White v. Stout

• Decision Date: 08 February 1913
• Citation: 129 P. 917,72 Wash. 62
• Court: Washington Supreme Court
• Parties: WHITE v. STOUT et ux.

129 P. 917

72 Wash. 62

WHITE v. STOUT et ux.

Supreme Court of Washington

February 8, 1913

Department 1. Appeal from Superior Court, Okanogan County; C. H. Neal Judge.

Action by Joseph S. White against Don A. Stout and wife, who answered, asking affirmative relief. From a decree on the merits plaintiff appeals, and from an order refusing to retax costs defendants appeal. Defendants' appeal dismissed and decree affirmed.

Smith &amp Gresham, of Conconully, for appellant.

William C. Brown, of Okanogan City, for respondents.

MOUNT J.

The plaintiff brought this action to quiet title and to restrain the defendants from trespassing upon certain lands owned by the plaintiff, and for damages because of alleged trespass. The defendants in answer to the complaint admitted ownership of the lands by the plaintiff, but denied all the other allegations relating to trespass and damage. Then, by way of affirmative defense, alleged ownership of certain lands adjoining the plaintiff's; that these lands were irrigable lands situated on and riparian to Chiliwist creek which flows across the same; that plaintiff's lands were above the defendants' lands, and that, in order to secure water from said creek, it was necessary to carry the same across defendants' lands; that, while the title to the lands now owned by both plaintiff and defendants was in the United States, the plaintiff, in the year 1900, permitted the defendants to construct a ditch across his land and carry water therein to the defendants' lands; that plaintiff stood by and permitted defendants to spend a large amount of money constructing said ditch; that defendants have ever since used this ditch upon plaintiff's lands (this ditch is known in the record as 'ditch line B'); that in the year 1905, in consideration of certain improvements made by defendants upon plaintiff's lands, plaintiff permitted the defendants to construct another ditch across plaintiff's lands. This ditch is known as 'ditch line A.' For a second affirmative defense and by way of cross-complaint, the defendants alleged necessity for the ditches for irrigation and for rights of way across plaintiff's lands, and asked the court to determine what damages the plaintiff should recover therefor. The third affirmative defense was a claim of adverse user of said lands. The prayer of the answer was as follows: '(1) That the plaintiff take nothing by this action. (2) That in case the court determines that the defendants have not a perfected right of way and easement for said ditches, or either of them, that the court then ascertain the amount of plaintiff's damages as and for a right of way for said ditches or either of them and decree upon to payment of said damages that defendants be and are the owners of said ditches and rights of way therefor, as the same are now laid out, or in case the court determines that the defendants are the owners of said ditches and rights of way therefor, but that the plaintiff is entitled to pay for the land used and occupied by the same, that the court proceed to ascertain the amount of such damages and give judgment for the same. (3) That plaintiff be temporarily enjoined from interfering with said ditches and with defendants' use and enjoyment thereof until the final determination of this action. (4) That, upon the final determination of this action, the plaintiff be perpetually enjoined from interfering with said ditches and defendants' use and enjoyment thereof.'

The reply was, in substance, a general denial of the affirmative defenses. Upon the trial of the case without a jury, the court concluded that the prior use of plaintiff's land by defendants was a permissive use or license which could be revoked at any time, and which license had been revoked; but found the value of the land necessary to be taken for each ditch, and the damage to the remainder by reason of the taking. The decree provided for different amounts depending upon the defendants constructing an open ditch or an underground pipe line. The decree recited: '* * * And it is further ordered and adjudged that unless defendants choose to so elect within 30 days after the date of the rendition of this decree, and pay into this court for the plaintiff the sum or sums of money hereby awarded plaintiff as damages that the defendants be enjoined from the use of said ditch lines, but upon an election being made under the terms of this decree by the defendants, and the money awarded as damages being paid into court for the plaintiff, then the plaintiff shall be perpetually enjoined from interfering with the defendants in maintaining, using, and operating said ditches or either of them, and upon the acceptance of such damages by plaintiff for either or both of said ditch lines, then a supplemental decree shall be rendered and entered decreeing and...