Domrese v. City of Roslyn , 101 Wash. 372 ( 1918 )

Chadwick, J.

The facts in this case are partially stated in our opinion in the case of Domrese v. Roslyn, 89 Wash. 106, 154 Pac. 140.

Plaintiff makes further allegation of fact that, before the waters of Cedar creek, or Domrese creek, as it is called in this case, were diverted in whole or in part, plaintiff had put a part of her lands to crop and had used the waters of the stream to irrigate them, that her lands are dry and arid, and that crops cannot be grown or matured thereon without the use of water. This action was brought to recover compensation for the diversion of the water and for the right of way for the pipe line. The court held upon demurrer that the action was barred by the statute of limitations.

A municipality has a right to take of the waters of a stream for the purpose of supplying its inhabitants with water for domestic and other uses. But, like any other public agency, it cannot do so without condemning and making compensation for the loss of the use of the appropriated waters or the extinguishment of the riparian rights, in toto or pro tanto, of the affected owners. Rem. Code, §§ 8005, 8010-8.

A right to continue to take water lawfully appropriated, or to have water follow its accustomed flow— the riparian right—is a valuable right of property, and is so far incident to the land that it has been held to be a part of the land itself. Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 38 Pac. 147, 26 L. R. A. 425 ; Judson v. Tide Water Lumber Co., 51 Wash. 164, 98 Pac. 377; Still v. Palouse Irr. & Power Co., 64 Wash. 606, 117 Pac. 466.

This being so, the case falls squarely within the rule of Aylmore v. Seattle, 100 Wash. 515, 171 Pac. 659; see, also, Jacobs v. Seattle, 100 Wash. 524, 171 Pac. 662.

Upon the authority of these cases, the judgment of the lower court is reversed, and the cause remanded with instructions to overrule the demurrer and have further proceedings.

Ellis, C. J., Fullerton, Mount, and Holcomb, JJ., concur.