Sander v. Wilson

Citations

• 34 Wash. 659
• 76 P. 280
• 1904 Wash. LEXIS 399

Syllabus

<p>Irrigation — Waters—Action to Enjoin Diversion — Pleading— Parties Defendant — When Unnecessary. In an action by a lower riparian owner on W creek to restrain tke wrongful diversion of tbe upper waters therefrom into D creek, which naturally received part of the flow from W creek, an answer setting up that many riparian owners on D creek other than the defendants had been using the waters naturally flowing in D creek, and asking that they be made parties, does not raise a defect of parties defendant, where there is nothing to prevent the court from passing on the rights of the parties before it, and where the answer does not allege that such parties were using the waters adversely to plaintiff.</p> <p>Same — Doctrine of Appropriation Confined to Public Lands —Pbiob Rights Not Affected by Act of 1873. The doctrine of the prior right to waters for irrigation by appropriation applies only to public lands, and the act of 1873, declaratory thereof, does not apply when the lands cease to be public, and has no application to riparian rights which had become fixed prior thereto.</p> <p>Same — Immaterial Issues — Priority of Appropriation by Pasties Disclaiming Adverse Interest. In an action to enjoin the diversion of waters from W creek into D creek, where the whole controversy is over the question of whether any such diversion has been made, the priority of appropriation of the parties using the waters naturally flowing into D creek, and who disclaim any right to the waters naturally flowing in W creek, is not material.</p> <p>Same — Decree Determining Amount of Water to Which Parties Abe Entitled — Definiteness. A decree determining that the plaintiffs were entitled to 1,300 inches of water in W creek, measured under a four-inch pressure, according to the custom of miners, and giving the defendants a right to move for a modification of the decree if circumstances warranted it, to obtain any surplus that might thereafter exist, is sufficiently definite and certain.</p>