Yakima Valley. Shortly after its inception, TWUA entered into a contract with the United States Government for construction of irrigation works. As a condition precedent to receiving water from the newly constructed irrigation works, landowners were required to join TWUA and assign their water rights to TWUA. In return, TWUA shareholders obtained the right to receive a proportionate share of all water available to TWUA. Water was first delivered to TWUA shareholders in 1910.

Defendant YTID was established by the Yakima County Commissioners in 1918 and is governed by RCW 87.03. In 1945, TWUA adopted a resolution of dissolution and YTID expressly assumed all rights and obligations of TWUA. In 1947, the United States and YTID entered into an agreement transferring the maintenance and operation of the irrigation works to YTID.

Prior to 1986, YTID delivered water to individual users through a system of open ditches and water gates. Before the start of the irrigation season in late April, water gates were left unlocked allowing users to take water as needed. Once the irrigation season began, however, water gates were unlocked only if users paid their fees and users were limited to their proportionate share of water. As of 1973, YTID defined a share of water as 2.41 acre feet per year or 3.6 gallons per minute on a continuous flow.

In 1977, YTID began to consider replacing the open ditch system with a pressurized pipe system. The existing open ditch system suffered from inefficiency and wastefulness and was in need of major repairs. The plan ultimately adopted by YTID in 1978 called for installation of pipes and reservoirs larger than necessary for existing uses in order to create an excess capacity for frost protection. In YTID's application to the Department of Ecology for a reservoir construction permit, YTID indicated its desire to store water for "irrigation (frost protection), irrigation reregulation, spray and cistern."

Even with the expanded system, there would not be enough water available to guarantee all water users frost protection. Consequently, YTID elected to limit the availability of the new frost protection service and to assess the added costs of the larger system against those users. Ultimately, 227 of approximately 1,320 farm water users signed up. Plaintiffs, who already used part of their annual water allotment for frost protection, did not sign up despite warnings from YTID the service would later be difficult to obtain. At that time both YTID and plaintiffs believed the new frost protection service would come out of the newly created excess without affecting existing use.

After a particularly hard frost in 1985, the YTID Board adopted Resolution 87-9 which distinguished "irrigation water" and "frost water" and allowed YTID to interrupt water service to general water users in order to ensure an adequate supply to persons who had contracted for frost protection. After a series of public meetings, the YTID twice again adopted the resolution with only minor modifications. As Resolution 88-4 exists today, it allows YTID to interrupt service to "irrigation water" users if necessary to ensure provision of "frost water" under the frost protection agreements. The provision has been invoked only once.

Plaintiffs brought this action challenging the validity of Resolution 88-4. The trial court granted summary judgment for plaintiffs. The court found YTID has no authority to adopt new resolutions which give the new frost protection service priority over existing general water users, and the resolutions in question were adopted in an improper manner. The court concluded the plaintiffs hold a right to a pro rata share of all water available which may not be abridged by prioritization. This appeal followed.

As this is a review of a summary judgment order, we engage in the same inquiry as the trial court. Central Wash. Bank v. Mendelson-Zeller, Inc., 113 Wash.2d 346, 351, 779 P.2d 697 (1989). Summary judgment is appropriate

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

CR 56(c). Neither party alleges any issue of material fact. YTID challenges only the trial court's legal conclusions.

The first issue is whether frost protection is included within plaintiffs' existing water rights. The trial court found that it is. We agree.

Although YTID's argument heavily emphasizes contract principles of original intent, plaintiffs' water rights are governed by the doctrine of appropriation, not contract law. Fox v. Ickes, 137 F.2d 30, 33 (D.C.Cir.1943). The doctrine of appropriation was established in this state in 1873 when the Territorial Legislature enacted a right "to the use and enjoyment of the waters of the streams or creeks in [Yakima C]ounty for the purposes of irrigation and making said land available for agricultural purposes to the full extent of the soil thereof." Laws of 1873, § 1, p. 520. Once appropriated, the right to use a given quantity of water becomes appurtenant to the land. Lawrence v. Southard, 192 Wash. 287, 300, 73 P.2d 722 (1937). The appropriated water right is perpetual and operates to the exclusion of subsequent claimants. Longmire v. Smith, 26 Wash. 439, 447, 67 P. 246 (1901).

The key to determining the extent of plaintiffs' vested water rights is the concept of "beneficial use." The United States Supreme Court has held, "Under the Reclamation Act, supra, as well as under the law of Washington, 'beneficial use' was 'the basis, the measure and the limit of the right.' " Ickes v. Fox, 300 U.S. 82, 94, 57 S.Ct. 412, 416, 81 L.Ed. 525 (1937); see also Reclamation Act, ch. 1093, § 8, 32 Stat. 388 (1902) (codified as amended at 43 U.S.C. § 372 (1988)); Lawrence, 192 Wash. at 300, 73 P.2d 722 ("the only consideration required by the state for the use of the water for irrigation or agricultural purposes is the beneficial application of the water upon the land for the production of crops"); United States v. Ahtanum Irrig. Dist., 330 F.2d 897, 904 (9th Cir.1964) ("The beneficial use is the test and the measure of an appropriative right."). An appropriated water right is established and maintained by the purposeful application of a given quantity of water to a beneficial use upon the land.

YTID concedes the use of water for frost protection is a beneficial use. Nevertheless, YTID argues the plaintiffs have not appropriated this particular beneficial use. YTID claims the appropriation of a quantity of water for the nourishment of roots does not include the right to applythat same quantity of water to the beneficial use of frost protection.

An appropriated water right is limited by the time and volume of the original beneficial use. "[U]niversally recognized as a part of the law of waters in the western states [is the rule] that a water right may be measured by time as well as by volume." Ahtanum, 330 F.2d at 908. YTID now seeks to extend the rule to include limitations of purpose as well. However, we have previously rejected such a limitation. In In re Alpowa Creek, 129 Wash. 9, 224 P. 29 (1924), we quoted with approval:

"The appropriator of water is not limited in its application to that use for which he made the appropriation. On the contrary he may apply the water to any beneficial use that he chooses, and in changing from one use to another he does not in any way lessen his rights or forfeit his priority as an appropriator. If this were not true, a change of circumstances by which the use of the water for the purpose first contemplated would no longer be profitable would result in a practical destruction of the appropriator's interest therein, and in a loss by him of all the water and of the appliances by which it had been diverted, however valuable ... The appropriation having become perfect by the diversion of the water and its application to a useful purpose, the appropriator and his successors in interest acquire the right to use the water thus actually appropriated, either for the purpose originally contemplated or for any other lawful purpose."

Alpowa Creek, 129 Wash. at 16, 224 P. 29 (quoting 27 R.C.L. 1279 (1920)). Therefore, while plaintiffs' water rights may be limited by both time and volume, the...