De Ruwe v. Morrison

• Decision Date: 28 August 1947
• Docket Number: 30093.
• Citation: 184 P.2d 273,28 Wn.2d 797
• Parties: DE RUWE et ux. v. MORRISON et al.
• Court: Washington Supreme Court

184 P.2d 273

28 Wn.2d 797

DE RUWE et ux. v. MORRISON et al.

No. 30093.

Supreme Court of Washington, En Banc.

August 28, 1947

Action by Felix De Ruwe and wife against Millar A. Morrison and others to compel removal of a dam erected by defendants on their own property which plaintiffs contend obstructs a natural water course and floods plaintiffs' land at certain seasons. From a judgment of dismissal, plaintiffs appeal.

Judgment affirmed.

ABEL J., and MALLERY, C.J., dissenting.

Appeal from Superior Court, Spokane County; Chas W. Greenough, judge.

George W. Young and Powell & Nethercutt, all of Spokane, for appellants.

Tustin Chandler & Tustin, of Spokane, for respondents.

HILL Justice.

Appellants seek to compel the removal of a dam erected by respondents on their own property, which dam, appellants contend, obstructs a natural watercourse and floods their land at certain seasons of the year. The land in question is part of the Saltese basin, or the bed of what was formerly Saltese lake.

Saltese lake, when meandered in 1878, was a large but shallow body of water shaped somewhat like a potato, located on a bench in the Spokane valley. It was approximately two and one-half miles in length between the extreme northerly and southerly points and about a mile across at its widest point. Its greatest depth was seven feet, in the northeasterly portion, but for the most part it was much less than that: the contour map in evidence would indicate that, for most of the area originally covered by the lake, the depth was from two to four feet. Aside from certain potholes, or depressions, the lake basin is almost level, but the downward slope, such as it is, runs from south to north. However, there is a low spot on appellants' property to the south where water accumulates Before it reaches respondents' land, which lies to the north. The outlet in the northwest corner of the lake was referred to in the notes of the original survey, made in 1878, as being fifteen links, or about ten feet, in width. The deepening of this outlet has been the principal factor in drawing the water off the lake bed.

The status of the bed of the lake and the rights of various parties therein have been the cause of extensive litigation, much of which has found its way to this court. See: Morrison v. Bernot, 58 Wash. 302, 108 P. 772; Gauthier v. Morrison, 62 Wash. 572, 114 P. 501, reversed in 232 U.S. 452, 34 S.Ct. 384, 58 L.Ed. 680; Bernot v. Morrison, 81 Wash. 538, 143 P. 104, Ann.Cas.1916D, 290; Denee v. Morrison, 95 Wash. 76, 163 P. 382; and State ex rel. Wirt v. Superior Court, 10 Wash.2d 362, 116 P.2d 752. One of the points determined was that the owner of the littoral lands owned the bed of the lake to the center thereof. We quote a sentence from Denee v. Morrison, supra [95 Wash. 76, 163 P. 384]:

'* * * We must assume, therefore, that these lands were, at the time of the survey, the bed of a nonnavigable lake, and, being so, under the case of Bernot v. Morrison, supra, where the authorities from both this court and the supreme court of the United States are collected and considered, we concluded that the bed of this lake was not the property of the state, nor the property of the United States, but was the property of the littoral owners who had reclaimed the lands from the lake. * * *'

The principal figure in the work of reclaiming this land from the lake was Peter Morrison, now deceased. The respondents, who are the successors in interest of Peter Morrison, own about three-fourths of the lake bed. The remaining one-fourth, at the south end of the lake, is owned in part by the appellants and in part by Mrs. Anna Helm. Peter Morrison acquired title to the property now owned by the respondents in 1892.

On the Morrison property, an extensive system of drainage ditches has been established and maintained at considerable cost, including ditches along both the east and west sides of the lake bed and a ditch called the main ditch, which is the dividing line between the holdings of respondents Millar A. Morrison and Harry A. Morrison. What would be called the intake, or the beginning of this ditch, is about sixty feet north of a point called Four Corners, on the south line of the land owned by respondents. This is the common corner of the holdings of respondents Millar A. Morrison and Harry A. Morrison, and also of those of the appellants and Mrs. Helm. (The south line of respondents' property and the north line of the properties of the appellants and of Mrs. Helm is the east and west center line of section 33, township 25 north, range 45 east of Willamette meridian, which section will hereafter be referred to as section 33.) This (the main) ditch runs about one and three-eighths miles in a northwesterly direction and then goes, mostly west but a little north, about five-eights of a mile to the outlet. The intake, or beginning, of this ditch is on ground which is a little higher than the surrounding lake bed. The trial judge, who viewed the premises, inquired as to whether this was a natural or a manmade elevation, to which Harry Morrison replied: 'It has been there sinse I can remember back. There has never been any dirt hauled in to raise it.'

It is a dam installed at this intake of which the appellants complain. The dam is made up of sacks of dirt piled on top of each other, and serves the purpose of keeping water from the south out of the main ditch. It extends ten or twelve inches above the top of the ditch, and, consequently, above the surface of the lake bed.

It is the theory of the appellants that Saltese lake originally was a natural watercourse and that the waters from Quinimosa and Mouser creeks, which flowed into the lake at points south of the dam in question, made their way through the lake and eventually through the outlet located at the northwesterly end thereof.

Whether they rely on the theory that the entire lake bed remained a natural watercourse, or on the theory that the main ditch had been substituted therefor and has become, in effect, a natural watercourse, is not clear, and we shall therefore deal with both theories.

We shall proceed first to a determination of the question of whether the main ditch has been substituted as a natural watercourse.

It is urged by the appellants that certain pleadings and the findings, conclusion, and judgment in the case of Denee v. Morrison, supra, together with an affidavit of Peter Morrison which is part of the record in that case, should have been admitted in evidence. We will not pass upon that question but, since they are Before this court, we will assume that they should have been admitted and will consider them with the other evidence in the case. The affidavit, dated July 15, 1914, reads in part as follows:

'Affiant further says that he first saw Saltese Lake in the year 1889 * * * and in the said year 1889 the said lake consisted of a large body of water with patches of tules and rushes therein, * * * that in the month of April, 1892, affiant examined said lake and the land around the same, and * * * there was still an unbroken body of water within said meander line with patches of tules and rushes therein; that at that time, to-wit, April, 1892, there was running from said lake a large ditch of probably a mile and a half long draining the same; that by reason of said ditch and a great enlargement thereafter made by affiant and others for the purpose of draining said lake, the said lake is now practically drained, though a large part of the bed thereof is still subject to overflow in the high water season. * * *

' Affiant further says that said lake was further fed or supplied by two mountain streams or creeks emptying into the same, and that said streams or creeks flowed the year around, and still continue to flow through the bed of said lake in a ditch, except that the flow is now interrupted by the diversion therefrom of the waters of said streams for the purposes of irrigation, and it is also fed by several other streams dry for a short period during the summer time.

'Affiant further says that * * * affiant and other abutting owners have since 1892 continuously prosecuted their efforts to drain said lake * * *.' (Italics ours.)

Other than the inference from the italicized words in the affidavit above quoted, there is absolutely no evidence that the purpose of the construction of the main ditch was to take care of the waters of Quinimosa and Mouser creeks, or that the waters of said creeks ever flowed therein. The evidence is overwhelming that the ditch was put in and maintained for the purpose of draining the Morrison property, and the Morrison property only.

Let us first point out how the undisputed physical facts negative the idea that the ditch was excavated to take care of the waters of Quinimosa and Mouser creeks. The intake of the ditch in question is almost three quarters of a mile from the place where Mouser creek enters the old lake bed, and considerably more than a quarter of a mile from where Quinimosa creek comes in. During the greater part of the time that these creeks are flowing, the waters therefrom quickly spread out and disappear from sight a considerable distance south of the intake of the main ditch. It is only at times of flood and high water that there is any possibility that water from these streams would go as far north as the intake of the main ditch.

There is also evidence that, during certain seasons of the year, both of these streams dry up Before they reach the old lake bed. Peter Morrison's description of perpetual streams flowing through the bed of the lake in a ditch was hyperbolic, to say the least, and is without support in the evidence.

Now entirely apart from the physical facts, exhibit No. 21 establishes beyond...