Wendler v. Woodard

Citations

• 93 Wash. 684
• 161 P. 1043
• 1916 Wash. LEXIS 1267

Syllabus

<p>Executors and Administrators — Actions—Real Estate — Right to Sue — Quieting Title. Tbe administrator may sue to quiet title to water for irrigating the lands of the estate and for injunctive relief, notwithstanding Rem. Code, §§ 1341-1366 vest title in the heirs immediately upon the death of the ancestor; since the administrator has the right of possession.</p> <p>Waters and Water Courses — Irrigation — Leased Lands — Actions — Landlord and Tenant. In an action to enjoin interference with water rights for irrigation, it is immaterial that the lands were under lease, since either the owner or tenant could enjoin interference with possessory rights.</p> <p>Same — Irrigation—Prescriptive Rights — Abandonment. Whether an irrigation ditch was abandoned by changes made with permission is a question of fact and intention.</p> <p>Same — Prescriptive Rights — -Right of Way- — Adverse Use — Claim: of Right — Presumption. Continuous, actual and open possession of water flowing in a ditch across railroad lands, for the requisite statutory period, is presumed to be under a claim of right, so as to ripen into title to the right of way by prescription, although there may have been immaterial changes in the use of the easement.</p> <p>Same — Appropriation—Public Lands • — • Evidence — Sufficiency. That land within the public domain was vacant, unimproved and unoccupied, at the time of the appropriation of water from a stream, is some evidence that it was unappropriated government land, within 7 Fed. Stat. Ann. 1091, confirming the title to the water upon public lands actually appropriated and put to a beneficial use; and is sufficient where there was no controverting evidence or inference.</p> <p>Same — Actions—Decree—Equity. Where plaintiff, in his pleadings, only claimed 200 cubic inches of water per second of time, out of a flow of 1,500 cubic inches flowing in a ditch, defendant, under a denial of the right to the water and easement, brings himself within the domain of equi