State v. Superior Court of Grant County

• Decision Date: 10 October 1912
• Citation: 70 Wash. 442,126 P. 945
• Court: Washington Supreme Court
• Parties: STATE ex rel. HAM, YEARSLEY & RYRIE v. SUPERIOR COURT OF GRANT COUNTY et al.

126 P. 945

70 Wash. 442

STATE ex rel. HAM, YEARSLEY & RYRIE v. SUPERIOR COURT OF GRANT COUNTY et al.

Supreme Court of Washington

October 10, 1912

Certiorari by the state, on the relation of Ham, Yearsley & Ryrie, a corporation, against the Superior Court of Grant County and another, judge, to review a judgment of the superior court denying relator's right to condemn certain rights claimed by the Northern Pacific Railway Company and R. F. Pettigrew. Judgment of the superior court reversed, with directions.

Voorhees & Canfield, of Spokane, for relator.

E. J Cannon and Graves, Kizer & Graves, all of Spokane, for respondents.

PARKER J.

The relator has caused to be brought to this court by writ of certiorari, for review, a judgment of the superior court for Grant county, denying to it the right to condemn and acquire by right of eminent domain a tract of land belonging to the Northern Pacific Railway Company and R. F. Pettigrew, upon which to construct a dam for use in connection with and as a part of certain irrigation works which it proposes to construct. The relator's right to acquire this land by condemnation rests upon its right to the water which it proposes to use in its irrigation project. That is if it has lawfully acquired by appropriation the right to so use the water, it then has the right to acquire the land by condemnation in aid of its irrigation project. Otherwise it has no such right to so acquire the land, since its public use of the land rests upon its ability to use it as a part of its irrigation works, and, of course, it can have no irrigation works if it has no water therefor. The right to the water being the controlling question in the case, we will review the facts disclosed by the record with a view to the determination of the relator's right thereto.

The relator is a domestic corporation, with power to acquire water rights, and to construct, own, and operate irrigation works such as are here involved. It is the owner of a large quantity of land aggregating some 25,000 acres lying in a southwesterly direction, and at a distance of from 14 to 20 miles from the southerly end of Moses Lake, in Grant county. This is semiarid land, but is capable of being rendered very productive by irrigation. A large portion of this land is capable of irrigation by gravity from Moses Lake and a large portion of it is capable of irrigation from the same source by pumping, provided a sufficient quantity of water therefor can be collected and stored in the lake for such use during the seasons when needed for that purpose. The Northern Pacific Railway and R. F. Pettigrew are the owners of the land which the relator seeks to condemn for its dam location bordering upon the shores of the lake, and are also the owners of a large quantity of land aggregating in amount approximately the same as the land owned by the relator. This land lies within a distance of some two or three miles of the shores of the lake, and a large part of it lies immediately bordering upon the shores of the lake. The record title to this land is in the Northern Pacific Railway Company, and R. F. Pettigrew has a contract with the Railway Company for the purchase thereof. There will be no occasion to make any distinction between the rights of the Railway Company and Pettigrew as we proceed, so we will hereafter refer to the land as belonging to both. This, like the land of the relator, is semiarid land, a large part of it being capable of irrigation and thereby rendered very productive. Very little, if any, of this land is capable of irrigation by gravity from the lake, but a large part of it is capable of irrigation by pumping therefrom, providing a sufficient quantity of water can be collected and stored in the lake for such use during the seasons when needed for that purpose. It is conceded that all of the available water which can be collected and stored in the lake will be needed for the proper irrigation of either the land of the Railway Company and Pettigrew or the land of the relator. There is therefore not here involved any question of the apportionment of such water.

Moses Lake is an inland body of fresh water some 15 miles long in a northerly and southerly direction, is of an average width of about one-half mile, is at present from 10 to 30 feet deep, and is navigable. Its shore lines were meandered by the United States government survey, and the uplands bordering thereon were patented by the government accordingly to the Railway Company and others. It is therefore plain that all of the bed and shore lands of the lake are subject to the ownership of the state as asserted by article 17 of the state Constitution. The general slope of the country both to the north and to south of the lake is southerly. Some distance to the north is a stream called Crab creek, into which several other streams flow. This is a considerable system of water courses. The waters of these streams do not ordinarily reach the lake over the surface, but in seasons of high water their waters do occasionally reach the lake over the surface. The lake is also fed by another stream flowing into it from the north, and is probably also fed to some extent below the surface of the ground. Whatever surface outlet the lake ever had was evidently at the southern end, where the slope of the country continues southerly and falls below the surface of the lake at a comparatively short distance from that end. Prior to the year 1904 the lake had no surface outlet within the memory of man. Running across the southerly end of the lake and reaching to the higher land on the east and west, the ground is elevated but little above the surface of the lake, and is composed largely of sand dunes, which up to that time held the water from flowing to the lower ground to the south. In that year the flood waters from Crab creek and its tributary streams caused the water of the lake to rise sufficient to flow over the lowest place in the sand dunes at its southerly end, when the water cut a channel there through which it continued to flow, lowering the lake below its prior normal level some eight or ten feet. Thus there was first formed the only surface outlet to the lake known to man. The purpose of the relator is to store water in the lake by raising the water to its former normal level, for use in irrigating its lands, and also the lands of others lying southerly and southwesterly from the lake. To this end, it is necessary to construct a dam at the outlet formed by the overflow of 1904. To acquire sufficient land upon which to construct such a dam, the relator commenced condemnation proceedings in the superior court for Grant county against the Railway Company and Pettigrew, the owners of the land at that point; and it is the judgment of that court denying the right of the relator to condemn such land which is sought by the relator to be reversed.

We have already noticed that the relator's right to condemn this land for its dam depends upon its right to the water. This right it claims by prior appropriation rested upon the posting and recording of appropriate notices, and the commencement and prosecution of work in pursuance thereof. The Railway Company and Pettigrew resist the claims of relator, claiming right to the water of the lake themselves by virtue of being owners of the upland bordering thereon, and by prior appropriation; and also claiming that the relator has not acquired any right to the waters of the lake by its claimed acts of appropriation because of the insufficiency of such acts to constitute a lawful appropriation, even if it could so lawfully acquire such right as against them. The claim of prior appropriation of the water made by the Railway Company and Pettigrew in the trial court was rested to some extent upon certain posted notices of appropriation. Those notices were, however, held by the trial court to be unavailing to them, and they are not here making any further claim under those notices. So far as their present claim by prior appropriation is concerned, they rest it upon certain work done by them looking to the impounding of water in the lake for the purpose of irrigating their land.

The claims of the Railway Company and Pettigrew for the waters of the lake are rested largely upon the fact that they are the owners of land bordering upon the shores thereof. This fact, it is contended by their counsel, gives them all the rights of riparian owners in the water of the lake, as if the water flowed in an unnavigable stream over their land, and, they being in need of all of the available water to irrigate their land, that no part of it is subject to appropriation by owners of land which does not border upon the lake. Thus is presented the question: Has the owner of upland bordering upon the shore line of an inland fresh water navigable lake any right to the water of such lake for the purpose of irrigating his land bordering thereon superior to the right of appropriation possessed by owners of land which does not border upon the shore line of the lake, under the laws of the state relating to the appropriation of water for irrigation? The Railway Company and Pettigrew claim the water as riparian owners of the land, first, by virtue of their common-law rights; and, second, by virtue of certain statutes of the state which they insist amount to a grant of a right of that nature to the owners of land bordering upon navigable water. We will notice these two grounds of their claims in this order.

The declaration of our state Constitution contained in section 1 art. 17, thereof, that 'the state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide in waters where the tide ebbs and flows, and...