70 Wash. 242 | Wash. | 1912
Plaintiffs brought this action to restrain Douglas county from interrupting the flow of certain springs located in a highway which traverses their lands, and to quiet
It is first contended that, inasmuch as the county did not demur or raise the issue by way of answer, it has waived a demand. The court, in ruling against the sufficiency of the complaint, based its judgment entirely upon Hoexter v. Judson, 21 Wash. 646, 59 Pac. 498, and Rose v. Pierce County, 25 Wash. 119, 64 Pac. 913. In justice to the trial judge, we feel bound to say that the language of the court in those cases is broad enough to sustain his ruling. But a reexamination of them convinces us that the facts on which the rulings of the court were based would not sustain a holding that a claim or demand of a purely equitable nature and upon which a prayer for a restraining order is based requires presentation under our statute.
There has been great controversy and a resultant division
*245 “Such charter or statutory provisions, so far as the requirement of a notice or presentment as a condition precedent is concerned, are in derogation of common right, and should be strictly construed, and cannot be extended by implication beyond their own terms ... It has been held that the requirement of a prescribed notice or presentation does not apply where the injury is caused by a nuisance; nor to a suit in equity for relief from continued wrongful acts in the nature of a trespass, although there is also involved a demand for damages in the past; . . .” 28 Cyc. 1450.
In Sammons v. Gloversville, 175 N. Y. 346, 67 N. E. 622, it was held that a statute similar to our own had no application to a suit on the equity side of the court. In that case the gravamen of the action was a continued trespass. Upon the authority of that decision it was held, in Gerow v. Liberty, 106 App. Div. 357, 94 N. Y. Supp. 949, that the statute had no application where the action was brought to restrain a nuisance. In that case the demand was for an order restraining the flow of waste sewage, and incidental damage. See, also, Bowie County v. Powell (Tex. Civ. App.), 66 S. W. 237. We, therefore, hold that the complaint was sufficient.
The merits are argued in the briefs, and inasmuch as the case is to go back for retrial, we shall pass upon the law of the case. Originally, that is before the land owned by appellant became the subject of private ownership, the waters of the springs now in controversy were open to appropriation. They were not incident to the political subdivision of land upon which they were situate, and they might have been lawfully appropriated by a settler upon other land, and conveyed by him and appropriated to his own use. This being the legal status of the waters in controversy, we think they might well become the subject of prescriptive right, the real question in' the case being whether such right can be acquired by the public. The case is difficult. But, reasoning from the fundamental principles applicable to the rights of the general public, it can be settled. In the case of Smith
In the last case cited, the well was situate on the defendant’s land, at a short distance from the public road. There had been a village about the well, and its waters had been freely used by its inhabitants. Defendant partly inclosed the ground upon which the well was situate, leaving an open passage from the public road down to the well. Finally, he built a .wall, which completely inclosed the well, so as to shut out the public from access thereto. Upon demand, he refused to restore the well to its former condition. His principal defense was that “the well and the land upon which the same is situate is exclusive property, and that no public right of access to the well or right of public user of the water had existed.” In its opinion the court found it unnecessary to consider whether the soil and freehold of the well passed to the plaintiff, for it said that, in either case, the right, whatever it was, was in the public, and that it had been wrongfully interrupted in that right by the defendant.
Recurring now to the case of Smith v. Archibald, supra, the prescriptive right of the public to patronize public wells is recognized and clearly discussed by Lord Blackburn. He states that the right contended for by the public authorities could have been, admittedly, acquired by an individual, and
The right of the public in wells and watering places located upon common ground is as ancient as the race. Before tenure in land was recognized, camps were set up near watering places by the roving races out of which the Patriarchs sprung. Many of the sweetest romances of the Bible have their setting about the wells and watering places of that day. They were, as they are now, in many of the older villages of Europe, like the well of Nahor, “at the time of the evening — the time when women go out to draw water — ” a place for congregation, visitation and gossip. This common use of water has furnished the principle underlying a form of the police power of this day, and under which the governing bodies of cities and towns establish water systems for the use of the public. Having title, therefore, the right to maintain a common watering place should not be denied in this day, for the necessities of man have not changed.
Appellants submit a number of cases affirming the proposition that the right of the public in> a road is no more than an easement for highway purposes, and that no interest in the freehold attaches, except such as is or may be necessary to the enj oyment of the easement. They say:
*248 “The title of the former owner is not extinguished; but is so qualified that it can only be enjoyed subject to that easement. The former proprietor still retains his exclusive right in all mines, quarries, springs of water, timber, and earth, and for every purpose not incompatible with the public right of way.” Jackson v. Hathaway, 15 Johns. 447, 8 Am. Dec. 263.
We shall refer to but two of the cases cited in support of appellants’ contention; for, unless critically examined, these might be taken as contrary authority. In Wright v. Austin, 143 Cal. 236, 76 Pac. 1023, 101 Am. St. 97, 65 L. R. A. 949, the general principle just quoted was reaffirmed, and it was held that the board of supervisors of Sonoma county could not bore a well in a highway for the purpose of collecting a percolating or subterranean flow for the purpose of sprinkling the public road. The court said:
“In our opinion the subterranean water underlying a highway cannot reasonably be said to be one of ethe incidents necessary to enjoying and maintaining the same,’ any more than can the waters of a spring be said to be incident to the easement.”
This decision was made to rest partly upon the case of Town of Suffield v. Hathaway, 44 Conn. 521, 26 Am. Rep. 483. The Suffield case is the main reliance of appellants on this appeal. It is said in the brief quoting from the Wright and Suffield cases:
“As against the owner of land abutting on a public highway, the selectmen of the town have a right to drain a spring on the highway on such owner’s side, in such manner as to render the highway safe from its overflow; but they have no right to divert the water from the spring to a public watering-trough on the other side of the highway. . . . The court having found that the works removed by the respondent were useful only for the purpose of collecting the water from the spring and diverting it from there for the supply of a public watering-trough, this ceases to be a question as to when, if ever, a court will interfere with selectmen in the exercise of their discretion in repairing ways. They had*249 ceased to act for that purpose; had ceased to provide for public safety; had become ministers to the public comfort. In this last capacity, as against this respondent, they had no power to act at all; therefore we think there is no place for a discussion as to their mode of action.”
But these cases, though rightly decided upon the facts, nowhere touch the point involved in the instant case. If in either of these cases the abutting owner had acquiesced in a public use of the waters for a time equal to the period of limitation, a prescriptive right might have arisen. Mr. Elliott, in his work on Roads and Streets (3d ed.), § 499, finds the rule to be that the public has only an easement to pass over the highway. The title to all springs and waters thereon remains in the owner of the fee. He also finds that the abutting owner has a right to restrain the use of the highway for purposes inconsistent with the easement. In speaking of the right to divert the flow of water in a highway, he says the rights of the owner in the fee are not to be unnecessarily interfered with:
“It is to be kept in mind that, unless there is an appropriation by due process of law, the local authorities have no right to use the waters even for a public purpose. As highway oiflcers their right is to so dispose of it as to promote public convenience in the use of the highway.” Elliott, Roads and Streets (3d ed.), § 558, note.
It would seem that, if there be a right of appropriation by due process of law, there would also be a right of prescription ; and indeed, it is recognized in the case of Terre Haute & I. R. Co. v. Zehner, 166 Ind. 149, 76 N. E. 169, 3 L. R. A. (N. S.) 277. The suggestion of the Connecticut court that the powers of the highway commissioners do not extend so far as to allow them to take means to minister to the public comfort, is altogether too broad. We have no doubt of the right of the public to make its highways comfortable as well as safe. If it were not so, improved highways in the modern sense of the term would be impossible. The right to park streets, plant shade trees, and maintain drinking fountains
The sufficiency of the answer is questioned. We believe that it is sufficient to raise the issue we have discussed in this opinion. We therefore reverse the judgment of the lower court, and remand the case with instructions to proceed to trial.
Fullerton, Parker, Crow, and Gose, JJ., concur.