1 Wash. 566 | Wash. | 1889
The opinion of the court was delivered by
This is a case where the beneficiaries of the plaintiff claim to have appropriated two-thirds of the waters of Tenem creek in 1873. The property is situated in Yakima county, Wash. T. The neighborhood where the ditch is said to have been located and the water appropriated consisted, at the time of the commencement of the ditch, of no more than eight or nine persons. The land was unsurveyed land of the United States. All of these parties in the neighborhood, except Thorpe and Hale, composed a company for the purpose of appropriating the water, partly for the benefit of the land already taken by one or two of its members, and partly for the purpose of being used at some future time by other settlers locating upon the land which was to be watered by the ditch. The defendant Thorpe did not become a member of the company, but claimed land below where the ditch tapped the creek. He was fully aware of the formation of the company, and its purposes, and made no objection whatsoever to the parties taking the water as the ditch and the survey indicated. Afterwards, in 1874, when the ditch company attempted to dig the ditch across Thorpe’s land, he objected to their digging the ditch at that particular place on his land, but consented to their digging it at some other place. The company thereupon had a consultation with Thorpe and his wife as to digging the ditch at the place where Thorpe objected to having it dug, and finally Thorpe signed an
Thorpe was a person who had the qualifications which would entitle him, when the lands became subject thereto, to make a homestead entry of the land, but he had made no actual appropriation of the water except by a number of ditches which were indefinite in size and extent, but which were sufficient, wdien filled, to use all the water in the dry season out of the creek; but these ditches, so constructed, were made after the plaintiff’s appropriation in 1873. The land was surveyed in 1873, and Thorpe made a homestead entry or filing in 1874. The plaintiff claims, according to the local custom of the country and the decisions of courts and the act of 1873 of the legislature of Washington Territory, it was the first appropriator; that the first appropriator of water upon the ¡rablic lands of the United States obtains a vested right to the water so appropriated; and that no subsequent entry of the land could divest this vested right. The defendant claims that, by virtue of his settlement upon the unsurveyed public lands
It has been claimed that the statutes of the Territory of Washington of 1873 do not extend the right to appropriate water to any except land owners. If this were true, such act of the territorial assembly could not restrict the right of prior appropriation as it existed by the local laws and customs and the decisions of the courts, and certainly the legislature did not intend to limit or destroy those rights. The local laws and customs extended the right not only to proprietors of mines and land, but to any others who, for the purpose of any sort of business or trade, or even the sale of water, actually made the appropriation. If this be true, it is entirely immaterial whether the members of the company or the company itself were the proprietors of the land.
The defendant also objects to the plaintiff recovering in this instance for the want of corporate power to bring suit
As the briefs of the respective parties refer to the authorities which have been examined, it is not deemed necessary to cite them in this opinion. The opinion is the result of the authorities so cited.