Proctor v. Sim, 18289.

• Decision Date: 26 May 1925
• Docket Number: 18289.
• Parties: PROCTOR et al. v. SIM et al.
• Court: Washington Supreme Court

236 P. 114

134 Wash. 606

PROCTOR et al. v. SIM et al.

No. 18289.

Supreme Court of Washington, En Banc.

May 26, 1925

Appeal from Superior Court, Okanogan County; Neal, Judge.

Action by Harry H. Proctor and another against F. W. Sim and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Tolman C.J., and Fullerton and Mackintosh, JJ., dissenting.

F. C. Brock, of Riverside, B. B. Adams, of Olympia, and Reese H. Voorhees, of Spokane, for appellants.

F. R Jeffrey, of Kennewick, Fred J. Cunningham, of Spokane, and E D. Clough, of Omak, for respondents.

BRIDGES J.

There being no statement of facts, appellants rely entirely upon the pleadings, findings of fact, conclusions of law, and judgment. It is contended that the findings do not support the conclusions of law, and that the latter do not support the judgment.

Duck Lake is located within the boundaries of lands owned by the appellants in Okanogan county, this state, and is within the arid district. A particular description of it will be found in the findings hereinafter set out in full. The respondents, or some of them, own a growing orchard on lands within the immediate vicinity of, but not bordering on, the lake. Some years before the commencement of this suit they constructed a pumping plant on the lake, and by means thereof took some of its waters to irrigate their lands. In so doing, their pipe line ran over appellants' lands for a short distance. The purpose of the action was to recover damages of the respondents for trespassing upon appellants' lands and for the value of the water which the former took from the lake for irrigating during 1918, 1919, and 1920. The trial court found that the lake was navigable, gave appellants' judgment in the sum of $100 on account of respondents' trespassing upon their land, and refused any relief on account of the water taken. The court's findings of fact and conclusions of law follow:

'I. That the allegations of paragraph I of plaintiffs' complaint are true; that the plaintiff acquired the land described in said paragraph I as his homestead, and settled upon said land some years prior to 1906, at which time he received a United States patent for said land.

'II. That said lands are quite rough and rolling, and a small portion of the area is covered with rock and unfit for cultivation. That plaintiff is not now cultivating and has never cultivated any part of his said homestead except a very small portion thereof many years ago, and has never used any of the water of Duck Lake for irrigation or other purposes, unless of a very small portion some years ago.

'III. Duck Lake is an oval shaped meandered lake about 80 rods in length and 60 rods in width, and from 40 to 50 feet in depth at its deepest point, dropping off rapidly in depth on all sides except to the north, where there is a sandy beach. On the north shore the water is about 10 feet in depth at a distance of about 50 feet from the ordinary high-water mark, while on the other shore it attains a depth of 10 feet much nearer the shore. That said lake is fed by underground percolating waters and that the surface of the lake at its highest stage is from 60 to 70 feet below the average level of the surrounding land. That Duck Lake is now, and has been for a considerable number of years past, used considerably as a pleasure resort, partly for boating and fishing, but the most part for swimming and bathing; it has also for many years past been used by many members of the community for cutting ice, and to some extent for skating. That said lake is in fact navigable.

'IV. That Duck Lake is a meandered lake and included within the boundary lines of plaintiff's said land, except a small portion of the southwest corner of said lake, which is in section 15 at the corner thereof, and not in its natural state outside of said section 11.

'V. That the defendants constructed a pumping plant on plaintiff's said land, a portion of which is located outside of the meandered lines of said lake, and a pipe line of about 45 or 50 feet in length over and across part of plaintiff's said land to connect said pumping plant with the government irrigation canal, and that by means of said pumping plant and pipe line defendants pumped water from said lake for irrigation purposes during the years 1918, 1919, and 1920 for approximately 250 acres of bearing orchards owned by the defendants.

'VI. That the defendants had applied for and received a permit from the state hydraulic engineer to pump waters from said lake upon their said lands.

'VII. That said lake fills up after being pumped down, and at the time of the trial of this action there was as much water in the lake as at the time the defendants commenced pumping.

'VIII. That there are other pumping plants located along the banks of said lake not owned or operated by the defendants which were pumping and using water from said lake for the purpose of irrigating other lands than those owned by the defendants at the same time defendants were using such water; that the plaintiffs were damaged by the acts of the defendants in going over and across lands and in excavating and establishing a pipe line across lands owned by the plaintiffs outside of the meandered lines of said lake, in the sum of $100.

'From the foregoing facts the court makes the following conclusions of law:

'I. Said Duck Lake being a navigable lake, the plaintiffs had no riparian rights to the waters thereof.

'II. That the plaintiffs were not damaged by the defendants' use of the waters of Duck Lake.

'III. That the plaintiffs are entitled to judgment against the defendants for the sum of $100 by reason of injury to their lands caused by the defendants passing over the same and in making excavation thereof; that the plaintiffs are entitled to their costs in this action.'

We believe that the appellants concede that, if the lake is navigable, the judgment is right; but they deny its navigability and contend that, being nonnavigable and being wholly within their land, they own its waters; that, if it should be held that they are not the owners, then their riparian rights give them the exclusive control of the waters; that under no circumstances may any of the waters be taken to irrigate nonriparian lands such as respondents', and that the doctrine of Brown v. Chase, 125 Wash. 542, 217 P. 23, with reference to the surplus waters of a stream, is not applicable to like waters of a lake. It may be said here that it is not denied that this lake has much more water than can be used by the appellants for domestic purposes or irrigating their lands, and that in this sense there are large quantities of surplus waters and will continue to be because the waters are continually being fed by springs.

The first question to be discussed is whether the lake is navigable.

Navigability is always a question of fact. Whether a body of water is navigable in the true sense of the word depends, among other things, upon its size, depth, location, and connection with, or proximity to, other navigable waters. It is not navigable simply because it is floatable for logs or other timber products or because there is sufficient depth of water to float a boat of commercial size. A lake which is chiefly valuable for fishing or for pleasure boats of small size is ordinarily not navigable. In order to be navigable, it must be capable of being used to a reasonable extent in the carrying on of commerce in the usual manner by water. 'Navigability in fact is, in the United States, the test of navigability in law; and whether a river is navigable in fact is to be determined by inquiring whether it is used, or is susceptible of use, in its natural and ordinary condition, as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771. 'Navigable waters mentioned in section 1 of article 17 of our state Constitution include only such waters as are navigable for general commercial purposes.' Watkins v. Dorris, 24 Wash. 636, 64 P. 840, 54 L. R. A. 199; Harrison v. Fite, 148 F. 781, 78 C. C. A. 447. To be navigable, a lake must be so situated and have such length and capacity as will enable it to accommodate the public generally as a means of transportation. Griffith v. Holman, 23 Wash. 347, 63 P. 239, 54 L. R. A. 178, 83 Am. St. Rep. 821. It is clear to us that Duck Lake does not meet these qualifications. It is wholly within the lands owned by appellants, and it is about 1,300 feet in length and 1,000 feet in width and from 40 feet to 50 feet in depth at its deepest point, and covers about 25 acres. It is from 60 feet to 70 feet below the average level of the surrounding lands. The principal use to which it has heretofore been put has been as a pleasure resort for boating and fishing, swimming, and skating. It is meandered, but all of the authorities hold that that fact does not make a river or lake navigable. It is stated in the briefs and seems to be conceded that this lake does not connect with, nor is it in the immediate vicinity of, any navigable waters, nor are there on its shores any place where commerce is carried on.

Respondents rely for the most part on Ortel v. Stone, 119 Wash 500, 205 P. 1055. That case involved Davis Lake, in Okanogan county. It had a length of about 3/4 of a mile and an average width of about 1/8 of a mile, and covered an area of about 40 acres. In many respects it was similar to the one involved here, but there are some distinguishing features. It ought to be said that the trial court thought this lake was not navigable till his attention was called to the Davis Case. We are now of the opinion that we went to the extreme length in holding Davis Lake...