70 Wash. 422 | Wash. | 1912
This action was brought to enj oin the defendants from interfering with the plaintiffs’ use of water, from what is called in the record “Dry Creek,” in Kittitas county. The defendant Britta Roseberg answered, claiming ownership of the water under an alleged prior appropriation by one Preston, her predecessor in interest. The other defendants disclaimed any interest in the water. The plaintiffs Frankland and wife were tenants of the plaintiffs Allen. A trial was had, and the court entered a decree in favor of the defendant, Britta Roseberg, and dismissing the action. The plaintiffs Allen and wife have appealed.
The material facts developed by the evidence are as follows: In May, 1880, one Preston settled upon unsurveyed land which, when afterwards surveyed, constituted the north
In 1885 Preston sold his land to one Oliver. In March, 1885, one Taylor filed a preemption claim upon the southeast quarter of section 34, township 20, north, range 15, E., W. M., and obtained a patent therefor in 1891. He resided on this land continuously from March or April, 1885, till March, 1910, about six months after he had sold it to the appellant Allen in the fall of 1909. Taylor, in April, 1885, appropriated the water of the north branch of the stream, and
“This contract of agreement, made this 29th day of May, 1891, by and between John Roseberg, party of the first part, and Edward J. Taylor, party of the second part, both of Cle Elum, Kittitas Co., State of Washington.
“In section 8, township 19, range 15, east, county of Kittitas, state of Washington, on the stream known as Dry creek, we agree to put in a new head gate in the same place as the old one is now, and to divide the water in the same place, and each party to receive one-half of the water of said Dry creek.
“Description of head gate: A box shall be placed on a level which shall be 12 feet long, 2 feet wide, and one foot*425 deep, the water is to be divided with a V 6 inches wide, 4 ft. in length, and one foot in height, said V to be placed 8 ft. from the west end of said box. And we do both agree that a ditch shall be dug as follows: Beginning 10 ft. west from the west end of said box, and said ditch to run due south for a distance of about 50 rods, or to the high ground across the swamp, and said ditch shall be 20 inches wide in the bottom, and 30 inches wide on top, and 18 inches deep.
“And the party of the first part and the party of the second part do further agree that each party shall pay one-half of the expense in digging said ditch. And the parties herein mentioned do agree that said ditch shall be complete on or before the first day of May, 1892. And the party of the second part shall dig his ditch in a northerly direction to his place, and said ditch shall be dug as near straight from the head gate as practicable.
“And we further agree that all expense in the keeping in repair of said box at head gate, and on the ditch running south, and also on cleaning out of old channel shall be paid jointly. (Duly witnessed.) John Roseberg,
“Edward J. Taylor.”
John Roseberg never completed his purchase from Oliver, but made a contract to purchase some of the railroad land in the northeast quarter of section 3. He died and his widow, the respondent, made a new contract to purchase the same land, and in February, 1903, the railroad company conveyed the land to her. She has resided there ever since. The evidence shows that she knew of Taylor’s use of the water ever since the making of the agreement with her husband, and that the measuring box at the point of division has been renewed, her son helping Taylor in that work. Taylor used his one-half of the water under the agreement continuously, in irrigating his land each season from May, 1891, till 1910, with her knowledge and acquiescence. Respondent also now owns some of the land in section 2 formerly owned by Preston, and has used half of the water in irrigating this and her land in section 3. When the appellants Allen took possession of the Taylor land, the respondent again made a claim to all of the
We are of the opinion that, under the evidence, the appellants are entitled to one-half of the water of the stream in question, by reason of the agreement between their grantor and John Roseberg, and his continuous use of the water as appurtenant to their land for a period of nineteen years. It can hardly be questioned that Taylor began using water from this stream in 1885 without any objection from Preston, the only person then adversely interested, and that he continued this use for four years without his right being questioned. When the dispute arose between him and Roseberg, he was claiming, not a mere license, but an absolute right to use the water. The agreement of May 29, 1891, between them shows upon its face that it was intended as a final settlement of this dispute. The respondent did not sign the agreement, but the evidence is conclusive that she must have known of it, and it is undisputed that she acquiesced in its observance from its date until 1910. Whatever might have been the relative rights of the parties prior to this agreement, it certainly formed a sufficient basis for an adverse possession and use by Taylor of half the water after that time. That his use thereafter was adverse, under a claim of right, and not merely permissive, is beyond question. Assuming that Preston had made a prior appropriation of all of the water, Taylor’s right to half of it had ripened into a complete title when the appellants purchased from him. Title to water can be obtained by adverse possession for the statutory period, even as against a prior appropriation. 3 Farnham, Waters and Water Rights, § 680; Farwell v. Brisson, 66 Wash. 305, 119 Pac. 814; Oregon Construction Co. v. Allen Ditch Co., 41 Ore. 209, 69 Pac. 455, 93 Am. St. 701, and notes.
The respondent contends that there can be no adverse use by a lower proprietor as against those above, since the use below is no interference with, and hence no possible invasion
The judgment is reversed, with direction that the injunction issue accordingly.
Mount, C. J., Fullerton, Morris, and Gose, JJ., concur.