Rigney v. Tacoma Light & Water Co.

• Decision Date: 15 October 1894
• Citation: 38 P. 147,9 Wash. 576
• Court: Washington Supreme Court
• Parties: RIGNEY v. TACOMA LIGHT & WATER CO. ET AL.

38 P. 147

9 Wash. 576

RIGNEY v. TACOMA LIGHT & WATER CO. ET AL.

Supreme Court of Washington

October 15, 1894

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Suit by Robert P. Rigney against the Tacoma Light & Water Company and the city of Tacoma for an injunction to restrain them from diverting certain water courses from plaintiff's lands. Judgment for plaintiff, and defendants appeal. Affirmed.

Stiles J., dissenting.

Chas. A. Seymour and F. H. Murray, for appellants.

Baker &amp Campbell, for respondent.

ANDERS J.

The respondent instituted this action to obtain an injunction against the Tacoma Light & Water Company, a duly-organized corporation, to restrain it from diverting the waters, or any part thereof, of Spanaway (or Bushalier) creek, and of Upper Clover creek, from their natural channels, or polluting the same, and to compel it to remove the dams, flumes, ditches and filters placed therein, or connected therewith, by said defendant, and to restore said waters to their natural bed or channel. That a large portion of the waters of the streams above mentioned have been, and still are, diverted therefrom and carried by means of flumes and ditches to the city of Tacoma, and there consumed, is not disputed. The acts causing the diversion were all done by the water company, but after the commencement of this action it sold its plant to the city, and for that reason the city was made a party defendant by order of the court. The proof clearly shows that the plaintiff (respondent here) is the owner in fee of about 340 acres of land, which is used, and for a long time has been used, for agricultural purposes and for pasturing stock, and that the plaintiff resides thereon. The stream designated as "Upper Clover creek" originates in some springs several miles eastward from Smith's swamp, into which it flows. Spanaway creek, also called "Bushalier creek," is the outlet of Spanaway lake, and a short distance from its source it divides into two branches, one of which flows through "Tule lake" and into Smith's swamp or lake, on the east side thereof, and the other, known as "Morey creek," also flows into the same swamp at its southeastern extremity. The waters which thus unite in this swamp flow out of it at its westerly end, and form what is called "Clover creek," which flows through the lands of the respondent. The evidence discloses that Smith's swamp covers an area of 100 acres or more, nearly all of which, in its natural state, was covered with water during the rainy season, but at other times of the year became comparatively dry, except around the margin, where the water always remained. It must be conceded-in fact it is not disputed-that the respondent is a riparian proprietor, and entitled to all the rights of such proprietor, if Clover creek is a natural water course. But whether it is such, and, if so, whether the waters diverted by the light and water company were any part of the waters thereof, were questions which were strongly controverted at the trial. It was contended on the part of the defendants that the streams from which said defendant abstracted the water for the use of the inhabitants of the city of Tacoma were not sources or tributaries of Clover creek, but that they ceased to be streams at all when they discharged their waters into Smith's swamp, for the alleged reason that they then and there entirely lost their identity, and formed a distinct body of water having none of the essential characteristics of a water course. The court, however, found, in effect, contrary to the contention of the defendants, that Clover creek was a natural water course, whose source was not Smith's swamp, but the streams which were diverted by the defendants. The questions determined were questions of fact, and, upon the evidence in the record, we are not prepared to say that the court arrived at an erroneous conclusion. There was considerable positive testimony tending to show not only that there were, during a large portion of each year, currents flowing through Smith's swamp from the points where it receives the waters of the streams in question to the outlet in Clover creek, but that such currents were confined to regular, well-defined channels. There can, we think, be little doubt that Lower Clover creek is an ancient water course, notwithstanding the fact that its channel has been deepened artificially within the last 10 or 15 years for the purpose of draining the swamp from whence it flows. From the time of the earliest settlement of the country it has flowed in a definite and easily distinguished channel, and was seldom-perhaps never-dry, prior to the commission of the acts complained of. Having a bed, banks, and current, it is a natural water course, even although it may, at times, be dry. Gould, Waters, § 41. Both Spanaway creek and Upper Clover creek are virtually conceded to be natural streams of water, and the mere fact that their united volume spreads out into a broad sheet, with currents, covering a large area of low ground, to which the appellation of swamp or lake has been given, does not deprive them of their character as water courses. Upon the question of whether a given body of water is a lake or pond or a river, Gould, in his work on Waters (section 79), says: "The fact that there is a current from a higher to a lower level does not make that a river which would otherwise be a lake, nor does a lake lose its distinctive character because there is a current in it for a certain distance, tending towards a river, which forms its outlet. On the other hand, the fact that a river broadens into a pond-like sheet with a current does not deprive it of its character as a river. Where it is admitted, or not denied, that the water is not a lake or pond, the material difference between which is in size, the only criterion by which to determine whether it is a river is the existence of a current, and this question cannot be answered by ascertaining what appellations have been given to it." In a late and well-considered case in Wisconsin the supreme court of that state held that the fact that a stream spread over wide reaches of marshes and swamps, on or below the surface, did not militate against its being a water course in every essential particular, so long as it could be identified as the same stream; and the identity of the stream through the marshes and swamps was in that case disclosed solely by its current, there being no defined channel or channels whatever. Case v. Hoffman, 54 N.W. 793.

Viewed in the light of these authorities, and others which might be cited, we are of the opinion that the facts in this case fully justified the trial court in concluding that the waters diverted by said defendant were the waters of Lower Clover creek. And, it being conceded that the water company has been diverting the water for several years last past, in large quantities, and not returning any portion so taken to the channels in which it was accustomed to flow, it has, during all of said time, been engaged in the commission of unlawful acts, whether it was or is a riparian proprietor at the particular points where such diversions have been made or not. Not even a riparian owner has a right to divert a stream permanently from its natural course, and thus deprive others of their rights therein. Such an act in itself is wholly unlawful. Crook v. Hewitt, 4 Wash. 749, 31 P. 28. And the purpose for which the water diverted may be used makes no difference as to the force and effect of this rule. Accordingly it is said by Kerr that a diversion of water from a stream for the purpose of supplying a neighboring town with water is not a lawful user of the water. Kerr, Inj. (2d Ed.) § 229. But in this case the defendants, in their answers, undertake to justify their acts on the alleged grounds: First, that on May 21, 1884, one James Rigney plaintiff's ancestor and grantor, for a good and valuable consideration, and by an instrument in writing, which was duly recorded in the office of the auditor of Pierce county, granted to the defendant water company the right to take and use the waters for the taking and using of which this action was brought, and released and discharged said defendant from any and all claims for damages on the part of said James Rigney, his heirs or assigns, including plaintiff, on account of taking said waters, or any part thereof; and, second, that the plaintiff was at all times fully informed of the operations of the light and water company, and of the city, as its successor, and grantee of all its interests, and without protest or objection allowed the said water company to make its connections, build its structures, and take the water for the use of the city, and is thereby estopped from maintaining this action. As to the first ground of justification above mentioned, but little need be said. It was not specially pressed at the hearing in this court. The written instrument referred to, although purporting upon its face to be the contract or covenant of James Rigney and Ann Rigney, his wife, was not executed by the latter, and, upon her refusing to do so, the former at once informed the company of the fact, and notified its superintendent that the contemplated agreement was at an end. Besides, it does not appear that the water company ever complied with the conditions set forth in the instrument, and which were necessary to give it force and effect. Nor does it appear from the evidence that the company really at any time relied upon this writing as authorizing it to divert the water from the premises now owned by the respondent. In fact, judging by the acts and declarations of the company's agents when objections were made to its using the water, we think no such claim as we are now...