Sander v. Bull

• Decision Date: 09 October 1913
• Citation: 135 P. 489,76 Wash. 1
• Court: Washington Supreme Court
• Parties: SANDER et al. v. BULL et al. (WASHBURN et al., Interveners.

135 P. 489

76 Wash. 1

SANDER et al. v. BULL et al. (WASHBURN et al., Interveners.

Supreme Court of Washington

October 9, 1913

Department 1. Appeal from Superior Court, Kittitas County; Ralph Kaufman, Judge.

Action by Carl A. Sander and others against Charles Bull and others in which Henry Washburn and others intervened. From a judgment in favor of the plaintiffs and the interveners defendants Victor Zumbrunen and others appeal. Remanded, with directions.

Robt. F. Booth and R. G. Sharpe, both of Seattle, for appellants.

Bogle Graves, Merritt & Bogle, of Seattle, and John H. McDaniels and E. E. Wager, both of Ellensburg, for respondents.

GOSE, J.

This suit arose out of a controversy over the use of the waters of Wilson and Nanum creeks in the Kittitas Valley for irrigation purposes. These streams have their source in the mountains and flow southerly in separate canyons to the northerly end of the Kittitas Valley, where they unite and flow in a common stream for about a mile. The waters then divide; the Nanum creek flowing in a southeasterly direction, the Wilson creek in a southwesterly direction. The plaintiffs' lands are situated on the Wilson creek below the point of separation. The lands of the interveners are situated on the Nanum creek below the point of separation. The lands of the defendants (other than the defendant Ross) are situated upon one or both of the streams above the lands of the plaintiffs and interveners. The rights of the plaintiffs and the interveners are not in conflict; their respective rights having been determined in former litigation. The plaintiffs and the interveners make common cause against the defendants, and they in turn make common cause against the plaintiffs and interveners. The plaintiffs and the interveners prevailed in the trial court, and certain of the defendants have appealed. The record is a lengthy one, consisting of more than 1,000 pages. We cannot therefore follow the argument of the appellants in detail, but will only discuss the questions which appear to us to have the greatest merit.

The plaintiffs and interveners primarily rest their rights upon a prior appropriation of the waters of these streams. The court as against the defendants and each of them awarded the several plaintiffs and the several interveners a prior right to the use of one inch of water for each acre of land severally owned by them. It defined the term 'one inch of water' as 'an inch of water under four-inch pressure, measured according to the custom of miners, and is hereby defined to be an amount of water which will continuously and constantly flow through an orifice one inch square in a box maintained at a level in which a sufficient quantity of water is let to keep the surface thereof four inches above the center of such orifice; the bottom of such orifice being two inches above the bottom of such box.'

Appellants have argued at considerable length that a half inch of water per acre is sufficient for irrigation. The testimony, however, in this respect is conflicting, and we feel constrained to adopt the finding of the court. We are somewhat influenced by the fact that in earlier litigation between the plaintiffs, the interveners, and third parties three trial judges awarded this amount to the plaintiffs and interveners up to July 1st, and one-half inch per acre thereafter. The deduction after July 1st was no doubt made because of the inadequacy of the supply of water. Appellants, other than Ross, claim both by prior appropriation, and as riparian owners. Ross claims a right by prescription. The appellants also contend that the plaintiff Sander has lost the right to a mill power by abandonment. The plaintiffs and interveners claim (1) by prior appropriation, and (2) as riparian owners. Some of the appellants also contend that, as owners of place land embraced in the grant to the Northern Pacific Railroad Company, there could be no appropriation as against them subsequent to the date upon which the company filed its map of definite location. These suggestions require a consideration of the law of the case.

The waters of these streams were not subject to appropriation after the 24th day of May, 1884, the date upon which it is agreed the railroad company filed its map of definite location. The company acquired no vested interest in the granted lands prior to that time. It was then that the grant took effect. Before that time it was public land, and as such subject to entry, and subject to the law of prior appropriation. Nelson v. N. P. Ry. Co., 188, U.S. 108, 23 S.Ct. 302, 47 L.Ed. 406.

Appropriation of water consists in an intention to appropriate followed by reasonable diligence in applying the water to a beneficial use. Offield v. Ish, 21 Wash. 277, 57 P. 809; Longmire v. Smith, 26 Wash. 439, 67 P. 246, 58 L. R. A. 308. Water may only be appropriated from streams flowing upon public lands (Longmire v. Smith, supra), and before riparian rights are initiated or acquired ( Sturr v. Beck, 133 U.S. 541, 10 P. 350, 33 L.Ed. 761; Still v. Palouse Irr. Co., etc., 64 Wash. 606, 117 P. 466; Benton v. Johncox, 17 Wash. 277, 49 P. 495, 39 L. R. A. 107, 61 Am. St. Rep. 912; Gose v. Blalock, 21 Wash. 75, 57 P. 342; Sander v. Wilson, 34 Wash. 659, 76 P. 280; Nesalhous v. Walker, 45 Wash. 621, 88 P. 1032; Mason v. Yearwood, 58 Wash. 276, 108 P. 608, 30 L. R. A. [N. S.] 1158).

In Sturr v. Beck, in discussing this question, the court said: 'When, however, the government ceases to be the sole proprietor, the right of the riparian owner attaches, and cannot be subsequently invaded. As the riparian owner has the right to have the water flow ut currere solebat, undiminished except by reasonable consumption of upper proprietors, and no subsequent attempt to take the water only can override the prior appropriation of both land and water, it would seem reasonable that lawful riparian occupancy with intent to appropriate the land should have the same effect.'

In Benton v. Johncox, after observing that water is an integral part of the soil over which it flows, that the riparian rights of a patentee of the government attach by relation at the inception of his title, and will be protected as against subsequent appropriation of the water naturally flowing over the land, the court said: 'Moreover, the doctrine of appropriation applies only to public lands, and, when such lands cease to be public and become private property, it is no longer applicable. Gould, Waters, § 240; Pomeroy, Riparian Rights, § 30; Curtis v. La Grande Water Co., 20 Or. 34, 23 P. 808.'

In the Nesalhous Case, the court said: 'The right to appropriate water for mining and agricultural purposes from water courses on the public domain is sanctioned by acts of Congress, and recognized by all the courts; but, when the government ceases to be the sole proprietor, the right of the riparian owner attaches, and cannot be subsequently invaded in those states where the common-law doctrine of riparian rights prevails.'

In Mason v. Yearwood, we said: 'As we held in Nesalhous v. Walker, 45 Wash. 621, 88 P. 1032, the common-law doctrine of riparian rights prevails in this state, and that, where rights to lands across which a stream of water flows are acquired or initiated prior to any apropriation of the waters of the stream, the rights of the riparian proprietors are determined by the rules of the common law relating to riparian proprietors, and not by any rule of prior appropriation.'

The language quoted from Benton v. Johncox was used after referring to Laws 1873, p. 520, and disposes of the contention of the plaintiffs and interveners, i. e., that that act destroys riparian rights in Yakima county which them embraced Kittitas county.

One seeking to appropriate the waters of a stream must own the land sought to be irrigated, 'or be an actual bona fide settler, having a possessory interest. There must be evidence of an intent to acquire title.' No rights flow from the diversion and use of water by a mere squatter. Avery v. Johnson, 59 Wash. 332, 109 P. 1028. See, also, Kendall v. Joyce, 48 Wash. 489, 93 P. 1091.

To constitute abandonment, an intent to abandon and an actual relinquishment must concur, 'for courts will not lightly decree an abandonment of property so valuable as that of water in an irrigation region.' Miller v. Wheeler, 54 Wash. 429, 103 P. 641, 23 L. R. A. (N. S.) 1065.

Ross could not claim a prescriptive right so long as water reached the plaintiffs and interveners in an amount equal to their prior appropriation. Miller v. Wheeler, supra. A prescriptive right to the use of water is not initiated until the owners of the water 'are deprived of its use in such a substantial manner as to notify them that their rights are being invaded.' Long on Irrigation, § 90; Hall v. Blackman, 8 Idaho, 272, 68 P. 19; McCoy v. Huntley, 60 Or. 372, 119 P. 481.

The appellants contend that there is no evidence tending to show that the southwest 1/4 of the northeast 1/4 of section 25, township 18 north, of range 18 east (known as the Walters tract), has ever been irrigated from the waters of Wilson creek. We cannot agree with this contention. The plaintiff Sander acquired this land from the Northern Pacific Railway Company. This tract was a part of its grant. Its history is this: One Emerson was in possession of it in 1883 or 1884, under a card from the railroad company. The card was an agreement on the part of the company to sell the land as soon as it acquired title. He transferred his right to one Walters. Walters transferred to Sander in 1887, and the company thereafter conveyed the land to Sander. The evidence shows that the tract was irrigated; but there is no evidence that it was irrigated prior to the 24th day of May, 1884, the date upon...