Weed v. Goodwin

• Decision Date: 27 September 1904
• Parties: WEED et al. v. GOODWIN et al.
• Court: Washington Supreme Court

78 P. 36

36 Wash. 31

WEED et al. v. GOODWIN et al.

Supreme Court of Washington

September 27, 1904

Appeal from Superior Court, Kittitas County; Frank H. Rudkin, Judge.

Proceeding by Frank S. Weed and others against Thomas B. Goodwin and others for the condemnation of land for an irrigation ditch. From a decree in favor of complainants, defendants appeal. Affirmed.

Graves & Englehart, for appellants.

Hovey &amp Hale, for respondents.

MOUNT, J.

This proceeding is to appropriate certain lands for a private irrigation ditch for agricultural purposes. It was instituted by the respondents under the provisions of an act of the Legislature approved March 14, 1899 (Laws 1899, p. 261, c 131). A complaint was filed and summons served upon the appellants, who appeared in the action, and filed a general demurrer to the complaint. This demurrer was overruled, and thereupon appellants filed an answer. The cause was thereafter tried to the court and a jury, the latter being called to assess the damages. The court found, among other things, that respondents' lands are arid agricultural lands, and require irrigation; that said lands are irrigated by water obtained from what is known as 'Tenum ditch'; that said ditch does not touch any of respondents' lands, and in order to obtain water therefrom it is necessary to carry the same through the appellants' lands; that said water is obtained from a natural stream in Kittitas county. The court also found that appellants refused to grant to respondents a right of way for the purpose of said ditch. The jury found and assessed appellants' damages at $100. Upon this appeal it is urged that the act in question is void for the reasons: (1) That it is in contravention of section 19 of article 2 of the Constitution, which provides that no bill shall embrace more than one subject, and that shall be embraced in the title (2) that due process of law for the taking of such property is not provided by the act; and (3) that the act does not provide for the payment of damages aside from the value of the land taken.

1. The title of the act is as follows: 'An act providing for condemnation proceedings for right-of-way for irrigating ditches, canals, and flumes for agricultural and mining purposes and relating to right of appropriation of water.' It is claimed by appellants that this act embraces two distinct subjects, which are embraced in the title--one has relation to condemnation proceedings for right of way for ditches and canals, without regard to the source of supply or the manner of acquirement of the water to be used therein; the other is a declaration of rights of persons engaged in irrigation to appropriate water from the natural streams and lakes of the state. Upon an examination of the act, we find that sections 1 and 2 define what persons are entitled to take certain waters for the purposes of irrigation and mining. Section 3 provides that a person owning lands requiring irrigation, and not being a riparian proprietor, shall have a right of way for purposes of irrigation through lands intervening between his lands and certain waters. Section 4 defines such right of way. Section 5 provides that, upon the refusal of the owner of intervening lands to permit the passage of water over the same, the persons desiring such right of way shall proceed to condemn and take the right of way. The remainder of the act provides for the procedure. There can be no doubt that a subject embraced in the title of an act includes all subsidiary details which are means for carrying into effect the object and purpose of the act disclosed in that subject. Sutherland Stat. Constr. § 96, and cases cited; Cooley, Const. Lim. (7th Ed.) pp. 205-209. Under this rule, if the title of the act in question had been, 'An act relating to the right of appropriation of waters,'...