State v. Steiner

• Decision Date: 01 June 1910
• Citation: 58 Wash. 578,109 P. 57
• Parties: STATE ex rel. McCONIHE v. STEINER, Judge.
• Court: Washington Supreme Court

109 P. 57

58 Wash. 578

STATE ex rel. McCONIHE v. STEINER, Judge.

Supreme Court of Washington

June 1, 1910

Department 1. Writ of prohibition by the State of Washington, on the relation of L. F. McConihe, against R. F. Steiner, as judge of the superior court of Grant county. Alternative writ made peremptory.

E. W Husted and P. C. Sullivan, for relator.

Peacock & Ludden, for respondent.

FULLERTON J.

In this proceeding the relator seeks a writ of prohibition against the superior court of Grant county prohibiting it from proceeding to vacate, modify, or set aside a certain judgment or decree entered in that court on March 23 1910, in an action pending therein, wherein C. Victor Martin and William Turner were plaintiffs, and the relator was defendant. The complaint on which the action was tried is not set out in the record, but it can be gathered from what is made to appear that the plaintiffs sued to enjoin the defendant from interfering with their claimed right to divert from Moses Lake in Grant county water to the extent of 200 inches, miners' measure, under a 6-inch pressure, for irrigating, stock, and domestic purposes. To the complaint an answer was filed, which put in issue its allegations of superior rights, and, by way of an affirmative answer, set up a right in the defendant McConihe to the waters of the lake and to Crab creek, a tributary thereof, to the extent of 4,700 cubic feet per second of time. The action was brought on for trial on March 23, 1910. On the call of the case, the plaintiffs stated to the court the issues making up the controversy between the parties, and then produced witnesses who gave evidence tending to substantiate the allegations of the complaint, or, as the court states in its return evidence ample, in the absence of a contrary showing, to sustain the plaintiffs' contention. The defendant then proceeded to offer evidence on his own behalf, whereupon the court inquired of their attorney whether he proposed to controvert the case made by the plaintiffs, and was answered to the effect that he did not; that the defendant would have to admit that the plaintiffs' rights in the waters of the lake were superior to their own. The attorney for the plaintiffs then stated that the plaintiffs had no controversy with the defendant except on the question of priority, and, if the defendant was willing to admit that the plaintiffs' rights were superior to the defendant to the amount of water claimed by them, he had no objection to a decree in the defendant's favor, provided it was made subject to the plaintiffs' decree. The court thereupon directed a decree accordingly; no other proofs being taken.

Subsequently two sets of findings and decrees were submitted for the judge's approval, which after explanation were signed by him, and filed as decrees and judgments of the court. The material part of the decree in favor of the plaintiffs was as follows:

'(1) That the plaintiffs are the owners of the first right to divert the waters of Moses Lake, in grant county, state of Washington, to the extent of 200 inches, miners' measure, under a 6-inch pressure, and to use the same for irrigation, stock, and domestic purposes.

'(2) That the claims of the defendants and each of them in and to the waters of said lake adverse to the aforesaid rights of the plaintiffs are without foundation, and all the rights of the defendants, or either of them, in and to the waters of said lake, are subsequent and inferior to the aforesaid rights of the plaintiffs.

'(3) That the defendants, and each of them, are hereby forever enjoined from claiming any right, title, or interest in or to the waters of said Moses Lake adverse to the right of the plaintiffs to divert and use 200 inches of said water, miners' measure, under a 6-inch pressure, and that the said defendants, and each of them, are hereby forever enjoined from in any wise interfering with the plaintiffs' use and enjoyment is said right.

'(4) That the plaintiffs have and recover from the defendants their costs and disbursements in this action.'

That of the defendant was as follows:

'(1) That the defendant L. F. McConihe is the owner of the right to store water for the purpose of irrigation, stock, and domestic uses in Moses Lake and Crab creek, in Grant county, Wash., except only as hereinafter stated, to the extent of 1,000 cubic feet per second of time.

'(2) That said defendant L. F. McConihe is the owner of the right to divert the waters of said Moses Lake, and that part of Crab creek extending from its source in section 16, township 21 north, range 27 east, W. M., in said county and state, commonly known as the first rise of Crab creek, to the point where said Crab creek empties into said Moses Lake, Wash., all in Grant county, Wash., together with all the underground waters lying, flowing, and being beneath said Moses Lake and that part of Crab creek above described, and appurtenant to said lake and creek, except only as hereinafter stated, to the extent of 4,700 cubic feet of water per second of time, and to use the same for irrigation, stock, and domestic purposes.

'(3) The rights to store, divert, and use the waters of Moses Lake and Crab creek above decreed to the said defendant L. F. McConihe are subject only to the prior right of C. Victor Martin and William Turner to the diversion and use of the waters of said Moses Lake for lake purposes to the extent of 200 miners' inches per second of time, under 6-inch pressure, as adjudged to them under decree of even date herewith.'

On April 13, 1910, one James O'Sullivan, an attorney appeared before the court, and as amicus curiae orally moved the court to vacate the decrees, stating as grounds therefor that they were entered by...