26 Wash. 439 | Wash. | 1901
The opinion of the court was delivered by
In its principal aspects, this is a suit-brought by the plaintiff to quiet the title to water appropriated by him for the irrigation of farm lands situated on the Wenas river, in Yakima county. With few exceptions, the defendants are riparian owners situated upon the river above the lands of plaintiff. The Wenas river, upon which nearly all the lands border, has its source in the Cascade mountains, and flows through the Wenas valley, which is from one to- two and one-half miles wide, and about twenty miles long. The side lines of the valley from the source of the stream to its mouth are defined by ranges of hills of an altitude of several hundred feet. The valley slopes from each side of the stream, flowing through its center, and the water has considerable grade the entire way. The volume of water flowing in the stream varies from an ample supply in the spring and until about the middle of July of ordinary years, when it begins to sub
1. Referring to the Oleman tract, the court, in substance, found: That Ciernan settled thereon in the spring of 1865, being at the time a citizen of the United States, and qualified to acquire title under the general land laws, and that he went into the possession thereof with the intention of acquiring title, and continued in possession thereafter until the 10th of March, 1871, when he sold and delivered all of his interests, improvements, and possessory rights in the premises to the plaintiff, in consideration of the sum of $400. At the time Ciernan had a dwelling thereon, the premises were fenced, and there were other improvements. Eighty acres of the tract were subirrigated by the waters of the Wenas, and he raised grain and hay from such tract by subirrigation. That upon the purchase of the tract, in March, 1871, by plaintiff, he immediately entered into possession, and established his residence thereon. That he was qualified to acquire the tract under the land laws of the United States, and subsequently acquired title thereto. That in April, 1871, for the purpose of irrigating such lands he constructed a ditch from the Wenas river of sufficient capacity to irrigate seventy-five acres of said tract. That in May of the same year he constructed another ditch sufficient to irrigate a large portion of such premises. That
2. The superior court did not find the quantity of water flowing in the Wenas river at any time. It decreed that after the 20th day of June in each year the plaintiff was entitled to have the exclusive use of the waters of the stream for the succeeding three and one-half days; that the defendants should then have the use of the water for the three and one-half days succeeding; that thereafter plaintiff should have the exclusive use of the water for the four succeeding days; that the defendants should then have the use of the water for the three succeeding days, and jfiaintiff should have the- exclusive use of the water for five days then succeeding; and the defendants should have the exclusive use of the water the succeeding two days; and thus to alternate in the use of said water between plaintiff and defendants from said time during the dry season of each year; and that the riparian owners mentioned in the findings of fact were entitled to use the waters of the stream at all times for stock and domestic purposes; that each of the parties to the suit should pay his own costs; and that plaintiff was not entitled to damages. Plaintiff excepts to the decree.
3. If the claim of prior appropriations and beneficial use of sufficient water from the Wenas river for the purpose of irrigating the respective parcels of land owned by him be established, then the plaintiff’s right to the use of tlie water is superior to all other claims, whether founded upon appropriation or riparian ownership. The lands in the Wenas valley are generally arid, and require artificial irrigation to successfully produce ordinary agricultural
“That any person . . . who may have or hold a title or possessory right or title to any agricultural lands within the limits of Yakima county, Washington Territory, shall be entitled to the use and enjoyment of the waters of the streams or creeks in said county for the purposes of irrigation and making said land available for agricultural purposes to the full extent- -of the soil thereof.”
Section 4 declares:
“That in all controversies respecting the right to water under the provisions of this act, the same shall be determined by the date of the appropriation as respectively made by the parties.”
And section 11 further repeats:
*448 “That in all controversies respecting the right to water in the county of Yakima whether for mining, manufacturing, agriculture or other useful purposes, the rights of the parties shall be determined by the dates of appropriation respectively.”
4. Thus it will be seen that the measure of the appropriation, as defined in § 1 of the act of TTovember 13, supra, is the making of “said land available for agricultural purposes to the full extent of the soil thereof.” At the time the early appropriations were made from the Wenas river there was no procedure prescribed by legislation for notice of the appropriation as now exists, but absence of such prescription did not make actual notice of the intention to appropriate unavailable. Certainly, when the possessory right to- a definite tract of agricultural land was acquired by the settler, and made known by his residence and cultivation thereon, and by the use of water from the stream, the intention to appropriate and continue to use the water should be inferred; and the continuous use of the water for irrigation thereafter, and the extension of the area of cultivation with reasonable diligence, must confirm the appropriation from the beginning of the diversion; and the quantity of the water appropriated may also reasonably be inferred from the quantity of the land occupied, with its boundaries thus defined and claimed. It was said of a similar appropriation in Offield v. Ish, 21 Wash. 277 (57 Pac. 809) :
“He continued from year to' year to improve the premises, put out more fruit trees and cultivated more of the land, as is usually done by farmers in improving new land. Appropriation of water consists in the intention, accompanied by reasonable diligence, to use the water for the purpose originally contemplated at the time of its diversion.”
As already observed, it has been concluded that the appropriations were in fact made, and the rights to the appropriations became vested. The superior court, however, found that it could not determine from the evidence the quantity of water required for the irrigation of the plaintiff’s parcels of land. The evidence- upon this issue is not sufficiently clear for this court to set aside this finding. An examination discloses that a number of witnesses, when testifying, and while expressing opinions as to the number of inches of water required to irrigate the land, had not very definite ideas of the measurement of water; and the court was justified in attaching but little weight to such testimony. It is also observed that the terms “inches” and “miners’ inches” were used very in
The judgment of the superior court is reversed, and the cause and the record therein remanded to that court, with instructions to hear and consider only such further evidence as may be produced before it upon the quantity of water required to irrigate the three several parcels of land owned by plaintiff, and the water required for the irrigation of the premises, hereinbefore described, of the defendant Quinn, and that such quantity of water so required be found by the court, and thereafter that the court enter judgment determining the priorities of the appropriations of plaintiff as hereinbefore found by this court, and adjudge the quantity thereof found to be necessary to irrigate said lands for ordinary agricultural purposes, and that all the defendants in said cause be perpetually enjoined from in any wise interfering with or disturbing the priorities so established under the judgment, and that plaintiff have water at all times for stock and domestic uses. ISTeither plaintiff nor defendants will be allowed costs in the production of further evidence to determine the quantity of water appropriated.