The Martha Lake Water Company, a corporation, applied to the state supervisor of hydraulics for permissiоn to appropriate a certain quantity of the water of Martha lake for the purpose of irrigation and domеstic use upon non-riparian land. The supervisor of hydraulics granted the permit to take the quantity of water applied for from the lake, for a period of three years. A number of persons owning property bordering on the lake, with riparian rights, аppealed to the superior court, where a trial was had before the court without a jury. The court made findings of fact and conclusions of law, and entered a judgment enjoining and prohibiting the water company from lowering the water in Martha lаke until it should acquire the right so to do by eminent domain. The appeal is from this judgment.
Martha Lake Water Company is the apрellant. A number of persons owning property riparian to the lake are the respondents.
Martha lake is a small, narrоw body of water, covering an area of approximately fifty-nine acres, and is non-navigable. Its average depth is аbout twenty feet. It is located approximately twelve miles from the city of Everett, and about twenty miles from Seattle. Some years ago, the then owner or owners of the property to the north, west and south of the lake, platted the same into small tracts, much of which has been sold to individual owners. The tracts riparian to the lake were sold for one thousand dollars per acre, the non-riparian land for three hundred dollars per acre. The riparian owners purchased their рroperty because of its access to the water for bathing, boating, swimming, fishing and for summer homes. A number of summer homes and summer resorts have been constructed by riparian owners. The riparian land is chiefly valuable for'the purposes mentioned. It is not vаluable for.agricultural *55 purposes. If the permit granted the appellant by the supervisor of hydraulics were sustained, it would lоwer the water in the lake approximately twelve inches below mean low water mark during the dry season. The effect of this lowering would be that the water’s edge would recede from eight to fifty feet. This would be a material and substantial damage to thе riparian owners.
The question is whether the appellant has the right to appropriate the waters of the lake to be used upon non-riparian land, when, by so doing, it would cause the water of the lake to recede and materially damаge the riparian property owners, without first having acquired the right so to do by an eminent domain proceeding.
In
Brown v. Chase,
The case of
Proctor v. Sim,
The cases of
State v. American Fruit Growers,
*56 The constitution of this state (§16 of art. I) provides that:
“No private property shall be taken or damaged for public or private use without just compensation having been first madе, or paid into court for the owner, . . ."
In the present case, the lowering of the waters of Martha lake would materially аnd substantially damage the riparian owners. The water’s edge would recede, and land which was covered with water at the time of their purchase would become dry land. Under the constitutional provision cited, before their land can be thus damaged they are entitled to compensation.
In
Madson v. Spokane Valley Land etc. Co.,
“These rights are presumed to be valuable rights. They may have been the principal сonsiderations for the purchase of the land from the government. These rights can only be taken away when necessary for a public use, upon due consideration.”
It is true that the lake involved in that case was navigable, but, owing to the peculiar facts there present, the same rule was applied as to a non-navigable lake.
In
Longmire v. Yakima Highlands Irr. & L. Co.,
“No аuthority has been cited, and we think none can be found, which would sustain a proposition that an upper riparian owner could divert or arrest the flow of waters in a stream for use upon non-riparian land, to the substantial injury of a lower riparian owner, without making compensation.”
The two cases last cited were not overruled or modified by either Brown v. Chase or Proctor v. Sim, supra. In fact, in Brown v. Chase, the right of a riparian owner to complain is distinctly recognized where such owner will be substantially damaged by the diverting of water for use upon non-riрarian land. The question in Brown v. Chase and Proctor v. Sim only went to the ownership of the water. The question in the present case is different and involves, not the ownership of the water in Martha lake, but the right of a riparian proprietor to complain when the waters of that lake are sought to be lowered to his substantial and material damage." The appellant has no right to thus damage the riparian proprietors upon the lake without first having acquired the right so to do by eminent domain.
The judgment wall be affirmed.
Mitchell, C. J., Parker, Millard, and Beals, JJ., concur.