State v. American Fruit Growers, Inc.

• Decision Date: 26 June 1925
• Docket Number: 18107.
• Citation: 135 Wash. 156,237 P. 498
• Parties: STATE v. AMERICAN FRUIT GROWERS, Inc., et al.
• Court: Washington Supreme Court

237 P. 498

135 Wash. 156

STATE v. AMERICAN FRUIT GROWERS, Inc., et al.

No. 18107.

Supreme Court of Washington, En Banc.

June 26, 1925

Appeal from Superior Court, Chelan County; Grimshaw, Judge.

Action by the State against the American Fruit Growers, Inc., and others, to determine water rights. From the judgment, certain defendants appeal, and others cross-appeal. Reversed and remanded.

D. A. Shiner, of Wenatchee, S. H. Kelleran, of Seattle, W. O. Parr, Hughes & Wallace, Fred Kemp, Corbin &amp Easton, Barrows & Hanna, and O. P. Barrows, all of Wenatchee for appellants.

Reese H. Voorhees, of Spokane, amicus curiae.

John H Dunbar, of Olympia, and Fred J. Cunningham, of Spokane, for the State.

BRIDGES J.

This is an action under the Water Code (sections 7364, 7377, Rem. Comp. Stat.), to determine the rights to the waters of Stemilt creek in Chelan county, of several hundred landowners, but a few of whom have appealed.

The stream is some 12 miles in length, and drains about 40 square miles of territory, some of which is from 3,000 to 6,000 feet above sea level. All of the land tributary to the creek is arid, but much of it is capable of producing large farm crops when properly irrigated. The creek has its source in the mountains, and empties into the Columbia river near the city of Wenatchee. Much of the land in the lower stretches of the creek is at present, and for a good many years has been, in a high state of cultivation. During at least a part of the irrigating season there is not sufficient water in the creek to properly irrigate all of the agricultural and irrigable lands tributary to it. It appears that many of the lands in controversy are nonriparian to the creek, and have been supplied with water by means of diverting ditches.

The controversy was referred to the Honorable Marvin Chase, state supervisor of hydraulics, who made findings and a report, and attached thereto a map showing the lands and ditches involved in the determination of the water rights. For the most part the trial court adopted the findings of the referee, but in some instances refused to do so. Landreth Bros. Lumber Company and the Inland Lumber Company have joined in the appeal, and we shall henceforth refer to them as Landreth Bros. There were also a number of cross-appeals.

A motion has been made to dismiss the cross-appeals of J. F. Black and C. B. Knouf and wife, for the reason that their notices of appeal were not filed within 60 days after the date of the entry of the decree. The statute with reference thereto reads as follows:

'Appeal may be taken to the Supreme Court from such decree in the same manner as in other cases in equity, except that notice of appeal must be both served and filed within 60 days from the entry thereof.' Section 23, c. 117, Laws 1917.

The record shows that these notices of appeal were served within the 60-day period, but were not filed with the clerk of court until the sixty-first day.

Our general appeal statute requires that the notice of appeal be served within 90 days from the date of the entry of the decree or judgment, and that within 5 days after the service, the notice, together with the proof of service thereof, shall be filed with the clerk of court. Sections 1718, 1719, Rem. Comp. Stat. Under this statute we have several times held that, where the notice of appeal was served within the statutory period, but was not filed within the time mentioned by the statute, the appeal would not be dismissed. In Reynolds v. Reynolds, 42 Wash. 107, 84 P. 579, we said:

'It is conceded in this case that a proper notice was served within time, and that proof thereof was subsequently made, but not within time. This latter statute [Laws 1899, p. 79] was evidently intended to cover such cases. Since the appeal appears not to have been delayed, or respondents injured in any way, the motion to dismiss is denied without terms.'

In the case of Seargent v. Russell, 110 Wash. 216, 188 P. 466, the same question was before us. There the notice of appeal had been served within the statutory period, but the proof of service was not made until a short time before the case was heard in this court. On the authority of Reynolds v. Reynolds, supra, we refused to dismiss the appeal.

In Gazzam v. Young, 114 Wash. 66, 194 P. 810, the same question arose, and we made the same ruling.

The substance of the holdings of this court is that service of a notice of appeal within the statutory period is jurisdictional, but the failure to file the notice within the statutory period is merely an irregularity, and is not jurisdictional.

Applying the doctrine of the cases cited to the facts and the statute involved, we deny the motion to dismiss.

Landreth Brothers' Appeal.

The Landreth Bros. Lumber Company and Inland Lumber & Timber Company, joint appellants, own several sections of land on the upper stretches of Stemilt creek. It seems to be conceded that these lands are riparian to the creek. They are for the most part so-called Northern Pacific lands, and were segregated from the public domain in 1884. They were originally bought, and for a long time have been held, for the standing timber thereon. This timber was at the time of the trial, and for some time prior thereto, being logged, but much of it remains untouched. The lands are at an elevation of from 3,000 to 5,000 feet above sea level. Snow and frost come early in the fall and leave late in the spring. The trial court held that these lands were not agricultural, and had no riparian rights for that use, and were awarded water for stock and domestic use only.

There is testimony to the effect that, because of the extreme elevation of these lands, their distance from any market, the difficulty of transportation, the expense of clearing and getting water on the land, none of it can be successfully used for agricultural purposes. There was testimony that the snow and frost come early in the fall and leave very late in the spring, and that it frosts nearly every night of the year. On the contrary, there is testimony showing that while but a few small patches of this land have been cultivated, and that largely for domestic purposes, much of it is of such character that when the timber is removed and the land cleared it can be successfully used for agricultural purposes.

It is, of course, always a question of fact whether certain land may be considered as agricultural, and witnesses will naturally differ in their opinions, because almost any kind of land will raise some kind of a crop. The trial court is very favorably situated to judge correctly of matters of this character, and we should not overrule his judgment unless we are convinced that the weight of the testimony is against him. A reading of the abstract of the testimony fails to convince us that this land can or ever will be successfully used for farming purposes.

But there is another matter that should be considered in this connection. It is conceded that these lands have been held from the beginning of private ownership for the value of the timber upon them and not for agricultural purposes. Substantially no effort has been made to cultivate those from which the timber has been removed. There is but little testimony tending to show that there is any present intention on the part of appellants ever to farm this land or any part of it. In Brown v. Chase, 125 Wash. 542, 217 P. 23, we stated that this court had not only modified the common-law doctrine as applied to irrigation, but had ingrafted upon it 'the necessity of beneficial use by the riparian owner,' and that 'waters of nonnavigable streams in excess of the amount which can be beneficially used, either directly or prospectively, within a reasonable time, on, or in connection with, riparian lands, are subject to appropriation for use on nonriparian lands.' In other words, the riparian owner, before he has any rights to protect, must with reasonable certainty show that either at present or within the near future he will make use of the water for irrigation purposes. This proof is lacking. It is entirely problematical whether these lands can or will be used for agricultural purposes.

Under all the circumstances, we believe the trial court was right in coming to the conclusion he did.

Cross-Appeals of Chase, Groff, Cammack, and Rose & Nelson.

The supervisor of hydraulics, as referee, found that there were various springs located on some of the lands owned by these cross-appellants, the waters of all of which found their way into Stemilt creek. He also found that 'the water flowing from such springs into Stemilt creek belong to that stream and should be treated as a tributary. However, any increase in flow after irrigation is commenced is undoubtedly return seepage water from reservoirs, ditches, and irrigation, and is the property of persons owning the land on which the springs are located, provided the water can be appropriated and put to beneficial use.' It will thus be seen that the referee determined that such portion of the springs as represented seepage water belonged to the person upon whose lands the springs originated, provided he could beneficially use them.

The court for the most part adopted these conclusions of the referee, but added certain limitations concerning the use of these seepage waters, which limitations are involved in these cross-appeals. It appears from the testimony that for many years it has been the custom of these cross-appellants to ascertain the amount of seepage water coming from these springs and allow it to flow into the main creek, and to then go some distance up the stream and take therefrom an amount of water equal to the seepage that has been allowed to flow into the creek. If they must take this seepage water...