75 Wash. 466 | Wash. | 1913
This is a contest over a water ditch and the use of the water flowing therein. There is much testimony and much conflict, but we find the facts to be as follows:
In 1899, appellant purchased the location rights to the Commonwealth placer mining claim, in Myers creek mining district, in Okanogan county, and in October, 1901, obtained a patent. No mineral was ever discovered within the boundaries of the placer claim, and it is apparent that the real intent of the location was for townsite purposes upon which to locate the town of Bolster. In October, 1899, appellant constructed a small ditch from Myers creek, and conveyed water from the creek to the townsite, a distance of about two and three-fourths miles. Por part of this distance, the
Bolster did not prosper, and in 1902 it was, and has since remained, a deserted village. Upon reaching the townsite, the water was permitted to run wild, no attempt being made to confine it to any particular channel or store it for future use. It is probable, although the evidence is not clear, that a small portion of the water was used by the few inhabitants of Bolster as late as 1901. The evidence also discloses that some of the inhabitants obtained water from artesian wells, and others from Myers creek. Some use was also made of the water in mailing a few thousand brick, and for mixing plaster. It is also testified to that the water was used for filling the vats used by a smafi shingle mifl, although we are inclined to the view that the weight of the evidence is to the effect that the shingle mill obtained the smaU amount of water required first from Nicholson creek, and later on, after it changed its location, from Myers creek. It is impossible to determine the amount of water it used, but it must have been a small amount, and as before stated, the great body of the water after reaching Bolster was permitted to run to waste. The evidence does not disclose any use made of this water by any one at Bolster subsequent to 1901.
In 1902 respondents located a homestead upon the lands across which the ditch ran, and appellant informed them
The court below held that appellant was the owner of the ditch across the respondents’ land, and had the prior right to the use of the water to the extent of 20 miner’s inches, under a four-inch pressure, and that the balance of the water belonged to the respondents. Prom this decree, each party has appealed, claiming the right to all the water to the entire exclusion of the other party. We do not understand the theory upon which the decree is based in awarding 20 miner’s inches under a four-inch pressure. We find nothing in the record as to any present or contemplated use of such measurement of water. The appellant, so far as we can find, has made no beneficial use of this water since 1902, except that he testified that, on one occasion in 1904, he made some slight use of it in connection with some drilling in a prospect hole. So far as any beneficial use to which appel
The judgment is reversed upon respondents’ cross-appeal, and the cause remanded with instructions to grant respondents the relief prayed for, and their costs.
Crow, C. J., Fullerton, Main, and Ellis, JJ., concur.