186 WALLA WALLA v. DEMENT BROTHERS CO.
Opinion Per PARKER, J. 67 Wash.
[No. 9701. Department One. February 10, 1912.]
THE CITY OF WALLA WALLA, Respondent, v. DEMENT
BROTHERS COMPANY, Appellant. «1»
EMINENT DOMAIN - DAMAGES - EVIDENCE - ADMISSIBILITY. Upon
condemnation of twenty-two cubic feet of water to be taken from a
creek thirteen miles above defendant's mill site, evidence is
admissible to show that it would not result in a loss of that
much water at the point of defendant's property; inasmuch as the
ordinance to condemn the same did not show an intent to condemn
water all of which belonged to defendant.
JUDGMENT - BAR - RES JUDICATA - MATTERS DETERMINED. An
injunction against the diversion of water from a creek until
riparian rights are condemned and awarding damages for past
diversions, is not an adjudication that the taking of twenty-two
cubic feet of water thirteen miles above appellant's property
would amount to a loss of that much water at the point of
appellant's property.
APPEAL - REVIEW - VERDICT. An award in condemnation will not be
reversed on appeal as inadequate, where it is well within the
evidence of disinterested witnesses, and the trial court refused
to interfere after hearing and seeing the witnesses.
Appeal by defendant from a judgment of the superior
court for Walla Walla county, Brents, J., entered April 4,
1911, upon the verdict of a jury awarding damages in a
condemnation proceeding. Affirmed.
T.P. & C.C. Gose, for appellant.
Sharpstein & Sharpstein, John F. Watson and John W.
Brooks, for respondent.
PARKER, J. - This is an eminent domain proceeding,
prosecuted by the city of Walla Walla, for the purpose of
acquiring the right to take water from a stream, which will
result in damage to the riparian and water power rights of
the defendant, Dement Brothers Company. A trial before
the court and a jury for the purpose of determining the
amount of the defendant's damage resulted in a verdict
«1» Reported in 121 Pac. 63.
WALLA WALLA v. DEMENT BROTHERS CO. 187
Feb. 1912 Opinion Per PARKER, J.
assessing the same at $10,000. Judgment was rendered
accordingly, from which the defendant has appealed.
Appellant owns land situated near the corporate boundaries
of the city of Walla Walla, in connection with which it
has riparian rights in the water flowing in Mill creek.
Appellant also owns a mill situated upon this land, which is
operated by power obtalncd from the flow in Mill creek.
The city seeks to acquire the right to take and divert, of the
water of Mill creek, twenty-two cubic feet per second of
time, at a point some thirteen miles above appellant's
property, for the purpose of supplying the city and its
inhabitants with water through its water works. Some three
miles above appellant's property, the Yellowhawk creek has
its intake from Mill creek, at which point the waters of Mill
creek divide, forty per cent thereof flowing into and down
Yellowhawk creek and sixty per cent thereof flowing on down
Mill creek. It is conceded that the owners of riparian land
bordering upon each of these creeks below this point are
entitled to have the waters flow therein in this proportion.
Along these creeks, below the point of diversion of the
water taken by the city, there are numerous riparian landowners
having right to the use of the water flowing therein
for irrigation and other purposes, and a considerable
quantity of such water is so used by such riparian owners. It
does not appear that the riparian and power rights of
appellant in the water of Mill crcek are superior to that of these
riparian owners.
In order to intelligently discuss the contentions of counsel
for appellant, it is necessary that we have at the outset a
clear understanding of what the city is acquiring from
appellant. If the city is actually taking from the appellant
alone, the whole of the twenty-two cubic feet of water per
second, that is one proposition; but if, by the city's taking
the water from the creek some thirteen miles above
appellant's property, appellant does not lose twenty-two cubic
feet per second, to which it is entitled, that is quite another
188 WALLA WALLA v. DEMENT BROTHERS CO.
Opinion Per PARKER, J. 67 Wash.
proposition. Counsel for appellant seem to proceed upon the
assumption that the first proposition presents the correct
theory for measuring its damages; while counsel for the city
insist upon the right to prove that appellant will not lose
twenty-two cubic feet of water, to which it is entitled, by
such diversion; that is, that all of the water so taken and
diverted by the city is not water to which appellant has a legal
right, or water all of which would reach appellant's land in
any event if the city took none of it. This proceeding is
authorized by Ordinance No. 1,509, by the city, a copy of which
is attached to and made a part of its petition for condemnation,
wherein the rights sought to be acquired by the city
against appellant are specified as follows:
"The City of Walla Walla does ordain as follows:
"Section 1: That the use of the waters of Mill Creek to
the extent of twenty-two cubic feet per second to be taken,
diverted, and measured at the head works of the city water
system located on said creek about 15 miles easterly from this
city is a public necessity.
"Section 2: That all the right, title and interest of The
Dement Brothers Company, a corporation, as riparlan owners
of lands abutting on said Mill Creek, and such water-power-
rights as they may have in said stream, to the amount and
extent sufficient in section I of this ordinance, are hereby
ordered and directed to he condemned and the title thereto
acquired by the City of Walla Walla in the market provided by
law, and that the proper proceedings therefor be taken
forthwith."
The final judgment of condemnation and award of damages
defines the right acquired by the city as follows:
"It is considered, ordered and adjudged by the court that,
upon the verdict of the said jury, the plaintiff, the city of
Walla Walla, is hereby adjudged and determined to be
entitled, upon the payment to the defendant of the said sum of
ten thousand dollars so awarded by the verdict of said jury,
and the further sum of $95.45, the defendant's costs taxed
and allowed in this action, to take, divert and use water from
that certain stream known as Mill creek, in Walla Walla
county, state of Washington, to the extent of twenty-two
WALLA WALLA v. DEMENT BROTHERS CO. 189
Feb. 1912 Opinion Per PARKER, J.
(22) cubic feet per second of time; the said water to be so
taken, and diverted from said stream at a point thereon about
thirteen miles easterly from the city of Walla Walla, the said
city hereby condemning, appropriating and acquiring, upon
making such payments, all the right, title and interest of the
said defendant in and to the said quantity of water so to be
taken, measured and diverted at the place and in the manner
provided by ordinance No. 1509 of said city attached to the
amended complaint herein, as owner of lands and premises
riparian to said stream situate, lying and being in the county
of Walla Walla, state of Washington, particularly described
as follows, to wit:"
Then follows a description of appellant's land, which we have
already noticed is some thirteen miles below the point of the
city's diversion of the water.
It is first contended by counsel for appellant that the
learned trial court erred in admitting evidence tending to
show the amount of riparian land irrigated by the owners
thereof, other than appellant, from the waters of the creeks
below the city's point of diversion; and also erred in
admitting other evidence tending to show that the water taken by
the city would not all reach appellant's land even if left in the
creek by the city at the point of its diversion. It seems to
us that the admissibility of evidence of this nature depends
on whether or not the city is acquiring water all of which
belongs to appellant alone, as if being taken directly from
appellant at its property, or is only acquiring whatever right
appellant might have in the quantity of water taken at the
point of the city's diversion, without having admitted that
appellant had a right to any particular quantity of such
water at that point. A critical reading of the ordinance
above quoted, we think, will show that the city did not
necessarily intend to take water all of which belonged to
appellant, nor did it admit, by the manner in which it commenced
the condemnation proceedings, that it was taking water all
of which belonged to appellant. We think it clear that the
city was simply seeking to acquire appellant's interest in this
quantity of water at the point of its diversion, and purposely
190 WALLA WALLA v. DEMENT BROTHERS CO.
Opinion Per PARKER, J. 67 Wash.
left the amount of appellant's interest therein open to proof
to be made upon the trial. The city had a right to assume
this position. It was not bound to proceed upon the
assumption that all of the water it was taking belonged to
appellant. A party seeking to condemn property, as against
a defendant, is not bound to admit the nature or extent of the
title of the defendant in such property; but may at the trial
prove the nature and extent of such title or interest. It was
the interest which appellant had in that quantity of water at
the point of diversion, some thirteen miles above its property,
and not the interest it might have in that quantity of water
at its own property, which was at stake. If the taking of
twenty-two cubic feet of water per second at the point of
dlversion resulted in the loss of a less quantity to appellant at
their property, then its damage would be measured by the
quantity actually lost to it, and not by the entire quantity
the city was taking at its point of diversion. We think that
this and other evldcnce, tending to show the diminishing of
this water as it proceeded on its way to appellant's property
was admissible for the purpose of showing that the water
taken by the city was not all of it water which appellant was
entitled to have reach its property.
Some contention is made against the admission of evidence
of the nature we have just noticed upon the ground that it
was thereby sought to prove facts which had been adjudicated
against the city in a former suit prosecuted by appellant
against the city. For the purpose of showing such adjudication,
appellant offered in evidence a portion of the record in
that suit, which indicates that it was prosecuted by appellant
against the city to obtain an injunction against the city
preventing it from taking water from Mill creek at the point of
the city's diversion of the water, some thirteen miles above
appellant's property, and at a point near appellant's
property, and also to obtain damages from the city for loss of
water on account of the city taking the same at these points
previous to the termination of that suit. It appears by the
WALLA WALLA v. DEMENT BROTHERS CO. 191
Feb. 1912 Opinion Per PARKER, J.
portion of record so offered in evidence that the court awarded
to appellant damages against the city in that suit, for water
theretofore taken by the city from Mill creek at these points,
and also decided that the city should be enjoined from
continuing to take such water unless it commenced condemnation
proceedings to acquire such right within sixty days after
the entry of the decree in that case. We do not find in the
portion of that record offered in evidence in this case any
adjudication against the city which would preclude it from
proving in this case that the taking of a fixed quantity of water
at the point of its diversion some thirteen miles above
appellant's property would not result in the loss of that same
quantity of water to appellant at its property. It might
possibly be argued with some reason, from the portion of that
record here offered in evidence, that it was adjudicated in
that suit that appellant had some interest in the water which
it is taking, but clearly it is not shown thereby that the
taking of a given quantity of water at the point of the city's
diversion would result in a loss to appellant of an equal
quantity at its property. We think this evidence was properly
admitted and could not be excluded because of any former
adjudication upon the facts sought to be proved thereby.
It is strenuously argued that the verdict is so manifestly
inadequate in amount, in the light of the evidence, that
appellant is entitled to a new trial upon that ground. While
the evidence is in considerable conflict touching the amount
of damages resulting to appellant, the amount thereof
awarded by the jury is well within the testimony, especially
that of those witnesses who were apparently disinterested.
Clearly we would not be warranted in disturbing the verdict
upon this ground, since the learned trial court declined to do
so after seeing and hearing the witnesses testify. The argument
of counsel for appellant upon this qucstion seems to rest
largely upon the theory that it was entltled to compensation
for the loss of twenty-two cubic feet of water per second at
its property. There is ample evidence, if believed by the
192 STATE v. TOTTEN.
Syllabus. 67 Wash.
jury, to show that appellant will not lose that quantity of
water by the city's appropriation at the point of its diversion.
What we have said applies to some of the other contentions
not specifically mentioned by us. Other contentions are
without merit, and we think do not require discussion. The
entire record convinces us that appellant was awarded a fair
trial conducted without prejudicial error against it.
The judgment is affirmed.
MOUNT and MORRIS, JJ., concur.