21 Wash. 277 | Wash. | 1899
The opinion of the court was delivered by
Suit to enjoin the diversion of water. In November, 1877, respondent settled upon the lands described in the complaint and received a patent therefor in February, 1882. A stream of water, formed from confluent springs, flowed across the premises, entering from the south side thereof and running thence in a northerly direction to the Snake river, on the northern boundary of said premises. Appellants severally occupy premises further up the stream, and through which it flows. Appellants’ grantor settled on premises, upon which they have been diverting the waters of the stream, in the autumn of 1881, as a pre-emption claim, and received a patent therefor in June, 1884. Appellant Benjamin Ish is the owner in fee, and the other appellants are his tenants. The springs which are the source of the stream are situated southwesterly from appellants’ premises, and flow northerly through the same to and through respondent’s premises, and this stream is the only one touching any of the lands in question except Snake river, which flows along the north side of respondent’s premises. Appellants have no water except said stream. Portions of the lands of appellants are adapted to the growth of fruits, vegetables and berries, and require irrigation, and so do the premises of the respondent. The superior court made the following finding:
*279 “ That in the spring of 1878 the plaintiff appropriated all the water of the stream above described by the means of the ditch, the head of which was on the above described lands and premises settled by the plaintiff, and conveyed said water over and across said premises by means of said ditch and used the same for the purpose of irrigating the grounds preparatory to planting orchard trees afterward planted by him on said land; that said plaintiff planted during the spring of said year 2200 trees, and all of the water flowing down said stream was conducted through said ditch and used in preparing the soil for planting and for irrigating said trees after the same were planted during the irrigating season during the year of 1878, to-wit: During the months of March, April, May, June, July, August and September; that the use to which plaintiff applied said water was a beneficial use and the whole of the water was necessary for the proper care and cultivation of the orchard by him planted during the said season; and continuously since said time the plaintiff and his said grantors have gradually enlarged said orchard; and ever since the year of 1878 the whole of the water of said stream has been required and actually used in the necessary and proper cultivation and irrigation of said orchard; during the irrigating season aforesaid, and at the time of the attempted diversion or diversions as hereinafter mentioned the whole of the water flowing down said stream was actually appropriated and used by the plaintiff in irrigating and carrying forward his orchard; and said waters were during all the said time and are now applied by the plaintiff to a beneficial use.”
And also found that appellants used a small quantity of water from said stream in the year 1881 for irrigating a small garden, but that not a sufficient amount of water was used to perceptibly diminish the flow of water below, and that no water was used for irrigating purposes thereafter by appellants until the year 1891, at which time he used a small amount of the water of the stream for irrigating the garden, but that it did not perceptibly diminish the flow.of the water below; that appellants, in the year
The fact appearing that respondent first diverted the water from the stream where it ran through his own premises does not militate against his appropriation. The right ■of appropriation, as defined by the best authorities, is not ■controlled by the location of the stream with reference to the premises which are irrigated; and the further fact that the point of diversion may have been at times changed •does not affect the right. The right to use the water is the essence of appropriation; the means by which it is done are incidental. These considerations being decisive •of the case, other questions discussed relative to the claim of right by prescription and the principles controlling the same, and the distribution of water among equal riparian ■owners, are immaterial here.
The judgment of the superior court is affirmed.
Gordon, O. J., and Anders and Dunbar, JJ., concur.