47 Wash. 310 | Wash. | 1907
This is a proceeding to review an order of condemnation made in the case of Spokane Valley Land and Water Company v. Liberty Lake Irrigation Company and Arthur D. Jones & Company. The order was for the condemnation of a way for a ditch and the riparian or littoral rights of relators to the waters of a nonnavigable arm of Liberty Lake. In the years 1904 and 1905, the water company built a dam across an arm of the lake which prevented the water thereof from reaching relators’ premises. An action was brought to enjoin the company, and the court granted an injunction against further interference with the water until the water company should condemn the use of the water in the arm of the lake. Thereupon the present proceeding was had, and from the order of condemnation made, this appeal is prosecuted.
The relators contend, (1) “that the courts have never been granted power to condemn water which is ‘needed’ by the owner for' irrigation purposes [Bal. Code, § 4156 (P. C. §' 5871)] ; (2) the water company does not need this water because it owns an ample supply in the Spokane river; (3) no proof was made as to the extent of time the water sought to be condemned is intended to be used.” We will notice these contentions in the inverse order.
As to the second contention, it appears from the record that the water company had appropriated, and was capable of using, a large supply of water from the Spokane river. We do not think, however, that this fact in itself is sufficient to defeat the order of condemnation made herein.
As to the first contention, the parties hereto are at variance touching the meaning of the word “needed,” as used in § 4156 supra, which is as follows:
“The right herein given to condemn the use of water shall not extend any further than to the riparian rights of persons to the natural flow of water through lands upon or abutting said streams or lakes, as the same exists at common law, and is not intended in any manner to 'allow water to be taken from any person that is used by said person himself for irrigation, or that is needed for that purpose by any such person.”
Relators contend that the statute authorizes and requires an exception from the condemnation order of all the water that is used by such owner or that may be hereafter needed to irrigate the lands abutting upon said stream or lake. The trial court, however, held that the meaning of the statute was that the riparian owner could reserve so much of the water as was “used and needed.” It was contended by respondent that, under the act of Congress approved March 3, 1877 (1 Supp. to U. S. Rev. Stats. 137), relators had no riparian or littoral rights, inasmuch as their land was not patented by the government until after, the date of the passage of this act. Assuming, but not deciding that this is correct, we think the effect
In the recent case of State ex rel. Kettle Falls etc. Irr. Co. v. Superior Court Stevens County, 46 Wash. 500, 90 Pac. 650, this court said:
“Under Bal. Code, § 4156 (P. C. § 5871), the ordinary abutting owner must submit to the condemnation of his riparian rights to the natural flow of the water as at common law, with the limitation, however, that water ‘that is used by said person himself for irrigation, or that is needed for that purpose by any such person5 may not be condemned.”
See, also, Nesalhous v. Walker, 45 Wash. 621, 88 Pac. 1032.
The question then turns upon the meaning and intention of the legislature by the expression “needed,5 as employed in § 4156, supra. We think it means the water necessary to irrigate the land of the littoral or riparian owner which he now has under irrigation, and also that which he intends to, and will, place under irrigation within a reasonable time. It cannot be supposed that the legislature intended that a riparian owner could prevent an irrigating company from appropriating water not then in use but which the riparian owner might need and use upon his land at some distant, indefinite time in the future. Such a construction would be in the interest of the speculator rather than for the encouragement of the land
The order of condemnation made by the honorable superior court herein is reversed, and the case remanded with the following instructions: The trial court shall ascertain how much of appellant’s land is ready for water at this time, and how much of its land •( owned at the time this action was commenced) it intends to and will within a reasonable time-—say two or three years—place under irrigation from the waters sought to be condemned. Upon ascertaining the facts as to
Hadley, C. J., Crow, and Dunbar, JJ., concur.