Wendler v. Woodward

• Decision Date: 26 December 1916
• Docket Number: 13392.
• Citation: 93 Wash. 684,161 P. 1043
• Parties: WENDLER v. WOODWARD et al.
• Court: Washington Supreme Court

161 P. 1043

93 Wash. 684

WENDLER v. WOODWARD et al.

No. 13392.

Supreme Court of Washington

December 26, 1916

Department 2. Appeal from Superior Court, Stevens County; W. H. Jackson Judge.

Suit by A. J. Wendler, as administrator, against Everett Woodward and others. From decree for plaintiff, defendants appeal. Modified and affirmed.

Hibschman Dill & White, of Spokane, and Albert Kulzer, of Chewalah, for appellants.

L. C Jesseph, of Colville, for respondent.

HOLCOMB J.

Issue was joined in this cause by admissions and denials by the answers of the several defendants to the amended complaint of respondent alleging sufficient facts and praying that he be decreed title, to the extent of 200 cubic inches of water per second of time, of the waters flowing in a nonnavigable stream called Cottonwood creek, by right of prior appropriation thereof, and the title and right to the ditch or waterway through which he had conveyed the water from the place of diversion upon the lands now owned and occupied by some of the defendants, and over, upon, and across the lands now owned by others of the defendants to the lands now owned by the estate and heirs of respondent's intestate, and for temporary and permanent injunctive relief. After a trial of the facts by the court, decree was entered in conformity with the prayer of the amended complaint.

1. The first question to be determined is raised by appellants' demurrer to the amended complaint, which was overruled: (1) That the plaintiff has no legal capacity to sue; (2) that there is a defect of parties plaintiff; (3) that the complaint is insufficient in facts. The first two grounds are urged relying upon the statute (Rem. & Bal. Code, §§ 1341-1366), vesting title to real estate and hereditaments in the heirs immediately upon the death of the ancestor.

While it is true that the heirs take title immediately, the administrator has the right of possession and the concomitant right to recover possession for the estate. Gibson v. Slater, 42 Wash. 347, 84 P. 648; Smith v. Stiles, 68 Wash. 345, 123 P. 448. This would include the right to any and all auxiliary and immediate and permanent equitable relief. The claim that in any event, the lands of the estate of Wendler being under a lease for years, the lessee only could enjoin interference with any of his demised possessory rights, is also untenable. Crook v. Hewitt, 4 Wash. 749, 31 P. 28, does not limit the right to such remedy to the lessee only, but holds that either the owner or the tenant could enjoin such interference. Jones, Landlord & Tenant, § 644; 24 Cyc. 930. The demurrer was properly overruled.

2. It is asserted upon the facts that no relief should be granted against appellants. In order to understand the matter a brief statement is necessary.

In 1886 or 1887 one Stephen H. Champ, having previously made settlement upon the northwest quarter of section 7, township 31 north, range 41 east, W. M., in Stevens county, commenced the construction of an irrigation ditch from Cottonwood creek. On June 1, 1887, he located 200 inches of water of Cottonwood creek by posting at the point of diversion his notice of appropriation, and on June 3, 1887, he recorded his appropriation notice in the office of the county auditor. The intake and place of diversion of the water was located on the south bank of the creek in the northwest quarter of the northwest quarter of section 8, township 31 north, range 41 east, W. M., in Stevens county, and was constructed thence in a westerly and southwesterly direction over and across a portion of the 40 in which the water was diverted, and across the northeast quarter of the northeast quarter and the northwest quarter of the northeast quarter of section 7, and thence to the northwest quarter of section 7, which had been settled upon and claimed by Champ. At the time of his appropriation and diversion of the water the northwest quarter of section 8, in which the appropriation was made, was vacant, open, unsettled, and apparently unappropriated government domain. These lands were within the land grant of the United States to the Northern Pacific Railroad Company, but the land in the odd-numbered section 7 settled on by Champ--the northwest quarter--passed to him from the government, and never passed to the Northern Pacific Railroad Company. The other lands in section 7 across which his irrigation ditch was built afterwards passed to the Northern Pacific Railroad Company. In 1899 Champ sold his land to another, and it was afterwards transferred to another, who in 1901 sold and transferred it to Gustav Wendler, respondent's intestate. In 1886 or 1887, the exact date being uncertain, the ditch had been constructed and water was flowing through it from the place of intake to the Champ land. In 1895 the ditch was still in use, and the water flowing in it was used by Champ for irrigation and household purposes and for watering stock. It was so used as long as Champ lived on the place, until 1899. From the time the Wendlers occupied the place in 1901 until the fall of 1913 they used the water flowing in the irrigation ditch for the same purposes as those above mentioned, except one year, 1911, when they, with the consent of the owners of the land where situated, turned the ditch further south for sawmill purposes. The ditch as constructed by Champ and as used by the subsequent purchasers of the land was 18 to 20 inches in width and probably 6 or 8 inches in depth, and the exact amount of water flowing through it was never measured during the time they used it. They used it to irrigate somewhere between 5 and 10 acres, though it was possible to irrigate about 20 acres more. During the 12 or 13 years that Champ occupied the land for which the water was appropriated no objection seems to have been made by any of the present defendants or their predecessors in interest to his use of the water flowing in the ditch and to his right to the waterway, and none seems to have been made as against Champ's successors to the same use and enjoyment, until about July, 1913, when appellants constructed a dam and irrigation ditch and prevented water from flowing down to the Wendler land.

Five propositions are advanced by appellants why no relief should be granted the respondent: (1) That Champ had no title to any right of way for a ditch by appropriation; (2) that the heirs of Wendler had no title to any ditch by adverse possession; (3) that the old ditch was abandoned; (4) that changes were made without permission; (5) that no rights had been proved in the water and there can be none in the ditch.

The third and fourth propositions are easily disposed of, being simply questions of fact upon which there was some conflict of evidence; the court finding in favor of respondent upon competent evidence. Whether the old ditch was abandoned is purely a question of fact...