33 Wash. 132 | Wash. | 1903
For a statement of this case, reference is made to the opinion of this court on a prior appeal, re
In answer to appellants’ contention that the court had no authority, under the pleadings, to establish priorities or to grant injunctive relief, we refer to the opinion above cited, where this court said:
“The theory of the complaint is to quiet the title of contending claimants for the use of the waters of Stemilt Creek. It is also the theory of the answering defendants.”
Again it was said:
“But the priority of right to the use of the waters from this stream was the vital issue before the court.”
And in order, as it was said, that the superior court should have an opportunity to find the necessary facts, and to determine the priorities of the respective parties to the use of the waters in controversy, the cause was remanded to the superior court—quoting the language of this court—
“to try the same upon the testimony adduced, and such further evidence as may be produced by the parties, and to determine the priority of rights of the respective claimants, and by decree to establish such priorities and enjoin all parties perpetually from interference with such rights so decreed.”
Unchallenged by petition for rehearing or otherwise, the cause was remanded, with the above specific instructions, and was tried by the lower court upon the theory suggested by this court, and, we think, was properly tried.
On the merits, from an examination of the testimony, we do not feel justified in disturbing the findings or conclusions of the court. The number of findings made by the court was not material, as they did not conflict with each other, and all the findings were within the pleadings and the jurisdiction of the court.
The judgment is affirmed.
