Everett Water Co. v. Powers , 37 Wash. 143 ( 1905 )

Hadley, J.

This suit involves a right of way for a water pipe line, over which the respondent company desires to convey water for the use of the inhabitants of the city of Everett, and, also, the right to divert water for that purpose. The issues and history leading up to the controversy, substantially stated, are as follows: The complaint avers that, in the year 1891, Henry Hewitt, in behalf of a syndicate of New York capitalists, conceived the plan of establishing a townsite at and near' the mouth of the Snohomish river; that in furtherance of the project, in the spring of said year, he purchased five thousand-or more acres of land in that vicinity; that the nearest post-office in the vicinity of the land was Lowell, an unincorporated village; containing at that time approximately one hundred inhabitants; that, among the plans for developing the proposed town, was that of furnishing a water supply, and constructing a water system therefor; that, in looking over the sources of available water supply, said Hewitt deemed it most practicable to utilize the waters of Woods creek, a stream in the vicinity; that, for the purpose of acquiring the waters of said creek, said Hewitt purchased from S. O. Woods certain lands, over which said stream flows and, also, the right to construct the necessary pipe lines, and to divert the waters of the stream for use in said proposed town, which was then generally known as “Lowell;” that said Woods was then the owner in fee simple of said land, so purchased, and that the same was unincumbered, except by a lease to one Crook; that said purchase Avas evidenced by a deed, Avhich Avas duly recorded on May 22, 1891; that thereafter, in the year 1891, said Hewitt proceeded to mark out tire right of way for ai pipe line, and to construct the necessary dams, ditches, flumes, and other apparatus, for the purpose of diverting said waters, and utilizing them in such water system for the proposed town; that such diversion was at that time enjoined by decree, entered in an action brought by said Crook against said Hewitt, such injunction being based upon the rights of Crook, as lessee aforesaid, tire lease antedating the conveyance to Hewitt, and not expiring until the year 1896; that thereupon IieAvitt, being thus compelled to cease operations in the matter of procuring said water supply from Woods creek, sought other sources of supply, and proceeded with the construction of a water system to supply the proposed city, which system is now, and for years has been, owned and operated by respondent ; that the proposed townsite was eventually platted under the name of the “City of Everett,” and that, at the time of bringing this suit, the same was a municipal corporation, containing approximately 18,000 inhabitants; that the aforesaid rights, obtained by said Hewitt from Woods, were by him duly conveyed to, and are uoav owned by, respondent, a corporation, Avhich has for years been engaged in furnishing the inhabitants of said city and its vicinity with water for general municipal, manufacturing, and domestic purposes; that for years respondent has utilized for its Avater system other sources of supply than the said Woods creek, but has always retained its rights in said stream with the intention of eventually utilizing it as a source of supply; that it has, from time to time, acquired the rights of riparian proprietors along the stream, below the intended point of diversion in the tract acquired from Woods; that the growth of the city has been so rapid in the last few years as now makes it necessary to utilize the waters of Woods creek, in addition to other sources of supply, in order to furnish the inhabitants of said city and vicinity with water; that about the 1st of August, 1902, respondent started to complete the works necessary to divert the waters of Woods creek into its general system, hut was met hv claims of appellants, who assert that, from sources of title with which respondent is unacquainted, they are in possession and control of a portion of the lands purchased by Hewitt from Woods, as aforesaid; that appellants have forbidden respondent to go upon or across said land for the purpose of completing the necessary works to divert the waters, they claiming that respondent has no right thereto, and that they threaten by force to prevent the construction of the pipe line across the land. An emergency is alleged, and an injunction asked to restrain appellants from in any way interfering with the construction of said works and the diversion of said waters.

Appellants answered the complaint, alleging that they are the owners of eighty acres over which said Woods creek flows, and that the diversion of the waters at tire place proposed would greatly damage them; that, during the year 1891, said Hewitt went upon the land now owned by appellants, and marked out a right of way and constructed a ditch through the land for the purpose of diverting the waters of said stream, claiming to do so under and by virtue of the conveyance from Woods, heretofore mentioned; that, shortly thereafter, said Hewitt abandoned said right of way and ditch, and proceeded to construct water works at a point about five miles distant from the Woods creek location, and that such works have ever since been used to supply water to the city of Everett; that, since March, 1892, no attempt has been made to divert and use the waters of Woods creek, until about August 1, 1902, when respondent, claiming as the assignee of the rights of Hewitt, attempted to lay out a new pipe line, which Was separate and distinct from the line originally laid out by Hewitt, running through the land on a different route; that when the aforesaid instrument between Woods and Hewitt was executed, it was the intention of the parties that only sufficient water should be diverted from Woods creek to supply the town of Lowell, which then contained about one hundred inhabitants, is now a place of about five hundred people, and is entirely separate and distinct from the city of Everett; that the principal purpose of re^ spondent, in constructing the pipe line across appellant’s lands, and in diverting the water of said stream, is to supply the city of Everett with water ; that if only such ai quantity of water were diverted as would be necessary to¹ supply the town of Lowell, it would not materially damage appellants, but that the diversion to supply the city of Everett will materially damage them, and will render said stream valueless to them; that, at the time this action was commenced, respondent had not acquired the riparian rights below .appellants’ lands, and that it has no right to' divert the water's at any point along or above their lands; that the instrument between Woods and Hewitt is void and of no effect, for the reason that it is indefinite in its description of the right of way, as to its width and location, and as to the amount of water to be diverted; that respondent seeks to perpetrate a fraud upon appellants, in that it is pretending to proceed by virtue of the original conveyance from Woods to Hewitt, which authorized the diversion of water for the use of the town of Lowell, whereas the principal purpose now is to divert water for the use of the city of Everett; that respondent has never acquired any right to construct a pipe line at said place, or to divert the water by means thereof, for the purpose of supplying the city of Everett; that appellants and their grantors have been in possession of said land under color of title; and have been in the open, notorious, and exclusive possession thereof ever since the 1st day of January, 1892; that neither said Hewitt nor his assignee has ever, since said time, attempted to exercise possession or ownership over said lands or waters, and that, inasmuch as more than ten years have elapsed, the respondent is barred. The more material averments of the answer are denied by the reply.

Under issues, the principal features of which are stated above, the cause was tried by the court without a jury, and resulted in a decree permanently enjoining appellants from, interfering with respondent in the construction of the pipe line upon appellants’ lands, in so far as the same conforms in its route with the one located by Mr. Hewitt in 1891; and, as to that portion of the line now proposed to be constructed which departs from the original location, appellants are enjoined from interfering for a period of thirty days. The decree further provides that, in the event respondent shall, within said period of thirty days, commence condemnation proceedings for that portion of the right of way which departs from the original, then the injunction shall remain in force pending such proceedings, provided they shall be prosecuted with reasonable diligence. Erom that decree this appeal was taken.

Without enumerating or discussing in detail the various assignments of error set forth in the brief, we will endeavor to discuss by classification the material principles involved in the ease. It. is contended that the deed from Woods to Hewitt was not a grant, but was a mere license, terminable at will. The instrument contained all the formalities of a deed; it contained the usual phraseology of & deed, and was duly acknowledged and recorded as such. 3STo time limit was specified in it, and nothing was said therein as to its being revocable by Woods or his assigns. The instrument recites that the grantors “grant, bargain, sell, convey, and confirm unto the said party of the second part and to his heirs and assigns, a right of way . . . for a water pipe line over, upon and across the fallowing described lands . . . and also the right to divert the flow of water running through Woods creek . . . To have and to hold . . . unto said party of the second part and to his heirs and assigns forever.”

In McCue v. Bellingham Bay Water Co., 5 Wash. 156, 31 Pac. 461, this court held that, a deed for a right of way similar to this was a grant. In Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 38 Pac. 147, 26 L. R. A. 425, it was recognized that the right to the use of the water flowing over land is identified with the realty, and may be the subject of sale or lease, like the land itself. See, also, 1 Warvelle, Vendors (1st ed.), § 15, p. 19 et seq.; Gould, Waters (3d ed.), § 304. Thus such subject matter as that of the Woods deed, both as to the right of way and diversion of the Water, may be granted, as in the case of land itself. The form, execution, and subject matter of the deed being sufficiently comprehensive for a grant, it must have effected that result, unless other objections defeat such purpose.

It is claimed that the instrument is void for uncertainty, in that no time certain is fixed for the execution of the purpose of the grant. It was, however, competent for Woods to make such a conveyance without any time limitations. He could .convey an interest in the realty as absolutely as he could convey the whole of it. The right of way and the right to divert the water were a part of the realty itself. By the terms of the, deed these were' conveyed to the gnantee, his heirs and assigns forever, subject to certain specified reservations pertaining to the domestic nse of the water by the grantor. The absence of specific time limitations must be construed to mean that no- such were intended. _

It is next urged that the deed is void for uncertainty as to the location of the right of way. It is true, the exact boundaries are not described in the deed, except- as to the tracts of land over which the pipe line shall run. Such was true, also, in the case of McCue v. Bellingham Bay Water Co., supra. After the execution of the deed granting a roving right- of way, the water company in that case entered upon the land, selected a strip-, and took possession of it as the right of way. The court said:

“When it went upon the land described in the deed and cleared and prepared its right of way, its grant became fixed and certain . .

In the case at bar the- pleadings admit, and the evidence shows, that such a selection and occupation of a right of way strip took place- in 1891. Hot only was the route marked out and selected, but a ditch was dug upon the strip-, with the intention of using the fight of way for the purposes of the grant. Under the McCue case, the grant here therefore became fixed and certain as to location.

It is further contended that other uncertainties are fatal to the validity of the deed,- viz: (1) That it is uncertain as to the amount of water to be diverted. The grant however covers all the water of Woods creek, except what is expressly reserved for domestic use of the grantor, and also for his use in case of fire, it being required that in the latter event he shall be served through a three-inch pipe connected with the main pipe line. (2) That it is uncertain as to the amount of water Woods reserved. The reservation was for all that one family may need for domestic and household purposes to be used upon a certain forty-acre tract, and for such amount as the family may need in case of fire to the extent of the service capacity of a three-inch pipe. The amount reserved is therefore sufficiently certain. (3) That it is uncertain as to where Woods was to get the water, whether from the stream or pipe line. Ho specification was made for connecting with the pipe line, except by the threesinch fire main, which, it is manifest, was not to be used except in case of fire. It therefore follows with sufficient certainty that Woods was to get water for domestic purposes from the, bed of the stream upon the described tract of land where it was to be used. (4) That it was uncertain as to the width of the right of way. In such case the way shall be of such width only as shall be reasonably necessary and convenient for the purpose for which -it was created. “'When the right of way is not bounded in the grant, the law bounds it by the line of reasonable enjoyment.” Grafton v. Moir, 130 N. Y. 465, 29 N. E. 974, 27 Am. St. 533. We therefore think the deed was in no way void for uncertainty.

It is argued that the deed was invalid, for the reason that Hewitt did not acquire the lower riparian rights at the time he acquired his rights from Woods. It is not reasonable to suppose that all riparian rights could be acquired at the same moment. It cannot be doubted, however, that Hewitt did acquire from Woods the rights which were specified in the deed. It is true, lower proprietors may complain, if the waters shall be diverted without the acquisition of their rights. But that question in no way affects the transfer by Woods of the rights which theretofore attached to his land. It is those rights which are in controversy here. Having transferred certain rights of' his own, he would not, were he here, be in position to say that the transfer was ineffective because it may interfere with lower proprietors. Interference with the rights of lower proprietors is a question to be raised, by them, and not by Woods or by appellants as his successors in interest.

Another question argued is that of alleged fraud in procuring the deed from Woods. As set forth in our statement of the issues, the deed specified that the water was to be diverted for “water purposes at the town of Lowell.” It is contended that it now develops that the purpose was to furnish water to' the city of Everett, and that such fact was fraudulently concealed from the grantor. It sufficiently appears, however, that the grantor was informed and understood that the grant was sought for the purpose of procuring water, and a right of way for its transfer, for use in the new city which the grantee and his associates proposed should be built in that vicinity. Witnesses testified at the trial that the village of Lowell contained about one hundred people; and was unincorporated at the time the deed was made; that a postoffice was located there, called by that name; that the election precinct was designated hy the same name, and that the general locality thereabout was commonly called “Lowell.” Other witnesses disputed this. The real name for the proposed city, it appears, was not actually determined until after the deed was made, but the grantor knew that it was to be built in the vicinity of Lowell, and the court found that it was then generally termed Lowell as that was the nearest postoffice. The record discloses that respondent intends to supply water to what is still called Lowell, and we therefore think that, under all the circumstances surrounding the execution of the deed, and from facts which appear to have been well known to the grantor, fraud was not shown.

We must then look to the scope of the grant as it appears from the deed. The grant was for all the waters of Woods creek except what was reserved as hereinbefore stated. While it specified that the diversion was for water purposes at the town of Lowell, yet it was not in terms restricted to that purpose The estate granted being all the water exclusive of the reservation, what then are the grantee’s rights in that estate, after he has applied so much thereof as is required to meet the purpose specifically mentioned in the grant? The granting instrument contains no words of prohibition against the use of the water for other purposes after the specified purpose has been served. In the absence of such prohibition,-the grantee is entitled to use the surplus water for other purposes.

“When the easement is of a certain quantity of water, the owner is not bound to use it in a particular manner, though the purpose for which it is used is mentioned in the grant. He may use the water in a different manner or at a different place, or increase the capacity of the machinery which is propelled by it, without affecting his right, if the quantity used is not increased and the change does not prejudice the rights of others. This rale applies both to reservations and grants. If the use of water is granted for a certain purpose, with a prohibition against certain other specified uses, the grantee may use it for any purpose not prohibited.” Gould, Waters (3d ed.), § 320.

See, also, Iszard v. May’s Landing Water Power Co., 31 N. J. Eq. 511; Mayor etc. of Baltimore v. Day, 89 Md. 551, 43 Atl. 798. It follows that, after the inhabitants of Lowell have been served, respondent has the right to divert the remaining water, not reserved, to the use of the city of Everett, and its inhabitants.

Appellants contend that the right of way was abandoned. Soon after the deed was made, and in the same year, the grantee selected a strip for right of way, and began the construction of a pipe line system. An outstanding lease, older than the right of way and Water right, was held by one Crook. The deed was'therefore subject to the lease, and the lease continued until 1896. An application by the lessee to enjoin the continuance of construction work, and the diversion of the water, was sustained by this court. Crook v. Hewitt, 4 Wash. 749, 31 Pac. 28. Nothing further could be done until after the lease expired in 1896. Meantime there was not an abandonment. The evidence shows that there was no such intention. Some of the constructed work was left in place, and material remained upon the ground. Occasional examination was made of a constructed dam, and debris was removed to prevent injury thereto. But it is insisted, further, that the failure to proceed promptly after the lease expired, together with the delay until 1902, amounted to abandonment. This court held, in McCue v. Water Co., supra,, that where no time is fixed for the occupation and use of a granted right of way, no mere non-user, for any length of time short of the period of the statute of limitations, will defeat the right of grantee to occupy and use it for the purposes of the grant. If the statute of limitations comprehends the running of time against a mere non-user, under a grant of this kind, it in any event did not begin to run until such time as the grantee might have peaceably occupied, which was after the lease expired in 1896. Active user was again .attempted about August 1, 1902, and this suit was brought within the same month. A period of six years only having expired, it follows that the limitation period fixed by our statutes for actions pertaining to the possession of lands had not expired.

Appellants urge that injunction is not the proper remedy for respondent; but we think otherwise. It is the successor in interest of all rights under the grant. Appellants have succeeded as riparian owners with notice of the existence of the grant. They deny respondent the privilege of entering upon the land for the purpose of diverting the water. It has already been held, in the case of the lessee, that he could enjoin the diversion because he held' a superior estate, and had a right to prevent, by injunction, the threatened interference with his enjoyment of it. How appellants are threatening to prevent respondent from enjoying its estate, and it would seem that it may adopt the same remedy as was sustained in the other case.

It will be remembered, from the statement of the case, that the court refused to grant the injunction as to that portion of the present proposed right of way which departs from the route selected and marked out in 1891; but held that it would restrain appellants as to the new part of the route for a period of thirty days, and would make the injunction permanent, if condemnation proceedings should be instituted by respondent within that time and should thereafter be prosecuted with reasonable diligence. The precedent for such a course was set by this court in New Whatcom v. Fairhaven Land Company, 24 Wash. 493, 64 Pac. 735, 54 L. R. A. 190, which was, also, a case involving the exigencies of a city water supply. We see no reason for not approving the same course here.

The judgment is affirmed.

Mount, C. J., Fullerton, and Dunbar, JJ., concur.

Rudkin, Root, and Crow, JJ., took no part.