This action was instituted for the purpose of determining the water rights of the respective
Squillchuek creek is a small nonnavigable stream about eleven miles in length. It arises on the northern slope of the Wenatchee mountains, flows in a northeasterly direction, and, after crossing the Wenatchee valley, discharges into the Columbia river about a mile southeast of the city of Wenatchee in Chelan county. Some time prior to the year 1880, one Philip Miller acquired a tract of land in the Wenatchee valley which was tributary to this stream. For the purpose of irrigating his land, he diverted water from the stream, the intake being about five miles above his land, and conveyed the water for irrigation purposes. The appellants are the owners of a part of the Miller right, which consisted of three hundred and twenty miner inches under six-inch pressure. There is no controversy over the water claimed under the Miller diversion, and that is recognized by all parties as a prior right. Some time subsequent to the Miller diversion, and prior to 1890, other settlers in the Wenatchee valley constructed a headgate and ditch, for the purpose of diverting the waters of Squillchuek creek to irrigate their lands. The intake of the Settlers’ ditch was a short distance below that of the Miller intake. After these two diversions, the settlers on land tributary to the stream and above the two intakes mentioned, diverted water for the purpose of irrigating their respective lands. In all, there are about ninety diversions, and approx
In 1903, the Wenatchee Canal Company diverted water from the Wenatchee river, and conveyed it in a southerly direction until the ditch of that company met or crossed the Settlers’ ditch. When the Wenat-chee Canal Company was being organized, many of the farmers under the Settlers’ ditch turned over their stock in the corporation which distributed the water from that ditch to the promoters. The lands under the Settlers’ ditch, since the Wenatchee Canal Company’s ditch or “highline,” as it is called, was constructed, have been irrigated from that source. That ditch furnishes an abundant supply of water. The settlers tributary to Squillchuck creek above the intake of the Miller ditch and the Settlers’ ditch have, since 1903, appropriated and used all the waters of the ditch except flood waters and the waters owned under the Miller right.
In 1916, the Wenatchee Canal Company, having failed, transferred all of its assets to the Wenatchee Reclamation District, since which time the “highline” has been operated by this district. In 1921, or about that time, due to a flood or freshet, the Settlers’ ditch became closed, and has not been open since that time. Prior to that time, a part of the waters of the stream, especially flood waters, passed through the ditch. In 1923, the Wenatchee Irrigation District conveyed to the appellant, the Millerdale Water Users’ Asso-
The controversy is over the question as to whether the upper settlers or the Wenatchee Irrigation District have a prior right to the waters of the creek which formerly belonged to the owners under the Settler’s ditch. There is some controversy over whether the district has ever acquired the' rights of the settlers upon the ditch, and also whether, after 1903, the Settlers’ ditch rights were ábandoned. It will be assumed, without so deciding, that the Wenatchee Irrigation District acquired whatever rights' the settlers on the ditch had, and that at no time was there an abandonment. The controlling question is whether the settlers above the intakes of the Miller ditch and the Settlers ’ ditch have acquired a right to all the waters in the stream, except flood waters and the waters coming under the Miller diversion, by adverse user.
Since the construction of the “highline” canal or ditch, the'lands'which formerly were under the Settlers’ ditch have, as stated, been irrigated from that source. The lánds of the settlers up the stream have been irrigated from the stream. There is some evidence, much of which is indefinite as to time and which is not very convincing, to the effect that, from time to time, the owners on the upper part of the stream were interrupted in their use of the water. There is an abundance of evidence that the upper settlers, at
“There is no evidence anywhere indicating that any water, other than the early flood water, has been used from the Squillchuck creek under the Old Settlers’ Ditch right, for the irrigation of lands by the Wenat-chee Canal Company, or its successor in interest, the Wenatchee- Declamation District, since the Settlers’ ditch right was acquired in 1903. It is true, there is considerable testimony that water was run from the Squillchuck creek into the EGghline canal from time to time during the flood season, .and there is some testimony indicating that when there was a shortage, some ditch walker or water master was sent up the creek to secure additional water, but as to any such water being secured, this is purely hearsay. No one testified that he actually went up the creek and secured water, after the flood waters had subsided, on behalf of the Old Settlers’ Ditch right, and the settlers up the creek have uniformly testified that their water has never been shut off by anyone except on account of the first right, the Philip Müler right, for 320 inches of water under a six-inch pressure. It must be borne in mind that substantially all of the witnesses, testifying as to the use of the old Settlers’ right, are now interested in enlarging the first right, now owned by the Millerdale Irrigation District.”
The evidence in the case is.voluminous, the abstract of the testimony covering approximately two hundred and ninety pages. It is not possible, without unnecessarily prolonging this opinion, to review it in detail. It may be said that, after an attentive consideration of
The judgment will be affirmed.
French, Millard, and Parker, JJ., concur.