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Rights to Store Water Cannot Be Acquired by Condemnation.
Under the riparian doctrine it will be impossible to store the flood waters of our streams for us upon non-riparian lands unless the bank owners are bought off at their own prices. Under our statute and the rulings of our courts, the privilege of storing flood waters to be used on other than riparian lands cannot be acquired by condemnation, because the statute expressly says that the right to condemn riparian rights “Is not intended in any manner to allow water to be taken from any person, that is used by said person himself for irrigation, or that is needed for that purpose by any such person"; and in the cases cited the courts have said "that the flood waters were being used by the riparian owners.” In Still vs. Palouse Irrigation & Power Co., 64 Wash. 606, the court says: “In this case the respondents do make use of the high waters, and the greatest use and benefit to their land comes from such use.” This leaves the riparian owner to sell his flood water rights, or not, as he likes, and at any price he may see fit to ask or accept. Under such conditions, men of ordinary business sagacity will not invest their money in water right projects. Under such a rule of law the rights of all water users, acquired by appropriation, and now put to a beneficial use, are open to attack by any riparian proprietor who may wish to hold up the water level in the stream so it may either flood or "sub" his land.
Investments of Appropriators in Jeopardy. Abstract from argument of defendant's attorney in the case of Lux vs. Haggin.
“The interests involved in this suit are of such magnitude, not only as between the parties themselves, but also as to thousands of others, and the result reached so disastrous to the defendants, so de structive to the vast and beneficial improvements made by them in good faith and in the belief that the same law as to those matters applied both to the state and government lands in California, so disastrous to the people of a large part of California, and so destructive of all those great interests which have grown up under the irrigation system based upon the doctrine of appropriation to beneficial uses, that we firmly believe your honors will wish, even if in the end you feel compelled to adhere to the views already expressed, to do so only after you have permitted argument to be exhausted upon the subject and have received all the light which the profession can give. No matter how onerous and pressing the duties which devolve upon your honors, there is, we submit, before you no question or business which can compare in public interest to the inquiry whether the decree shall stand which condemns to absolute barrenness the thousands of acres of land reclaimed from the desert by the vast expenditures of the defendants here and now a garden of productiveness and beauty, in obedience to the law of another country, based upon the customs, and arising under conditions the most diverse from ours; whether, in obedience to that law, a large part of this state, after a progress almost unparalleled and improvements made at incalculable cost of labor and treasure, is to be condemned to return to sterility and unproductiveness; whether, in obedience to that law, the wheel of progress is to be turned back and the present prosperity of thousands changed into ruin and poverty that a few men, who happen to own land on the banks below may enjoy the pleasure of seeing the stream flow as it was accustomed to flow. Your honors will not, we are sure, forget that this decree, if it is to stand, not only overthrows the progress of the past, but puts a perpetual bar upor the future progress and development."
If the rule laid down in Miller and Lux vs. Madera Canal Co. supra, and followed by our own Supreme Court in Still vs. Palous. Irrigation & Power Co., 64 Wash. 606, and in the case of Longmier vs. Yakima Highlands Irrigation Co. is the law in this state, then the extract from Mr. John Garber's argument (though gloomy) is entirely applicable to our conditions.
In 64 Wash. supra, the Court says: "A riparian owner, such as respondents are here shown to be, has a right to the natural flow of the waters in their natural and accustomed channels without diminution or alteration, subject only to such rights and use in every other riparian owner, a right that is as much included in the ownership of the land as the soil itself, and con no more be interfered with by the act of others. And, while the application of this dootrine has in some of the Western states sometimes been denied, on the theory that the rules of the common law respecting riparian owners were inapplicable to conditions and necessities of the people in the particular localities where the cause of action arose, it has since its first announcement here invariably been upheld in this state, excepting where it has been subjected to a priority of appropriation."
Citing Crook vs. Hewitt,4 Wash., 749; Rigney vs. Tacoma Light & Power Co., 9 Wash. 576; Benton vs. Johncox, 17 Wash. 277; New Whatcom vs. Fairhaven Land Co., 24 Wash. 493; Madison vs. Spokane Valley Land Co. 40 Wash. 414; McEvoy vs. Taylor, 56 Wash 357.
Considering the fact that the great bulk of the water now diverted and used for irrigation purposes in the state was acquired under appropriation statutes, and that millions of dollars have been invested in developing such water rights, and that millions more have been invested by substantial citizens whó) live under such projects, there would seem to be a legal and moral duty resting upon the state to remove the cloud from such titles, to define them, and to make them a matter of record.
Water Right Litigation.
common law of riparian rights is that of endless litigation and delay in the development of their natural resources.
In California, following the common law rule, millions of dollars have been spent in water litigation without settling the rights of any. body except those directly parties to the litigation. “Under existing conditions water rights in California cannot be settled until every claimant on each stream and stream system has sued or has been sued by every other claimant thereon.” (See Conservation Commissioner Report of California, 1912.) Washington in adopting the riparian doctrine, has placed every water title in the state in the same jeopardy as those in California.
All water rights in this state are open to attack in the courts, and can never be defined and made definite until each claimant of a water right has sued every other claimant on the stream or stream system, or has been sued by them. And even then there is now nothing but the bringing of another suit to prevent the newcomer from filing an appropriation and using the water of the person having the right to it under the decree.
It is readily seen that the cost of such a series of proceeding would be appalling, and even then, could arrive at no final results until our appropriation laws are amended and riparian rights are defined as to quantity and method of use.
Kinney, in section 1531, says: “Although a person may make a valid prior appropriation of water of a natural stream or other source of natural water supply, he may record his notice in accordance with the law; he may apply the water to some beneficial use or purpose for many years; he may lay claim to his rights adversely to all the world, and yet this is not deemed a sufficient determination of his rights, for the reason that there may be many others who have made like appropriations from the same source of supply, and whose claims are bound in time in some manner to conflict with the claims of the prior appropriator.
"Simply because a person lays claim to a certain right, although he does it by means of notice to all the world, and while it may put others on their guard, it is not proof of the validity of the claim.
"The title to a water right is not perfect in any claimant until there has been an adjudication or legal determination of the same and the title thereto adjudged to be in the claimant as against all the world.”
There never has been any method in this state, and there is no method now, by which the titles to the use of water can be quickly, inexpensively and finally determined.
It has been said in states that have adjudicated their water rights that the court decrees conferred no new rights, but embodied in the form of a permanent, binding decree the evidence of a pre existing right. Since many of the water rights of this state are based on use, and since the bulk of such holdings is in the hands of small holders and those least able to defend their rights, it is desirable that the evidence upon which such rights and priorities rest should be made a matter of record before the old settlers have passed away.
Since 1904 three water code commissions have been appointed by the governors of the state to report bills to the Legislature that would cure existing evils in our water law, and by making titles secure to thereby promote the development of the state. Concerning the adaptability of the bills reported by the several commissions, I quote the following:
Proposed Law Satisfactory. Kinney says that, in general, water laws, “such as are here proposed for this state, have given the greatest satisfaction, and there has been no attempt to repeal them in states where they have once been adopted. In operation they have been found so salutary and free from unnecessary expense as to command the tacit endorsement of all subsequent Legislatures.”
The bill proposed to the 1904 Legislature, and the ones following were prepared after a great deal of study and each of them has received the approval of some of our ablest jurists and law writers. Of the House Bill 284 of the twelfth Legislature in 1911, Mr. Kinney said: “We have made a careful examination of the proposed bill and believe that it is one of the best that could be adopted under the circumstances and conditions existing in the state." He further says: "As slow as the state of Washington has been in taking up the work of irrigation and the reclamation of its arid lands, the Legislature has been even slower in enacting sufficient laws for the control, appropriation and distribution of the water within its boundaries. The method of appropriation of the water within the state may be considered antiquated in these times of water or irrigation codes.”
Of Senate Bill 405, introduced into the last Legislature, Judoe Will R. King, formerly supreme court justice of Oregon and now chief counsel and commissioner of the United States Reclamation Service, in a recent letter said: “Your recent communication, inviting my views upon the proposed water code for your state (Senate Bill 405), is at hand. I have carefully examined this measure and must say that, while it is not just as I would have it in all respects, I believe its adoption would give your state the most efficient water code yet adopted anywhere. It is, in effect, very similar to the Oregon water code. It, however, has some decided improvements."
Results to Be Secured. Concerning the results to be secured by such an enactment Judge King in discussing the law of water conservation and use for Oregon, previous to the enactment of her water code, in part said: "A central office will be provided, where a complete and reliable record of all water rights as initiated, or of early rights as determined, can be found.”
“A letter addressed to this office will bring by return mail a definite statement as to the amount and priority of any recorded right, whether vested or only initiated. If a prospective investor desires to know the total amount of vested rights to water from a stream in order to ascertain the amount of surplus water, eventually this can be furnished without delay. And no right to the use of water from any public stream can thereafter become vested except upon compliance with law and complete record in the central office.”
“If surplus water is believed to exist in any stream, a definite method of procedure will be provided whereby a vested right to such water can be secured.
“Instead of posting a notice in the brush on the bank of a stream where no one can find it, as under the present law, the date of priority will relate back to the date of receipt of an application in the office. Any application which is in proper form, as prescribed by law, can be filed then as now. Notice of such application shall be given by publication in a local paper and a time set to hear and consider any objections by those who may be injured by such diversion.”
Actual construction will be commenced and prosecuted at the discretion of the hydraulic engineer. And if the terms of the permit are not complied with, the right will revert to the state. When the appropriation has been complied with, by the application of the water to a beneficial use, a certificate in evidence of the right shall be issued and be recorded in the office of the state hydraulic engineer and in the auditor's office in the county in which the right is to be exercised.
Vested rights will be defined and become a matter of record so that said rights may be abstracted as land titles are. This will make holders of water rights secure in such rights and open a feld for legitimate investments.