Stranger Creek and Tributaries in Stevens County, In re

• Citation: 77 Wn.2d 649,466 P.2d 508
• Decision Date: 26 February 1970
• Docket Number: No. 39892,39892
• Parties: In the Matter of the Determination of the Rights to the Use of the Waters of STRANGER CREEK AND its TRIBUTARIES IN STEVENS COUNTY, Washington, in Accordance with the Provisions of Chapter 90.03 Revised Code of Washington. M. G. WALKER, As Supervisor of Water Resources for the State of Washington, Respondent, v. John O. ALBY et al., Respondents, The State of Washington, Appellant.
• Court: United States State Supreme Court of Washington

Page 649

77 Wn.2d 649

466 P.2d 508

In the Matter of the Determination of the Rights to the Use

of the Waters of STRANGER CREEK AND its

TRIBUTARIES IN STEVENS COUNTY,

Washington, in Accordance

with the Provisions of Chapter 90.03 Revised Code of

Washington. M. G. WALKER, As Supervisor of Water

Resources for the State of Washington, Respondent, v. John O. ALBY et al., Respondents, The State of Washington, Appellant.

No. 39892.

Supreme Court of Washington, En Banc.

Feb. 26, 1970.

Rehearing Denied May 8, 1970.

As Modified May 8, 1970.

Slade Gorton Atty. Gen., Olympia, Theodore O. Torve, Asst. Atty. Gen., for appellant.

Slade Gorton, Atty. Gen., Olympia, Charles B. Roe, Jr., Charles A. Kimbrough, Asst. Attys. Gen., for respondent.

NEILL, Justice.

This is an appeal by the Department of Natural Resources from a decree confirming the report of the referee in a water rights adjudication proceedings. Pursuant to RCW 90.03.110--.240, a petition was filed for adjudication of the rights to the waters of Stranger Creek, a small, non-navigable water course in Stevens County. Thirty-one claims to the waters were filed.

The Department of Natural Resources, hereinafter called the department, manages and administers the public trust lands ¹ of the state. Included in these trust lands are two 80-acre tracts riparian to Stranger Creek.

Title to one parcel passed from the federal government to the state on April 21, 1960, as part of the 90,000-acre Enabling Act grant dedicated to the support of agricultural colleges. See Act of February 22, 1889, 25 Stat., ch. 180, § 16, p. 681. Title to this parcel was transferred to the state subject to existing rights under a federal grazing lease.

The second parcel was acquired by the state upon admission to the Union, November 11, 1889, as part of the Enabling Act grant of two sections per township for the support of common schools. See Act of February 22, 1889, 25 Stat., ch. 180, § 10, p. 679. This parcel has been under state grazing leases since 1955.

The most beneficial use of these public lands is for cattle grazing and forestry. Since at least 1887, the waters of the creek have been used by stock drinking directly from the stream. Direct access to the water is essential to the use of these lands for grazing purposes.

The department's statement of claim in the proceedings asserts a right to waters riparian to both parcels for stockwater purposes. The claim is for a maximum of .005 cubic feet of water per second on the two parcels, based on both riparian and appropriative rights. The claim states:

The state expressly claims a stockwater right in connection with those parcels of state owned land across and over which Stranger Creek or its tributaries flow. The state claims any other riparian and appropriative interest which may properly be claimed as possessed by the United States and conveyed to the state by the clear list described herein (I.e., the 1960 parcel).

The respondent, the Supervisor of Water Resources, filed his referee's report with the superior court in which he recommended disposition of the claim of the department as follows:

6. Claimant No. 3, Department of Natural Resources, State of Washington, having jurisdiction over state 'school lands' in the Stranger Creek drainage, has appeared as a riparian owner and claimed a riparian right to the use of Stranger Creek for stock watering purposes on said lands. While these school lands are suitable for stock grazing purposes, and have been used for the same in the past, the Referee, understanding the cases of In re (Waters of) Doan Creek, 125 Wash. 14 (215 P. 343) (1923) and In re Crab Creek and Moses Lake, 134 Wash. 7 (235 P. 37) (1925) to hold that riparian rights on a stream on school lands do not attach until such lands pass into private ownership, rejects said claim.

The department excepted to the above portion of the referee's report, but the trial court affirmed and incorporated the entire report in its final decree. The department appeals, urging that the cases of In re (Waters of) Doan Creek, 125 Wash. 14 (215 P. 343) (1923) and In re Crab Creek and Moses Lake, 134 Wash. 7 (235 P. 37) (1925), relied upon by the court and the referee as set forth (above), which hold that riparian rights do not attach to granted trust lands under jurisdiction of appellant until such lands pass into private ownership, should be overruled, and that appellant should be granted stockwater rights based on his riparian claim; said rights to include an amount of water flowing across lands of appellant as are sufficient to satisfy requirements for stock grazing thereon drinking directly from the stream.

No contention is made to us as to the state's appropriative rights; so we do not consider the matter.

The substance of the department's contention is that the holding in In re Crab Creek and Moses Lake, 134 Wash. 7, 235 P. 37 (1925), works to the detriment of the public by obstructing efficient management of the state's school and other trust lands, that the holding is not compelled by Const. art. 21, § 1, and that cases relied upon by the referee and the trial court should be overruled. The department thereby asks us to reexamine the question: Are the state's trust lands entitled to the same riparian water rights that would inure to their benefit if they were in private ownership?

At the outset, we are confronted with the supervisor's assertion that the doctrine of stare decisis precludes us from entertaining the department's contention. Counsel for the supervisor calls our attention to the principles on which that doctrine is based. He correctly posits the importance of continuity in the law and the necessity of respect for precedent if we are to remain a society of laws and not of men. He aptly reminds us that these considerations are all the more weighty when change is likely to disrupt a statuts quo which was established in reliance upon prior pronouncements. While these propositions are eminently correct, the question remains whether they are dispositive here. The department observes that there has been no showing that an established status quo will, in fact, be disrupted by an alteration of precedent.

Stare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change. Without the stabilizing effect of this doctrine, law could become subject to incautious action or the whims of current holders of judicial office. But we also recognize that stability should not be confused with perpetuity. If the law is to have a current relevance, courts must have and exert the capacity to change a rule of law when reason so requires. The true doctrine of stare decisis is compatible with this function of the courts. The doctrine requires a clear showing that an established rule is incorrect and harmful before it is abandoned. Thus understood, the doctrine of stare decisis does not preclude consideration of the department's arguments.

Before turning to the holding of Crab Creek, supra, a short resume of the history of our treatment of riparian water rights in state trust lands will serve to place the current issue in perspective. In State ex rel. Olding v. Stampfly, 69 Wash. 368, 125 P. 148 (1912), we held that waters from a stream could be appropriated prior to statehood by private, nonriparian owners as against any riparian rights of the state in its school lands. We there traced the history of congressional treatment of lands held in the public domain, observing that Congress had permitted appropriation of waters on the public domain to the extent that local law and custom permitted. It followed that, when specific lands were conveyed by the federal government to the state in 1889 as part of the trust lands under the Enabling Act, the state acquired such lands subject to then existing rights of appropriators. Olding was followed by Colburn v. Winchell, 97 Wash. 27, 165 P. 1078 (1917), wherein we held that waters of a nonnavigable stream on state school lands are not subject to appropriation since those waters are part of the soil and held in trust. This ruling was based on § 10 of the Enabling Act and §§ 1 and 2, art. 16, of the constitution. Thus, under Olding and Colburn, it was our position that waters of nonnavigable streams on state trust lands were subject to vested rights of appropriators as of the date of statehood, but that the riparian rights of the state barred any subsequent appropriations.

Then, 6 years later, in In re Waters of Doan Creek, 125 Wash. 14, 215 P. 343 (1923), we held that private riparian water rights do not attach to school (trust) lands until the lands are sold to private owners. Colburn, supra, was neither considered nor cited.

Two years later in In re Crab Creek and Moses Lake, Supra, we treated the Doan Creek case as holding that no riparian rights attach to state lands until they pass into private ownership without reference to the holding in Colburn, supra. Recognizing the dichotomy between the two positions, we chose to follow the Doan Creek position on the basis that Const. art. 21, § 1 constituted a wavier of riparian rights in state trust lands. Accordingly, since 1925, it has been the rule that state trust lands do not have riparian water rights, that such rights attach only upon transfer of the land into private ownership, and that appropriative water rights vesting prior to transfer of the land by the state are superior to the riparian rights which then attach.

It is apparent to us that the court in Crab Creek was not speaking from constitutional compulsion, but rather was employing a constitutional interpretation as a means of protecting the principle of beneficial use from the obstacle posed by the traditional common law concept of riparian rights. Const. art. 21, § 1 does not, by its terms, waive riparian water rights in state trust lands. Nor is it essential to so read it in order to avoid...