Thorp v. McBride

• Decision Date: 20 September 1913
• Court: Washington Supreme Court
• Parties: THORP et ux. v. McBRIDE.

135 P. 228

75 Wash. 466

THORP et ux. v. McBRIDE.

Supreme Court of Washington

September 20, 1913

Department 2. Appeal from Superior Court, Okanogan County; E. K Pendergast, Judge.

Action by J. S. Thorp and wife against J. W. McBride. Judgment for defendant, and both parties appeal. Reversed on plaintiff's cross-appeal and remanded, with instructions to grant plaintiff's relief.

L. H Prather, of Spokane, and Neal & Neal, of Conconully, for appellant.

Smith &amp Gresham, of Conconully, for respondent.

MORRIS J.

This is a contest over a water ditch and the use of the water flowing therein. There is much testimony and much conflict, but we find the facts to be as follows: In 1899 appellant purchased the location rights to the commonwealth placer mining claim in Myers creek mining district in Okanogan county and in October, 1901, obtained a patent. No mineral was ever discovered within the boundaries of the placer claim, and it is apparent that the real intent of the location was for town-site purposes upon which to locate the town of Bolster. In October, 1899, appellant constructed a small ditch from Myers creek and conveyed water from the creek to the town site, a distance of about 2 3/4 miles. For part of this distance the water was conveyed through the ditch and the remainder of the way through a small flume; the ditch and flume being over and upon public lands. An attempt was made to appropriate the water by posting and recording a water notice. It is, however, conceded that this notice was deficient and no rights are now predicated thereon. The carrying capacity of the ditch and the amount of water flowing therein cannot be determined by the evidence, nor can we find that it was used by the appellant for any purpose other than the washing of gravel for a few hours in the fall of 1899 and a like use in subsequent years, possibly as late as 1904, though the evidence as to this later use is so indefinite and so contradictory that it is difficult to make a finding thereon. Bolster did not prosper, and in 1902 it was and has since remained a deserted village. Upon reaching the town site the water was permitted to run wild; no attempt being made to confine it to any particular channel or store it for future use. It is probable, although the evidence is not clear, that a small portion of the water was used by the few inhabitants of Bolster as late as 1901. The evidence also discloses that some of the inhabitants obtained water from artesian wells and others from Myers creek. Some use was also made of the water in making a few thousand brick and for mixing plaster. It is also testified to that the water was used for filling the vats used by a small shingle mill although we are inclined to the view that the weight of the evidence is to the effect that the shingle mill obtained the small amount of water it required first from Nicholson creek and later on, after it changed its location, from Myers creek. It is impossible to determine the amount of water it used, but it must have been a small amount, and, as before stated, the great body of the water after reaching Bolster was permitted to run to waste. The evidence does not disclose any use made of this water by any one at Bolster subsequent to 1901. In 1902 respondents located a homestead upon the lands across which the ditch ran, and appellant informed them they might tap the ditch and make such use of the water as they desired. Later on, and in the same year they made inquiry as to appellant's right to the water and the ditch and convinced themselves that appellant had no valid right to either, and from this time, while there is...