Wilkins Ditch Co. v. Drake

• Citation: 115 Wash. 603,197 P. 769
• Decision Date: 16 May 1921
• Docket Number: 16107.
• Court: United States State Supreme Court of Washington
• Parties: WILKINS DITCH CO. v. DRAKE et al.

197 P. 769

115 Wash. 603

WILKINS DITCH CO. v. DRAKE et al.

No. 16107.

Supreme Court of Washington

May 16, 1921

Department 1.

Appeal from Superior Court, Kittitas County; John Truax, Judge.

Suit to quiet title by the Wilkins Ditch Company against F. C. Drake and others. From a judgment dismissing the complaint plaintiff appeals. Affirmed.

C. R Hovey, of Ellensburg, and Carroll B. Graves, of Seattle, for appellant.

E. E Wager, Pruyn & Hoeffler, and Kern & Henton, all of Ellensburg, for respondents.

BRIDGES J.

The plaintiff brought this action for the purpose of quieting title in itself to a certain irrigation canal commonly known as the Wilkins ditch, and to enjoin the defendants from using the ditch or taking waters therefrom for irrigation or other purposes. The defendants not only denied the material allegations of the complaint, but affirmatively set up that they had rights in the ditch and in the waters flowing therein senior and superior to those of the plaintiff. After all the testimony was in and the court had considered the matter, it made an order dismissing the plaintiff's action, but did not undertake to adjudicate any of the claimed rights of the defendants. From this judgment the plaintiff has appealed. Although there is some sharp conflict as to what the actual facts are, a careful reading of the evidence convinces us they are, in substance, as follows: In 1885 or 1886 the Teanaway Ditch Company was incorporated under the laws of the state of Washington. Most, if not all of its incorporators and stockholders were the owners of lands which needed irrigation. The original project of this company was to construct a ditch from the Teanaway river southerly through a portion of the Kittitas valley to their lands, thus irrigating them with the waters of that river. This project was soon abandoned, however, and a ditch was constructed which connected with what is called the high-water channel of the Nanum creek or river. The company, in constructing this ditch, used, in part at least, the high-water channel of the Nanum and various depressions in the ground. By 1886 or 1887 water was turned into the ditch, and thereafter the corporation was permitted to become wholly inactive. It did not hold any meetings of stockholders or directors; it did not do any work toward the maintenance or operation of the canal or ditch; it did not pay any license fees to the state, or otherwise maintain its existence. A good many years ago, the exact time not being shown in the testimony, the secretary of state struck its name from his records because of its failure to pay its annual license fee. Its various stockholders, who were the owners of land needing irrigation, gave some attention to the ditch and its operation subsequent to the so-called death of the corporation, and at all times have used the ditch for the purpose of carrying waters to irrigate their lands.

Most, if not all, the defendants or their predecessors in interest, owned lands for the most part nearer the Nanum than the lands owned by the individual stockholders of the Teanaway Company, and before the ditch was constructed the respondents, or their predecessors in interest, irrigated their lands from the Nanum, apparently by bringing a part of its waters into the high-water channel of that creek and tapping that channel at various places. During the early irrigation season there was plenty of water in this channel, and the then owners of the lands now owned by the respondents made no objection to the Wilkins ditch connecting with that channel. The capital stock of the Teanaway Company was $50,000, divided into 1,000 shares of $50 each. Only about 400 of these shares, however, were ever sold.

Matters ran along in this way until March, 1918, when several, but not all, of the old stockholders of the Teanaway Company organized...