96 Wash. 95 | Wash. | 1917
On Rehearing.
— This cause is before us on the grant of a rehearing upon the departmental decision reported in 91 Wash. 179, 157 Pac. 460, wherein the decree of the superior court quieting title in respondents to a certain ditch and water right on appellants’ land was reversed. The evidence as given by the parties to the action was flatly contradictory and far from satisfactory and convincing on any theory; but as the effect of our former decision w;as to deprive the respondents of the use of water which they had enjoyed for over twenty years, the cause was assigned for a second argument before the court sitting En Banc.
A brief summary of the facts in the case is here given in order to make clear the situation of the parties. In the year 1889, Lester Popple, the father of the appellants Mrs. Ingle
In the latter part of 1892, respondent B. J. Lyons entered into an agreement with Popple whereby the former was allowed to tap the pond on Popple’s farm and lead water therefrom by a ditch to a seven-acre orchard tract belonging to Popple, and from there on down to respondents’ land, where the water could be used for irrigating some thirty acres. It does not appear whether this was originally a mere permissive use of a ditch and water right or the grant of an easement. This ditch was constructed by Lyons and used by him and Popple jointly for about eleven years. In the year 1904, it was necessary to shift a part of the ditch farther north by reason of the location of a public road through Popple’s land, which location partially covered the existing ditch. The necessary work of reconstructing the ditch was done by Popple. The joint user of the ditch by Lyons and Popple continued thereafter without any friction until the latter’s death in July, 1913. For a period of twenty years Lyons had looked after the cleaning and repair of this ditch, employing thereon annually the labor of two men, usually from two to five days. He had also on occasions cleaned the ditch constructed by Popple which tapped the waters of Crab creek. The waters of this creek at the place of intake were two and one-half feet in depth. The ditch built by Lyons and afterwards partially relocated by Popple was some thirty inches in width, with a
The evidence introduced at the trial to establish the rights of the parties, we may repeat, is most unsatisfactory, although it is possible that nothing more definite can be produced. A more careful perusal of it has convinced us, however, that we were in error in our former opinion in holding that the respondents’ right to the use of water from the ditch was merely permissive. We think the evidence justifies the conclusion that Popple, not only by his acts but by his declarations, recognized a right in the respondents to some proportion of the water, and that this, together with the long continued use of the water by the respondents, justified the trial court in finding that they were entitled as of right to a proportion thereof.
But we think the court was in error in dividing the water on the basis of 7-S7 to the appellants and 30-37 to the respondents. There is evidence that Popple at times irrigated a larger tract of land than the seven-acre tract, not only
For want of a more definite basis for a division, therefore, we believe it would be more in consonance with the rights of parties and with the equities of the case to divide the water equally between them, than to award the whole to one of the parties, or to divide it on the basis of division employed by the trial court.
Our former order will be modified, and the cause remanded to the trial court with instruction to award to each of the parties an equal division of the water, with such right to maintain the ditches as may be necessary to insure the permanence of the water supply.
All Concur.