White Bros. & Crum Co. v. Watson

• Decision Date: 25 August 1911
• Court: Washington Supreme Court
• Parties: WHITE BROS. & CRUM CO., Limited, v. WATSON et al.

117 P. 497

64 Wash. 666

WHITE BROS. & CRUM CO., Limited, v. WATSON et al.

Supreme Court of Washington

August 25, 1911

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

Action by the White Bros. & Crum Company, Limited, against Jacob H Watson and another. Judgment for defendants, and plaintiff appeals. Affirmed.

E. V Kuykendall and C. C. Gose, for appellant.

Hanna & Hanna, for respondents.

ELLIS J.

Appeal from a judgment sustaining a general demurrer to appellant's amended complaint, which is long, but which, so far as essential to our consideration, may be epitomized as follows: Yakiwawai creek, a stream not navigable, has its source in Whitman county, Wash., about two miles above the land of respondents described in the complaint, and thence flows to and across that land and the lands of the appellant also described in the complaint. The respondents acquired their land by filing thereon as a government homestead on April 16, 1902. In 1881 the appellant's predecessors in interest appropriated all the waters of the creek, and carried the same by a ditch and flume from the point of diversion to the lands now owned by the appellant, and ever since the water has been applied to a beneficial use by the appellant upon its land, which without irrigation is arid and unproductive, but with irrigation is highly productive. At the time of the appropriation of the water, respondents' land and all the lands riparian to the creek above the appellant's lands were public lands of the United States. All of the land above the appellant's land drained by the creek is steep and precipitous, is used only for pasturage, and the rainfall and melting snows are not retained thereon, but readily flow into and cause frequent floods of the creek. The stream, until it reaches the appellant's land, flows through a narrow canyon with steep bluffs on either side, and has a fall of approximately 2,000 feet from its source to appellant's land. In the spring of 1907 the flood waters of the creek destroyed appellant's flume and head ditch, and washed away the banks at the point of diversion, making it impossible to divert the water by means of the ditch and flume previously used. The bed of the stream was eroded, causing the water to flow over a sandy and gravelly bottom, so that since the flood much of the water is lost at the original point of diversion. The right of way by which the water has been carried is along a steep bluff, and respondents' lands traversed by it are unfit for cultivation. The right of way is gravelly, and, if appellant is required to convey the water by a ditch, a great part of it will be lost by percolation and evaporation, causing a material injury to the appellant and being of no benefit to respondents. About 76 feet above the point of diversion the stream flows over a natural bed rock, and it is necessary in order to secure and retain full use of the water to change the point of diversion to that point, there construct a cement dam, and thence lay a pipe line along the right of way across respondents' land to that of appellant. Unless this is permitted, the appellant will in the future be wholly deprived of the use of the water. Prior to commencing this action, appellant went upon the respondents' land to construct the proposed dam and pipe line, when respondents, by force and threats of violence, prevented and still prevent the work. The prayer is for an injunction against interference, for damages, that title to the water, right of way, pipe line, and headworks be quieted in appellant, and for general relief.

It will be noted that there is no direct allegation that the point of diversion, either as originally located or as now proposed, is upon the respondents' land. This is urged as one reason that the demurrer was properly sustained. The inference, however, from a reading of the whole amended complaint is that both of these points and the site of the proposed dam are upon respondents' land. In the absence of a motion to make the amended complaint more specific in these particulars, the demurrer should not have been sustained on this ground.

Assuming these points to be alleged as implied, does the amended complaint state a cause of action? The demurrer concedes that the appellant's predecessors in interest had appropriated the water at the original point of diversion, and were conducting it by ditch and flume over the original right of way prior to the inception of respondents' title and while the fee of respondents' land was still in the United States. Section 2339 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1437) provides for the recognition by the courts of vested and accrued water rights, and section 2340 (page 1437) is as follows: 'All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.' Respondents therefore, took their land subject to the easement for the diversion of the water at a then fixed point, and for the conveyance of the water by ditch and flume on a then existing right of way across their land to that of the appellants. The grant from the government to the respondents was that of a servient tenement, subject to a definite easement. There can be no difference between the easement so acquired and an easement created by grant of a private owner who afterwards conveys the servient tenement. In either case the owner of the dominant tenement has an easement which he cannot change without the consent of the grantee of the servient tenement. The grant from the government to the respondents was subject to 'vested and accrued water rights or rights to ditches and reservoirs used in connection with such water rights as may have been acquired,'...