Offield v. Ish

• Decision Date: 22 June 1899
• Citation: 21 Wash. 277,57 P. 809
• Parties: OFFIELD v. ISH et al.
• Court: Washington Supreme Court

57 P. 809

21 Wash. 277

OFFIELD v. ISH et al.

Supreme Court of Washington

June 22, 1899

Appeal from superior court, Garfield county; Mark A. Fullerton Judge pro tem.

Action by J. W. Offield against Benjamin Ish and others. Judgment for plaintiff, and defendants appeal. Affirmed.

M. F. Gose and Gose & Kuykendall, for appellants.

S. G Cosgrove, for respondent.

REAVIS J.

Suit to enjoin the diversion of water. In November, 1877, respondent settled upon the lands described in the complaint, and received a patent therefor in February, 1882. A stream of water, formed from confluent springs, flowed across the premises entering from the south side thereof, and running thence in a northerly direction to the Snake river, on the northern boundary of said premises. Appellants severally occupy premises further up the stream, and through which it flows. Appellants' grantor settled on premises, upon which they have been diverting the waters of the stream, in the autumn of 1881, as a pre-emption claim, and received a patent therefor in June, 1884. Appellant Benjamin Ish is the owner in fee, and the other appellants are his tenants. The springs which are the source of the stream are situated southwesterly from appellants' premises, and flow northerly through the same to and through respondent's premises, and this stream is the only one touching any of the lands in question except Snake river, which flows along the north side of respondent's premises. Appellants have no water except said stream. Portions of the lands of appellants are adapted to the growth of fruits, vegetables, and berries and require irrigation, and so do the premises of the respondent. The superior court made the following finding 'That in the spring of 1878 the plaintiff appropriated all the water of the stream above described by the means of the ditch, the head of which was on the above-described lands and premises settled by the plaintiff and conveyed said water over and across said premises by means of said ditch, and used the same for the purpose of irrigating the grounds preparatory to planting orchard trees afterwards planted by him on said lands; that said plaintiff planted during the spring of said year 2,200 trees, and all of the water flowing down said stream was conducted through said ditch, and used in preparing the soil for planting and for irrigating said trees after the same were planted during the irrigating season during the year of 1878, to wit, during the months of March, April, May, June, July, August, and September; that the use to which plaintiff applied said water was a beneficial use, and the whole of the water was necessary for the proper care and cultivation of the orchard by him planted during the said season; and continuously since said time the plaintiff and his said grantors have gradually enlarged said orchard, and ever since the year of 1878 the whole of the water of said stream has been required and actually used in the necessary and proper cultivation and irrigation of said orchard. During the irrigating season aforesaid, and at the time of the attempted diversion or diversions as hereinafter mentioned, the whole of the water flowing down said stream was actually appropriated and used by the plaintiff in irrigating and carrying forward his orchard; and said waters were during all the said...