123 Wash. 8 | Wash. | 1923
The appellant is the owner of property in section 7, township 22, N. R. 34 E. The respondent is the owner of the north one-half of section 13, township 22, N. R. 33 E. The appellant’s land was granted by the United States government to the Northern Pacific Railway Company in 1864, and in October, 1880, the railway company filed its map of definite
Duck Lake Creek flows in a southwesterly direction through the portion of Lincoln county where these lands are situated, and passes through section 8, township 22, N. R. 34 E. in a generally westerly direction, and comes into the southeast quarter of section 7 not far from the N. E. quarter-section corner, and passes through the S. E. quarter in a southwesterly direction, leaving the S. E. quarter near the S. W. quarter-section corner; then passes through section 8 and comes into section 13 near the N. E. corner of the section and passes through respondent’s land in a southwesterly direction. This action was begun to enjoin the appellant from in any way interfering with the flow of this creek. The appellant, in his answer to the complaint, interposed a cross-complaint in which he asserted the right to use the water of this creek for irrigation.and domestic purposes, as he claims his predecessors had used it for some sixteen years or more. The respondent asserts three claims based upon, first, prior appropriation, second, riparian rights, and, third, prescriptive use. The trial court found against claims one and two, but awarded respondent a decree in conformity with his third claim.
The testimony of the respective parties is to the following effect: The respondent contends that his testimony showed that, while Gilpin was in possession of
The appellant contends that his testimony showed that, for more than twenty years preceding the commencement of the action, the appellant and his predecessor had irrigated some three to five acres of orchard and garden land on section 7, and twenty acres of grass; that the water was used by Habenschield in the spring and all summer through the ditch already referred to whenever it was needed; that the- appellant subsequently to 1913, when he acquired the property, irrigated his property in section 7 during June, July, August and September of each year, and that this was done by him up to and including 1916; and that after that date the sons of the appellant, who then had charge of the place, irrigated from time to time. The immediate cause of the institution of this action was the construction in section 7 of a swimming pool dam by some boys, which interfered with the flow of the water from section 7 into section 13, which dam, the testimony shows, was not constructed by the appellant or with his consent and has. since been removed, and is of no interest in this action except as having been the cause of its being instituted.
Considering the claims of the respondent in the order in which we have arranged them above:
First, the question of prior appropriation.
The claim filed by Gilpin was of no effect, there being no law at the time he made his attempted filing, permitting him to acquire rights in that manner. The Northern Pacific Railway, the original grantee from the government, took title to both sections affected here prior to any claim of appropriation of water for use on the lands now owned by respondents, and under the holdings of this court no appropriation after the
Second, riparian rights.
The common law doctrine of riparian rights is the rule established in this state. But under this doctrine the riparian owner cannot use all the water of the stream to the exclusion of other riparian owners merely from the fact of his riparian ownership. Such ownership does not give one the right to make an unreasonable use of the water, the rights of all being mutual. Benton v. Johncox, 17 Wash. 277, 49 Pac. 495, 61 Am. St. 912, 39 L. R. A. 107; Nesalhous v. Walker, 45 Wash. 621, 88 Pac. 1032.
In Hough v. Taylor, 110 Wash. 361, 188 Pac. 458, we held that independent of the question of prior appropriation upon public lands, riparian rights are not to be disturbed. It is therefore apparent that the trial court was correct in holding that respondent was not entitled to a decision upon the doctrine of riparian ownership.
■ Third, prescription.
In order for the respondent to succeed upon the theory of prescription, he must show that he had adversely possessed the water in the stream for the statutory period of ten years, and that that possession has been open, notorious, exclusive, hostile and continuous. The question immediately presents itself whether a lower riparian owner can ever acquire title by adverse possession — prescription—to water as against a riparian owner higher up on the stream. Some text books and cases lay down the rule that such a prescriptive right cannot be obtained, but the law seems to be, however^ that such a prescriptive right may be obtained,
In Barnes v. Belsaas, 73 Wash. 205, 131 Pac. 817, we held that the defendants having not continuously for a period of ten years deprived the plaintiff of any water to which he was entitled, did not give the defendants a right to prescription, although they may have trespassed upon the plaintiff’s lands. In this case, the respondent has not established to our satisfaction that he had the uninterrupted use of the water of the stream to the exclusion of the appellant during the period of ten years; for the testimony shows that, since 1900, the appellant has used such water as he needed to irrigate the land which we have above described. Moreover, the testimony does not convince us that the use of the; water by the respondent has been hostile, for it has not been adverse. The question of whether it has been continuous is not necessary to determine, although the respondent contends that continuous does not mean hourly use, but it is sufficient if it was used when necessary. The testimony of the going upon the property of the appellant for the removing of obstructions and keeping the bed of the stream clear, as we read it, refers very largely, if not entirely, to a clearing of.the stream below the point where it was used-by the appellant on section 7, and was not in any way. an interference with the appellant’s use through-,the ditch or intake which was on section 8. The occasion in 1901 when the respondent removed the dam at the intake, ip section 8 is the only act of interference, as far as we can discover in the evidence, which the respondent did in conflict with the appellant’s use of the water through that ditch; but even assuming that that was an inter.-
The cases from this court in which a lower riparian owner has been allowed a prescriptive right against a higher riparian owner are readily distinguishable from the facts of the case at bar. In Dontanello v. Gust, 86 Wash. 268, 150 Pac. 420, the water was taken from a spring which was located on the defendant’s land. The plaintiff constructed an irrigation ditch to take all of the water from this spring to his own land. The intake was upon, and the ditch was constructed across, defendant’s land, and for more than the prescriptive period the plaintiff took all the water of the spring by means of this intake and through this ditch across defendant’s land and on to his own. The court said that, during the prescriptive period, the plaintiff might have maintained an action against the defendant for unlawfully invading his property, and might have prevented the use of the intake and the ditch; and held that plaintiff in that case, having gone on the lands of defendant and taken water from the defendant’s own premises for a period of more than ten years, had acquired a right by prescription to continue so to do. The facts of the present case do not meet that situation, for here the respondent is not depriving the upper owner of the use of any water which he desired to use, nor could the upper owner at any time have enjoined the respondent from doing any of the acts which he may have performed, leaving aside the one incident in 1904. The removing of the obstruction in the stream was a matter which was not an invasion of any of appellant’s rights but were things which the respondent had a right to do
The case of Mason v. Yearwood, 58 Wash. 276, 108 Pac. 608, 30 L. R. A. (N. S.) 1158, was another case in which a prescriptive right was allowed to a lower riparian owner who, for a period of more than twenty-five years, had gone upon the lands of the defendants and had taken water from those lands through ditches, a situation entirely different from the one at bar.
In Allen v. Roseburg, 70 Wash. 422, 126 Pac. 900, another prescriptive right was acquired, the court holding that it was plain there had been an interference which gave rise to an adverse user, and that such interference could have been stopped by the persons against whom the prescriptive right was acquired, had they moved within the statutory time.
We are satisfied that the decree was improper, and that one should be entered in favor of the appellant on his cross-complaint, giving to him the right to use the stream for irrigation purposes on his land in section 7 in an amount sufficient to irrigate not less than three acres of garden and orchard and twenty acres of grass, to the same extent and in the same manner as that right has been enjoyed prior to 1916.
Judgment reversed.