112 Wash. 579 | Wash. | 1920
This is an application on the part of the appellant to allow and fix tbe amount of a supersedeas and stay bond during tbe pendency of tbe cause on its merits on appeal to this court. It appears that, a number of years ago, tbe West Side Irrigating Company appropriated water out of tbe Yakima river, and ever since has been openly using and furnishing such water for irrigation and domestic purposes to its shareholders upon lands owned by them, amounting to about seven thousand acres, situated in the county of
It is contended by the petitioner, and conceded by the respondent (so we find it unnecessary to decide the matter), that there is no provision of the water code, or otherwise, that specifically provides for a supersedeas on an appeal from the judgment of the superior court in such an instance as this. That this court has the power, in a proper case, to allow and fix the amount of a supersedeas bond in the complete exercise of its appellate and revisory jurisdiction is
Respondents are- acting officially and not otherwise. It appears from tbe application and tbe affidavits on behalf of tbe parties that tbe irrigating season is tbe months of April-October, with a need during tbe month of October of less than one-half of tbe amount of water used during tbe other months. It is shown by tbe appellant that its shareholders are owners of cultivated lands, tbe crops on which were grown with reference to tbe use of all tbe water appropriated through its ditch, ánd that to cut off or so materially reduce their supply at tbe time of bearing tbe application, viz., tbe latter part of August, would cause them irreparable damage. On tbe contrary, it does not appear that other crop raisers have added to their cultivated areas this season upon tbe faith of any diminution in tbe amount of water to be used by tbe appellant. It was known last season, and all of tbe present one, that tbe appellant was involved in litigation contending for tbe right to bold and use tbe same quantity of water it bad theretofore used, and that at all times from August, 1919, until tbe date of tbe judgment of tbe superior court on May 7, 1920, tbe appellant continued the right to use its usual amount of water, because of a stay bond it bad furnished at the time of taking tbe appeal to tbe superior court from tbe order of tbe hydraulic
It is therefore ordered that the petitioner, appellant, shall have the right -to stay the enforcement of the order complained of, and which was affirmed by the trial court, until the further order of this court, by filing in the office of the clerk of the superior court of Kittitas county, within ten days after receiving notice of this order, a bond in the penal sum of $2,500, with sureties to be approved by the clerk of that court, properly conditioned as a supersedeas and stay bond.
Holcomb, C. J., Fullerton, and Parker, JJ., concur.