Gallio v. Ryan ( 1930 )

I dissent. The majority ruling, in my opinion, ignores the force of the findings of the trial court. It is also wrong in deciding that the respondent made no valid appropriation of any of the waters of Star Canyon creek. Among other things the court found in substance that respondent applied to the state engineer for permission to divert and use surplus waters of Star Canyon creek, and was thereafter granted a certificate of appropriation giving him the right to divert and use, in the irrigation of the lands described in his answer and for domestic and stock watering purposes, 0.4905 second feet of the surplus and unappropriated waters of Star Canyon creek; that the waters diverted by respondent were surplus and unappropriated waters of said stream; that the total seasonal flow of Star Canyon creek in normal and abnormally wet years is more than sufficient to satisfy the rights of both appellant and respondent in and to the use of the waters thereof; that the Organ main ditch now constitutes, and for more than forty years last past has constituted, the natural stream and channel of said Star Canyon creek for all purposes, including the place from which an appropriation can be made.

There is ample evidence to support these findings and they ought, therefore, under a well-settled rule to bar this court from holding that the waters of Star Canyon creek, filed upon and diverted by respondent, were waste waters in which he could acquire no right by appropriation.

The right of the trial court to find from the evidence that the Organ main ditch became the natural channel and stream for all purposes is supported by both reason and authority. Hollett v. Davis, 54 Wn. 326, 103 P. 423; Wiel on Water Rights (3d ed.), vol. 1, sec. 60, and cases cited in notes 19 and 21; Gould on Waters (3d ed.), sec. 225. The reasoning of Judge L.O. Hawkins, the trial judge, upon this phase of the case is most persuasive. He said:

"Defendant (appellant) has cited authority to the effect that to make a valid appropriation of water it must be diverted from a natural water course or natural body of water, and that since plaintiff's (respondent's) ditch does not take out from the natural channel of Star Canyon Creek, he has not made a valid diversion. However, like practically all principles in law there are exceptions to the rule that the diversion must be from a natural water course or body of water.

"If the law were as contended for by defendant there could never be any valid appropriation of water from Star Canyon Creek below the Ryan Dam therein, the evidence showing that for more than forty years no water has run in the old channel of Star Canyon Creek below that dam, except in times of extremely high waters when for a short time some water would break over the solid dam of the defendant. By the building of this solid dam in the Creek more than forty years ago and its maintenance to the present time, the channel of said creek has been changed from its original location, and by the continual use of the Ryan ditch below said dam for the entire flow of the stream in and out of irrigation season, winter and summer, the artificial ditch has become the natural channel for all purposes of appropriation as well as for other purposes. And the so-called waste water which plaintiff filed upon has evidently been the water diverted by defendant and her predecessors in interest in excess of the quantity needed by them. By the application and use of this surplus through the Ryan ditches, through which at all normal times has been diverted the entire flow of Star Canyon Creek, plaintiff has, without objection, until the last two or three years, secured a vested right, subject to the prior right of the defendant, to the amount of his certificate, and such a right which he is entitled to have quieted and protected by a decree of this court. A person cannot divert the entire flow of a natural stream through his artificial ditches, provided the flow is in excess of the amount to which he is entitled, continue such diversion for forty years or more and thus prevent a person from appropriating such surplus by tying on to the ends of his ditches or even diverting such surplus from the ditches themselves; such flow being the natural flow of the stream and the artificial channels become the natural channel of the stream after a lapse of such time as we have in this case: In support of this principle of law we cite and rely upon Wiel on Water Rights (3d ed.), vol. 1, sec. 60 and cases cited in notes 19 to 21. Then too, such seems so clearly to be equity and justice that if there were no cases to support the right of plaintiff to file upon such surplus waters so diverted by defendant the decision in this case should establish such to be the law."

Respondent made his application to the state engineer, received his certificate of appropriation, cultivated his lands, and otherwise used the waters diverted by him for domestic and stock watering purposes, with reference to the changed condition of the stream. Equity ought, therefore, to estop appellant from asserting that this changed condition of the stream brought about by her predecessors in interest and maintained by them and her over a long period of time operates to defeat respondent's right of appropriation.

I do not think the fact that respondent's ditches make no direct connection with appellant's main ditch, ought to be permitted to defeat the former's appropriation. His ditches have been so constructed as to collect the surplus waters coming from appellant's lands. They collect such waters when the same are not diverted by appellant to lands entitled to no service of water. Respondent's ditches divert the surplus and unappropriated waters of Star Canyon creek just as effectually as if his ditches pierced the bank of the creek above appellant's dam or the bank of her ditch below the dam. To hold to the contrary is to give more heed to the form of an appropriation than to its substance. Equity dislikes a discrimination of this kind.

If appellant considers the continual flowing of surplus waters over her lands to respondent's intercepting ditches injurious to the land, she may remedy this by permitting his quota to come down the former channel of the creek, for the evidence shows that his ditches are so constructed as to intercept and collect any waters that may come down this course.

The decree should be affirmed.