Still v. Palouse Irr. & Power Co.

• Decision Date: 19 August 1911
• Court: Washington Supreme Court
• Parties: STILL et al. v. PALOUSE IRRIGATION & POWER CO. et al.

117 P. 466

64 Wash. 606

STILL et al. v. PALOUSE IRRIGATION & POWER CO. et al.

Supreme Court of Washington

August 19, 1911

Department 2. Appeal from Superior Court, Whitman County; H. W Canfield, Judge.

Action by Milan Still and others against the Palouse Irrigation &amp Power Company and others. From a judgment for plaintiffs defendants appeal. Affirmed.

Cannon, Ferris, Swan & Lally, for appellants.

Milan Still, for respondents.

MORRIS, J.

It was sought in this suit to enjoin defendants from constructing and maintaining a dam across the mouth of Rock Lake for the purpose of utilizing the lake as a storage reservoir. The court below so decreed as to the defendant Irrigation & Power Company, from which this appeal is taken.

Rock Lake is a navigable body of water, about nine miles long and from one-half a mile to three miles wide. Its outlet is Rock creek, which flows westerly to a junction with Palouse river. Respondents are the owners of lands about 10 miles west of Rock Lake, through and across which Rock creek flows. The appellant company is the owner of lands bordering the mouth of the lake, also lands riparian to the Palouse river below its junction with Rock creek, and other lands still further down in the Washtucna coulee. Respondents' lands are in four tracts, and were acquired at different times--two tracts by federal patent in 1901 and 1902, and two by purchase from federal grantees in 1897 and 1904. Rock creek is a small stream, but in the late winter and early spring the rains and melting snow cause the waters of the lake to rise, increasing the flow of the creek until it flows through natural channels over respondents' lands, covering in flood season about 100 acres, which, by reason of its deposits and watering of the land at a time when the crops are dormant, is of great benefit to respondents. For the purpose of utilizing these flood waters and controlling the flow over their lands respondents have constructed small dikes and dams across the overflow channels. They have also a small irrigating system to reach lands not covered by the overflow. The appellant company in 1909 and 1910 constructed a dam three feet high across the mouth of the lake; its purpose being to use the lake as a reservoir for the impounding of its waters. The dam is constructed with gates, and the contemplated purpose is to leave the gates open until the flood waters of the early spring rise above the dam, when the gates will be closed, and a body of water, 3 feet deep over the entire area of Rock Lake, about 6,600-acre feet of water, impounded for use in the summer months, in the irrigation of appellant's lands upon the Palouse river and in the Washtucna coulee. The court below found that the erection and maintenance of this dam as contemplated by appellant would be an unreasonable detention and obstruction of the wonted flow of Rock creek over and through respondents' lands, and entered a decree accordingly.

There can be no doubt but that the scheme of appellant, if permitted to impound the waters of the lake in the spring months, would cause a serious interference with respondents' use of the waters of Rock creek, diminishing and curtailing its natural flow, wholly preventing the annual spring overflow upon respondents' lands, which is their greatest asset and factor of value, except as appellant might at its option release the waters of the lake through the gates of its dam. Such an alteration in the natural flow of a stream is not permissible. A riparian owner, such as respondents are here shown to be, has a right to the natural flow of waters in their natural and accustomed channels without diminution or alteration, subject only to the same right and use in every other riparian owner, a right that is as much included in the ownership of the land as the soil itself, and can no more be interfered with by the acts of others. And, while the application of this doctrine has in some of the Western states sometimes been denied on the theory that the rules of the common law respecting riparian owners were inapplicable to conditions and necessities of the people in the particular localities where the cause of action arose, it has since its first announcement here invariably been upheld in this state, except where it has been subjected to a priority of appropriation. Crook v. Hewitt, 4 Wash. 749, 31 P. 28; Rigney v. Tacoma Light & Power Co., 9 Wash. 576, 38 P. 147, 26 L. R. A. 425; Benton v. Johncox, 17 Wash. 277, 49 P. 495, 39 L. R. A. 107, 61 Am. St. Rep. 912; New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 64 P. 735, 54 L. R. A. 190; Madson v. Spokane Valley Land Co., 40 Wash. 414, 82 P. 718, 6 L. R. A. (N. S.) 257; McEvoy v. Taylor, 56 Wash. 357, 105 P. 851, 26 L. R. A. (M. S.) 222. The contemplated detention of the waters of Rock creek through their impounding in the lake practically amounts to a total detention at unknown times, when, with their natural spring flow, they would be serving their best purpose to respondents. Water may not thus be gathered into reservoirs for future use, when it may best suit the convenience and use of one riparian owner, and thus deprive other riparian owners of their use and service of the stream in its natural condition, unless such right is exercised under a valid prior appropriation. Monroe v. Menzel, 35 Wash. 487, 77 P. 813, 70 L. R. A. 272, 102 Am. St. Rep. 905. Appellant purposes to release these waters in August or September, when they will be used to increase the natural flow of the Palouse river. Rock creek through respondents' lands can only accommodate about 100 cubic feet of water, and to permit these waters to then be released and flood the creek above its summer level would mean an overflow of its waters upon respondents' lands when they were in crop, with its consequent damage. Appellant insists that it is only using waste waters, and that it has the right to use the so-called flood waters, citing Edgar v. Stevenson, 70 Cal. 286, 11 P. 704, Live Stock Co. v. Booth, 102 Cal. 151, 36 P. 431, and Fifield v. Spring Valley Waterworks, 130 Cal. 552, 62 P. 1054, California cases, holding that a lower riparian owner who is not injured by the diversion of flood water above his land cannot restrain such diversion. The reasoning of those cases is that the lower owner is only entitled to the natural flow of the stream; and, so long as he continues to have such natural flow undiminished and his use of the water is not interfered with, he cannot complain, having suffered no damage. The water diverted in those cases was during times of extraordinary flood or freshets, and was water never used by the lower owner. Nor was his use diminished or interfered with.

Where however, as in this case, annual floods have caused streams to overflow from time immemorial, and such overflow has spread over lands, enriching and fertilizing them with its deposits, the California courts have invariably held that such waters were not subject to impounding by the upper owner, and that they were not extraordinary and unusual waters, within the meaning of Edgar v. Stevenson and like cases. In Miller & Lux v. Modera Canal & Irrigation Co., 155 Cal. 59, 99 P. 502, 22 L. R. A. (N. S.) 391, a case very similar to the one before us, it is said: 'There is no good reason for saying that the greatly increased flow, following the annually recurring fall of rain and melting of snow in the region about the head of the stream, is any less usual or ordinary than the much diminished flow which comes after the rains, and the melted snows have run off.' Again: 'It cannot be said that a flow of water occurring as these waters are shown to occur constitutes an extraordinary and unusual flow. In fact, their occurrence is usual and ordinary. It appears that they occur practically every year and are reasonably expected to do so, and an extraordinary condition of the seasons is presented when they do not occur. They are not waters gathered into the stream as the result of occasional and unusual freshets, but are waters which on account of climatic conditions prevailing in the region where the Fresno...