Shotwell v. Dodge

• Court: United States State Supreme Court of Washington
• Writing for the Court: STILES, J. HOYT, J.
• Citation: 8 Wash. 337,36 P. 254
• Decision Date: 01 March 1894
• Parties: SHOTWELL ET AL. v. DODGE.

36 P. 254

8 Wash. 337

SHOTWELL ET AL.
v.
DODGE.

Supreme Court of Washington

March 1, 1894

Appeal from superior court, Thurston county; M. J. Gordon, Judge.

Action by James H. Shotwell and Stanley Smith against R. B. Dodge to recover damages for diversion of a stream. From a judgment for plaintiffs, defendant appeals. Reversed.

Jas. A. Haight, for appellant.

John P. Judson, for respondents.

STILES, J.

The respondents move to strike the bill of exceptions containing the evidence in this case, on the ground that no error is assigned upon any matter excepted [8 Wash. 338] to in the bill itself. The point, we think, is not well taken. The exception is contained in the record, being an exception to the refusal of the court to grant a new trial on the ground that the verdict was not sustained by the evidence. The bill of exceptions is merely a part of that exception, containing, as it does, all the evidence introduced at the trial. Where the error alleged is the refusal of the court to grant a new trial on the ground of the insufficiency of the evidence, the only way to correct the error in this court is by presenting all the evidence in the case, either in the form of a bill of exceptions or statement of facts. The motion is therefore denied.

The complaint in this case is for the diversion of water from a flowing stream, to the plaintiffs' damage. The complaint alleges that the plaintiffs were at the date of the commencement of the action, and at all times in the complaint mentioned, the owners of a certain tract of land described, and were in possession thereof, and that they and their grantors had owned said land, and been in the sole and exclusive possession of the same, since the year 1854; that the defendant owned a half section of land lying immediately north of, and adjoining, plaintiffs' tract; that through the lands of both parties a brook or creek, viz. Mima creek, flowed from north to south, within a well-defined channel, protected by natural banks; that plaintiffs, in 1891, built a dam across Mima creek, upon their own land, and constructed various ditches therefrom, to irrigate their lands in connection with their farming operations, in raising hops, grain, vegetables, and fruits, and also for the purpose of conveying the waters of the stream to their dwellings and barns, to use the same for domestic purposes; that the land was entirely dry, and without irrigation was not productive; that in 1892 the defendant built a dam across the creek, on his land, whereby he completely stopped the water from flowing in its accustomed channel through plaintiffs' [8 Wash. 339] land, as it was accustomed to flow, [36 P. 255] and from flowing into and through plaintiffs' ditch; that in connection with his dam the defendant also constructed a ditch by which he carried the water of said creek eastward, over his own land, where he permitted it to scatter and waste, without providing any artificial channel for its return to the bed of the creek. The damages laid for a diversion of the water were $5,000, and special damages were also pleaded, by showing that a crop of hops which plaintiffs grew on their lands in 1892 was decreased in value in the sum of $1,000; and $250 was claimed for the plaintiffs' deprivation of water for domestic purposes. The defendant demurred to this complaint for the reason that there was no allegation that the plaintiffs had the right to use the water of the creek, or any portion of it. It will be observed that one of the grounds of damage alleged is the mere diversion of the water from its accustomed channel; and appellant's position is that such action, coupled with the allegations of waste which the complaint contains, is insufficient in law to base a claim of damages upon. Every owner of land, through which a natural stream of water ordinarily flows, is entitled to have such flow continued without interruption or...