98 Wash. 401 | Wash. | 1917
This is a controversy between two domestic corporations engaged in the irrigation of lands, over the right to divert, store and use the waters of a certain stream called Sweat creek, on the West Fork of Loop Loop creek, in Okanogan county. As both parties appealed from the decree entered, the parties will be referred to herein as plaintiff and defendant.
Each party, by affirmative pleadings, set forth its several appropriations, by notice, of the waters of the stream; the diligent construction of diversion works; the diversion of the waters by it, and the application thereof to beneficial uses to the extent of the diversion; the interference therewith by the other party, and irreparable damages resulting therefrom to the parties respectively. Each party prayed that its title be quieted in and to the waters of the stream to the extent of its appropriation and use, and for permanent injunctive relief.
The court decreed:
“(1) That, before defendant initiated any claim to the water of Sweat creek, plaintiff, during the summer of 1911,*403 prior to the filing of any notice of claim of water right by defendant to any of the waters of Sweat creek, by actual diversion by gravity system, had diverted five cubic feet of water per second of time, and conveyed the same through the Clark ditch, and furnished water thereby for beneficial irrigation, and thereby acquired a water right in the waters of Sweat creek to the extent of five cubic feet per second of time from the 1st day of May until five weeks therefrom; and that plaintiff’s claim for that amount of water to the flood waters of Sweat creek, as against the defendant, was a prior right to such water right.
“(2) That the water notice posted by Edwin Barker on the 28th day of December, 1908, is a separate and distinct filing for a claim of water right from the other water filings of the plaintiff on the Loop Loop and Little Loop Loop; that the notices of water right posted and filed by the plaintiff on the Little Loop Loop and on the Loop Loop are further up the Loop Loop than where Sweat creek empties into the Loop Loop and that as against the plaintiff the defendant has a superior right to the waters of Sweat creek, excepting as hereinbefore adjudged, to the extent of ten cubic feet per second of time, and that, after the defendant has obtained ten cubic feet per second1 of time, if there are any surplus waters in Sweat creek, the plaintiff may then have the use of the waters of Sweat creek to the extent of eight cubic feet of water per second of time.
“(3) That the plaintiff has a right to divert from Sweat creek through its pipe line and inverted siphon and other proper mains to convey the same into Leader lake reservoir, and to be thence carried for irrigation purposes or irrigation and power purposes on plaintiff’s project.
“(4) That the injunction heretofore granted in this cause against the defendant be dissolved and set aside, and that each party pay his own costs in this action.”
Plaintiff complained of, and appeals from, that portion of the decree to the effect that the water notice posted by Edwin Barker on December 8, 1908, is a separate and distinct filing from its other filings on Loop Loop and Little Loop Loop, and that the court erred in holding and deciding that defendant has a superior right to the waters of Sweat creek, excepting five cubic feet per second for five weeks after May
Defendant complains of, and appeals from, the first paragraph of the decree, and the second paragraph in so far as the same denies the right of the defendant to the waters of Sweat creek, to the carrying capacity of defendant’s ditch when completed, and to the third and fourth paragraphs of the decree.
The initial claim of water right under which plaintiff claims was one filed by Edwin Barker on December 27, 1908, claiming the use of the waters of Sweat creek to the extent of thirty cubic feet per second. The notice states, that it was intended to divert the water at or near the point where a copy of the notice was posted, and more definitely described as about a quarter of a mile up the creek from the junction of Sweat and Big Loop Loop creeks; that the purpose for which the water was intended to be used was irrigation, storage, power, and domestic purposes; that the place of intended use was on lands in townships 32 and 33, north, range 25 E., W. M.; that it was intended to divert the water by means of ditch or flume, or by both and by siphon if need be, across the Big Loop Loop canyon to a reservoir on section 15, township 33, north, range 25 E., W. M.; that the general course of the proposed canal was southwest; that the length of the pro
Defendant projected an irrigation scheme of a different character, operating in a different locality, reaching different lands, but seeks to acquire the same waters claimed by plaintiff for its beneficial use. Plaintiff, in its
The statutory provisions governing the appropriation and use of water are, Rem. Code, §§ 6317, 6318 and 6319:
“§ 6317. Any person, persons, corporation, or association desiring to appropriate water must post a notice in writing in a conspicuous place at the point of the intended storage or diversion, stating therein,—
“(1) That such appropriator claims the water lying, being, or flowing to the extent of one cubic foot of water per*406 second of time, or some multiple or some fractional portion thereof;
“(2) The purpose for which said water is appropriated, and the place or places, as near as may be, of intended use;
“(3) The means by which it is intended to store or divert the same;
“(4) A copy of the notice must, within ten days after it is posted, be filed for record in the office of the county auditor of the county in which it is posted.
Ҥ 6318. If said use is by storage, the appropriator must, within three months after the notice is posted, commence the construction of the works by which it is intended to store the same. If said' use is by diversion, the appropriator must, within six months after the notice is posted, commence the excavation of the works by which it is intended to divert the same; it being herein expressly provided that such works must be diligently and continuously prosecuted to completion, unless temporarily interrupted by the elements.
“§ 6319. By a strict compliance to the above rules the appropriator’s rights to the use of the water actually stored or diverted relates back to the time the notice was posted, but a failure to comply therewith deprives the appropriator of the right to the use of the water as against a subsequent appropriator who faithfully complies with the same.”
The principle applicable is, first in time, first in right. The general contention of defendant is that plaintiff did not comply with these sections, and that, by virtue of the last section, it acquired the rights which it claims; and it contends, among other things, that plaintiff did not begin its storage works within three months as required by § 6319, that the commencement of the diversion works within six months does not protect its rights to store water, that its notice and system was for the storage of water rather than for direct diversion of water, and that, by not commencing storage works within three months, it lost its rights to the water as against subsequent appropriators in good faith. It is also contended
“What constitutes diligence must be determined on the facts of each case. . . . ‘In appropriating unclaimed water on public lands only such acts are necessary, and only such indications and evidences of appropriation are required as the nature of the case and the face of the country will admit of and are under the circumstances and at the time practicable; . . .’ Diligence does not require unusual or extraordinary efforts, but only such constancy and steadiness of purpose or of labor as is usual with men engaged in like enterprises. . . . ‘Such assiduity in the prosecution of the enterprise as will manifest to the world a bona fide intention to complete it within a reasonable time. . . .’” Wiel, Water Rights in the Western States (3d ed.), §383.
“The appropriator must proceed with reasonable diligence to construct and complete such works as are necessary for the immediate application of the water to the intended use. What is a reasonable time and what constitutes reasonable diligence depend largely on the facts of the particular case, . . . but it may be said that they depend chiefly on the physical circumstances of the locality, and the nature and condition of the region to be traversed and its accessibility, the length of the season in which work is practicable, the supply of labor, and the magnitude and difficulty of the works necessary, . . .” 40 Cyc. 711.
See, also, Kimball v. Gearhart, 12 Cal. 27; State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442, 126 Pac. 945.
It seems clearly apparent that the scheme of operations contemplated by plaintiff was as outlined in the notice posted and filed by Barker in December, 1908. That scheme was both to divert the water and use it for irrigation, power and domestic purposes, and also to impound the water by storage. It diligently pursued
The question then arises, What quantity of water did plaintiff acquire by priority of right? It is shown that plaintiff constructed at its intake a flume of the capacity of 34 cubic feet per second of time, and
Defendant attempts to show an abandonment of the rights acquired by the plaintiff by the posting and filing of a notice on Sweat creek of December, 1908, and the work done there
As to the first contention, the mere fact that plaintiff at one time contemplated the construction of two additional reservoirs, by no means indicates the abandonment of its general scheme for the diversion and storage of the waters as contemplated in its original appropriation. The fact that a map filed in the land office does not show the location of the flume and pipe line from Sweat creek across Loop Loop canyon cannot show an intention to abandon its Sweat creek water rights. That map bears a note indicating the point on Sweat creek where the Barker location was filed. At the time that map was filed in the land office for the purpose of obtaining a right of way through the national forest for canals and flumes, the flume and pipe line had not been definitely located and could not be shown on the map. The fact that the Loop Loop flume, the main canal of plaintiff along the Loop Loop, is of the same size below as above the mouth of the pipe line from Sweat creek is no evidence of abandonment of its general project to appropriate, divert, store, and use the waters of Sweat creek it had claimed in 1908.
Errors are claimed by defendant upon certain proceedings of the court in delaying decision for several months after the ninety-day period required by law, and in refusing to reopen the cause on application of defendant on a showing by affi
Upon the merits of the whole case, the record convinces, us that plaintiff is entitled to a decree in its favor adjudicating it to be the owner of the first and prior right to divert, store, and use the waters of Sweat creek to the extent at least of eight cubic feet per second of time, as against defendant, quieting plaintiff’s title thereto, forever enjoining defendant from interfering therewith, and allowing to plaintiff its costs.
Reversed on plaintiff’s appeal, and affirmed on defendant’s appeal. Let decree enter accordingly.
Ellis, C. J., Mount, Parker, and Fullerton, JJ., concur.