Rhoades v. Barnes

• Decision Date: 12 July 1909
• Citation: 54 Wash. 145,102 P. 884
• Parties: RHOADES v. BARNES.
• Court: Washington Supreme Court

102 P. 884

54 Wash. 145

RHOADES v. BARNES.

Supreme Court of Washington

July 12, 1909

Department 1. Appeal from Superior Court, Klickitat County; W. W McCredie, Judge.

Injunction by George W. Rhoades against C. O. Barnes. From a judgment for defendant, plaintiff appeals. Affirmed.

W. B Presby, E. C. Ward, and N. L. Ward, for appellant.

Brooks & Smith and Wm. T. Darch, for respondent.

MORRIS J.

The parties hereto are the owners of adjoining lands in Klickitat county near Goldendale. Across the respondent's land flows a small creek, known as Klickitat creek. In 1883 the Goldendale Water Ditch Company commenced taking water from the creek, and furnishing it to the town for domestic uses. This taking was at a point south of respondent's lands. In 1887, the supply being insufficient, a writing was obtained, signed by seven-twelfths of the then ownership of the respondent's land, which purported to grant to the company the exclusive right of way across the land to lay a 4 1/2-inch pipe, and to take water from the creek at any point to be selected by the company. Under this writing the company built a small dam and laid a pipe line across the lands, conveying the water to Goldendale, where it was sold for domestic use. In 1890, more head being required, the location of the dam was changed to a point higher up the creek, and an 8-inch pipe laid across the lands. In 1895 appellant obtained, from the then owners of the pipe line, permission to take water from this 8-inch pipe, tapping it at a point where it crossed a corner of his lands. The company continued to use this pipe line to supply the inhabitants of Goldendale until about the year 1896, when a new supply was obtained from another source. At about the same time the old pipe line was abandoned, no use being made of it by the people of Goldendale, with the exception of a Mr. Young, one of the original owners, who seems to have made some use of it for irrigating his orchard. The permission given appellant to tap this pipe line was in consideration of his keeping the dam in repair; the dam being only a temporary affair, consisting of a 14-inch log thrown across the creek, with dirt and straw placed against it. Appellant continued using the water from this tap about three years, when he obtained a second permission to tap the pipe about 300 feet from the first tap, with a 2-inch pipe. One Hornibrook was then the owner of respondent's lands, and he gave appellant permission to cross the lands with this 2-inch pipe, about the distance of 300 feet from the point where the new tap was made, until appellant reached his own lands. Hornibrook also used water from this dam for irrigating purposes, under the same condition of its use by appellant, viz., keeping the dam and pipe line in repair; and, under this condition, the dam was kept up. In 1901 respondent became the owner of the land previously occupied by Hornibrook, and from the time of his ownership he seems to have assisted in maintaining the dam, which was removed each winter during the time of high water in the creek, and replaced again in the spring, appellant obtaining permission from respondent to replace the dam in 1901, and the lower court finding that, whatever was done upon the dam subsequent to that year was by permission and consent of respondent. Under this arrangement the dam was maintained each season, until in July, 1905, when the respondent, claiming there was not sufficient water for the use of himself and appellant, stopped the flow through appellant's pipe, and after a third stoppage of the water appellant brought this action to obtain injunctive relief, which, being denied by the court below, he appeals.

Appellant contends that, the company having given him the rights to take water from its pipe upon condition of his keeping the dam in repair, such right became a license, and, being coupled with a performed condition, it became, and is irrevocable, and cites many cases holding that a parol license made upon condition, when the condition is performed by the licensee, or expenses incurred by him, becomes irrevocable. It must be admitted that many cases so hold; but this court, in the case of Hathaway v. Yakima Water Power Company, 14 Wash. 469, 44...