Lawrence v. Sander

ON PETITION FOR REHEARING. This cause was determined by per curiam opinion in 166 Wn. 703,7 P.2d 567. Appellants have applied for a rehearing, based upon several grounds which they contend entitle them to the relief they ask. Respondents have answered appellants' petition for rehearing, and the questions presented have received careful consideration.

Several actions were consolidated for trial resulting in the judgment in respondents' favor, from which appellants have appealed.

For a general statement of the facts, reference is made to theper curiam opinion above referred to, and to the case ofHaberman v. Sander, 166 Wn. 453, 7 P.2d 563. The different respondents who prevailed in this action own, in severalty, different tracts of land variously affected by the diversion of water from Wilson creek which appellants desired to make. By the decree appealed from, appellants were perpetually enjoined

". . . from diverting or using any of the water claimed under the Sander rights by diversion through said Adams-Schnebly ditch or by diverting the same at any other point above the lands of any of the several plaintiffs in any of the actions referred to herein."

Appellants, in their petition for rehearing, contend that this portion of the decree is too broad, in that it grants to certain of the respondents a perpetual injunction in restraining appellants from diverting water from Wilson Creek at points below the lands of such respondents.

We are convinced that, on the main issues presented, appellants' petition for a rehearing is without merit, and the same is denied; but this order is without prejudice to the right of appellants to move the superior court for a modification of the decree in connection with the matter hereinabove referred to, as it is evident that the respective respondents are concerned only with diversion of water at points above their several properties.