125 Wash. 14 | Wash. | 1923
This complicated proceeding originated in a petition filed by M. C. Moore & Sons, a corporation, with the state hydraulic engineer, now the state supervisor of hydraulics, praying for the determination of the relative rights to the use of the waters of Doan creek, in Walla Walla county, Washington. Doan creek is a small stream arising from springs on land known as the Oakley Johnson place, running-westerly through the lands of the various owners who are parties to this proceeding, and flowing into Mill creek just above its confluence with the Walla Walla river, about four miles westerly from the source of the stream. It is fed throughout its flow by numerous small springs on the lands of the various riparian owners. It traverses a section of the Walla Walla Valley where the first pioneer settlements in that region were made, the lands at its mouth having been originally entered by Marcus Whitman.
Appellant McBee succeeded to the rights and interests of M. C. Moore & Sons, a. corporation, and the Baker Loan and Investment Company, purchasing-lands in section 33, about the middle course of the
The proceedings were initiated and maintained under the provisions of the water code of Washington, Laws of 1917, p. 447 (Rem. Comp. Stat., § 7351) [P. C. § 7203], and proceeding thereunder the then hydraulic engineer caused notice to be given of the filing of 'the petition and of the hearing thereon to be had, to all of the persons claiming the right to divert water from the stream. Section 15 of the law, pp. 454-455 (Rem. Comp. Stat., §7365) [P. C. §7217], provides that a summons shall be issued at the direction of the superior court, naming the return day of the summons. In the proceedings the various landowners answered the petition and set up their claims or rights in conformity with § 17, pp. 455-456, Laws of 1917 (Rem. Comp. Stat., §7367) [P. C. §7219]. The hearing was then had before the state hydraulic engineer, who took the testimony as referee, in accordance with § 19, p. 456 (Rem. Comp. Stat., §7369) [P. C. §7221], Upon the return of the report of the hydraulic engineer, as referee, in pursuance of § 20 of the water code (Rem. Comp. Stat., § 7370) [P. C. § 7222], the court made an order fixing the time and place for hearing the claims, which was had, and the evidence taken before the engineer was received by the court. Objections were
“ Before attempting to analyze the evidence it is deemed advisable to make a general survey of the law of this state with reference to the rights or use of water inasmuch as the parties to this proceeding variously claim rights of appropriation, riparian rights, and rights by prescription.
‘ ‘ The lands involved in this proceeding were settled as follows, according to the findings of the referee:
“Swegle, 1846; McBee, 1863; Johnson, 1874; McArthur or DeRuwe, 1877; Coffin, 1879; Showerman, 1880.
“Therefore under the rules laid down there could have been water appropriated for the benefit of the lands which were early settled as against those lands later settled, and while the later lands remained public lands, and only to that extent. The Swegle lands, for instance, may therefore have a right by appropriation as against all the other lands, but under the law it had annexed inseparably to it a riparian right which could not be divested in favor of any of the other lands involved, by appropriation. The Showerman lands, on the other hand, being the latest in time of settlement would be subject to such rights of appropriation as had become vested in favor of all the other lands, and would have annexed to it its riparian rights, subject only to vested prior appropriations and its equal, but not greater or less, riparian rights with all the other land. As to the McArthur or DeRuwe lands it is probable that they remained public lands until the admission of the State into the Union, so that as against them appropriations could be made until 1889, but it is equally true that no title other than in the State would accrue to this land until 1909, so that it would seem that this land could not have acquired any water rights by appropriation, but of course has its riparian rights.
“As to all these lands there is evidence of some early irrigation. There was a.ditch on the Swegle*18 place as early as 1874 or 1875. On the McBee place there was some irrigation as early as 1870 or 1871. There is testimony that of this tract about 20 acres were irrigated in 1884 or 1885. In 1874 the Johnson tract was, irrigated. In 1882 three or four acres of it were irrigated. In the early seventies the McArthur tract was irrigated to some extent. As to the Coffin lands there is no showing of any irrigation prior to 1884 or 1885. The earliest irrigation shown of the Showerman tract cannot be earlier than 1881. While in some instances there is evidence as to the number of acres irrigated at these early periods, there is not, in a single case, any evidence as to the amount of water used, and in the absence of such evidence there is nothing upon which the court could decree any right by prior appropriation. Longmire v. Smith, 26 Wash. 439, 67 Pac. 246, 58 L. R. A. 308.
“All of the land is riparian and their rights as such are fixed by the rules laid down, but in the present state of the evidence the court cannot decree those rights because of the peculiar situation surrounding them. There is not sufficient evidence to the amount of water naturally flowing in the creek over the various tracts. •
“Have any of these parties acquired rights to the waters of the stream by prescription? The strongest showing in this respect is with respect to the McArthur and McBee lands. As to the MpArthur lands, there is testimony that the water has been used for six or eight yedrs. There is testimony that there was no shortage of water on the McBee lands until 1913 and 1914. As to the McArthur lands, Mrs. McArthur testified that she had been using all of the water for fourteen years, but she also testifiéd that about as much water left the place as came onto it so that there could not have been such notice as would apprise the lower owners that their rights were being interfered with. As to the McBee tract the evidence is not essentially different in its effect. I conclude therefore, that there is no sufficient showing of adverse user to establish a right by prescription in favor of any of the lands.
'‘-‘The case will be referred again to the State Hv*19 draulic Engineer for the taking of further testimony and making further report herein. The referee will give reasonable notice to the attorneys of record for the respective parties of the time and place of such further proceedings. Any of the parties hereto may offer any additional evidence deemed to be material, but the referee is directed especially to
"1. To take such further evidence as may be offered by any party showing the amount of water actually appropriated at any time when a right by appropriation could have been acquired as against any of the other lands.
"2. Evidence and measurements of the natural flow of water in Doan Creek, which, without interference, flows onto each of the tracts.
"3. The amount of irrigable land in each tract.
"4. The amount of land that can be irrigated on each tract by any means of diversion, gravity, or otherwise, upon the land itself, without reference to the amount of water available for the irrigation of such tract.
"5. Evidence any party may see fit to offer relative to rights to divert water at points off his own land, or rights of way over lands of others.
"6. Make to the court any recommendations deemed advisable by the State Hydraulic Engineer. ’ ’
The state hydraulic engineer, as referee, thereupon proceeded to take further testimony, after due notice, which was thereafter reported to the court, together with substantially the same findings of fact, conclusions of law, and recommendations to the court as had been previously made. In his report he called attention to the fact that evidence of the conditions as to the land and water actually used by any settler at so remote a time as most of the lands were occupied was impossible to obtain so as to fix the amount of water used, and the number of acres irrigated, with certainty. He asked that the original report be confirmed, but he also submitted an alternative schedule of rights,
The trial court, however, was of the opinion that the evidence was insufficient to support any rights by appropriation, and adopted a schedule of rights based entirely upon the doctrine of riparian rights, and fixing the percentages or proportions merely of the waters of the stream based upon'the entire irrigable acreage of each owner upon the stream.
The first report and schedule of the hydraulic engineer, based entirely upon the rights by appropriation, dating from the initiation of the rights by diversion from the stream upon lands owned or occupied by the appropriators, will not be set out because, as the court properly found, it cannot be sustained.
We have so often held that the law of riparian rights, modified to the extent of reasonable use by the riparian owners and to the extent of appropriations upon public lands, obtains in this state, since the very early case of Benton v. Johncox, 17 Wash. 277, 49 Pac. 495, 61 Am. St. 912, 39 L. R. A. 107, down to the recent ease of Smith v. Nechanicky, 123 Wash. 8, 211 Pac. 880, that it is unnecessary to lengthen this decision by citing, them all.
On the other hand, however, we have recognized the right of prior appropriation of water as against lands belonging to the public domain, until segregated from the public domain, and that such prior appropriation, once established, is superior to riparian rights and subsequent appropriations. Benton v. Johncox, supra; Isaacs v. Barker, 10 Wash. 124, 38 Pac. 871, 45 Am. St. 772, 30 L. R. A. 665; Longmire v. Smith, 26 Wash. 439, 67 Pac. 246, 58 L. R. A. 308; Sander v. Wilson, 34
McBee, appealing, claims that the court erred in its finding as to the date and effect of the appropriation of water of Doan creek by McBee’s predecessors in interest, and in its conclusions as to the law respecting the same, to the effect that McBee has no right by prior appropriation superior to that of defendant DeRuwe, and of the other defendants, sufficient in quantity to irrigate economically and not wastefully 125 acres of McBee’s land.
The state of Washington, appealing, contends-, first, that the underlying principle upon which the original report of the referee is based conforms to the law, and that the schedule of rights contained in that report is equitable, definite and practicable; or, second, that, in any event, the record shows clearly that the claimants in at least two cases are entitled to rights by appropriation as indicated in the referee’s alternative report; and third, that the judgment of the trial court does not conform to the provisions of the water code, is inequitable, indefinite and against the best interests of irrigation practice.
Respondent DeRuwe contends that his land, being-school land reserved from the public domain by the act of Congress relating to school lands of the territory of Washington, passed in 1853, and the subsequent act of 1859, setting aside sections 16 and 36 in each township for school purposes,' and where either of such
The status of the DeRuwe land, as to when it became riparian with reference to the other owners and appropriates, is a particular question in this case, and we will examine that first.
The acts of Congress in question relied upon by respondent DeRuwe merely reserved sections 16 and 36 in each township for the purpose of being applied to the common schools, and authorized the selection of lieu lands where such sections in any township had been occupied by actual settlers prior to the survey thereof. The selection of the lieu or indemnity lands by the county commissioners on behalf of the territory, could not, and did not, amount to any segregation of the lands from the public domain, unless implementing an actual but incomplete grant. This was merely an act authorized and done for the purpose of saving the entire quantity of the lands reserved for school purposes.
We therefore hold that the DeRuwe land was not segregated from the public domain in any respect until the admission of the state into the Union in 1889. Prior to that time Congress had passed an act called the “Desert Land Act”, March 3,1877, U. S. Compiled
There were no rights by prior appropriation attached to the DeRuwe land, therefore, and the riparian rights did not attach until June 1909. The trial court properly held, upon the facts adduced, that there was no prescriptive rights acquired by any of the parties to this proceeding.
The next question is, were there any appropriations of the water of the stream prior to the riparian rights of DeRuwe and the lower owners?
The evidence as to the irrigation of the McBee land shows at the most the irrigation of about 60 or 70 acres up to the early 90’s. After that time, for some years the area of the land irrigated was variable or dormant. Some .years there were only 30 or 40 acres irrigated. Shortly before the trial, 125 acres had been brought under irrigation. It is claimed on behalf of McBee
By the alternative schedule filed by the hydraulic engineer only the lands of Irene Swegle, a minor, Florence Swegle, a minor, and May Swegle Sheldon, aggregating 12.5 acres, the water for which was appropriated and used in 1875, and the lands of McBee, as grantee of M. C. Moore & Sons and the Baker Loan & Lowest
The alternative schedule of the engineer was worked out nnder the decisions in Offield v. Ish; Longmire v. Smith; Nesalhous v. Walker and Sander v. Bull, supra. We are of the opinion that the Sander case fully sustains the principles upon which the schedule or referee’s report is based, with the exception of the acreage for which the water right was given to appellant McBee, which, in onr opinion, should be 60 acres instead of 125 acres.
We are also of the opinion that the duty of water for the lands in question in that climate and under the conditions existing there, as fixed by the hydraulic engineer at one cubic foot per second for seventy-five acres of land, is reasonable and proper, and appellant McBee concedes it to be so. It should be adopted as the basis for the apportionment of the water as adopted by the engineer.
Respondent contends that the irrigation code was never intended to regulate the use and occupation of vested and established water rights in a stream where admittedly there is no surplus water, and in fact insufficient water to supply the needs and demands of those having vested rights therein; and that it is inconsistent that the law clearly fixes and establishes an important property interest and vested property right as belonging absolutely to individuals, and yet permits or authorizes a quasi public agency to exercise practically complete domination and control over that right.
The decree is reversed, and the cause remanded witli instructions to the court below to put into effect the alternative schedule of the supervisor of hydraulics as modified by this opinion, and to apportion and record the respective rights in the water to the parties hereto in accordance therewith.
Main, C. J., Mitchell, Bridges, and Mackintosh, JJ., concur.