Brown v. Chase, 125 Wash. 542, 217 Pac. 23 (1923).

                     BROWN v. CHASE.                     543
 July 1923              Opinion Per HOLCOMB, J.

upon stipulated facts, reversing, upon appeal, an order
of the supervisor of hydraulics granting a permit to
appropriate water, over the protest of a riparian owner.
Reversed.

The Attorney General and Fred J. Cunningham,
Assistant, for appellant.

Hughes & Wallace, for respondents.

Darwin G. Tyree and H.L. Holgate, amici curiae.

 544    BROWN v. CHASE.
                Opinion Per HOLCOMB, J.           125 Wash.

Lake, under 430 of the water code (Laws of 1917, p.
461); Rem. Comp. Stat., SS 7381 [P.C. SS 7232], no
protest was filed with the supervisor except that of
respondents herein. The supervisor denied the protest
and granted the permit, subject to the rights of riparian
owners and prior appropriators to the use of the
waters of the river for beneficial purposes. Respondents
appealed from the order and determination of the
supervisor of hydraulics in granting the permit, to the
superior court, under the provisions of SS 11 of the
water code (Laws of 1917, p. 452); Rem. Comp. Stat.,
SS 7361 [P.C. SS 7213], claiming that their riparian
rights as owners of the land riparian to the stream had
been infringed upon, and praying that the permit be
cancelled and set aside.

The facts were stipulated. The lands of respondents
herein rise precipitously from the Wenatchee river,
and are non-irrigable, and useful for pasture only. If
the appropriation is made there is, and will be an
abundance of water at all times in the river flowing
through and past the lands of respondents for stock,
domestic and other possible beneficial purposes. The
supervisor of hydraulics based his order in granting
the permit on certain findings and conclusions as the
provisions of the water code require. Certain of these
findings and conclusions were excepted to by respondents
in presenting their case to the superior court on
appeal.

The learned trial judge made an exhaustive study of
the question from the decisions of this state, and wrote
the following conclusions:

"The right of riparian flow covers the normal flow
in flood stage and low water. Being an incident of
ownership inseparable from the soil, except by consent
of the owner or by condemnation, use cannot
create nor disuse destroy any more than failure to

                     BROWN v. CHASE.                     545
 July 1923              Opinion Per HOLCOMB, J.

improve or cultivate the land could destroy the fee in
the owner or subject it to rights of third persons
without the owner's consent, except as an adverse user
might so do."

The Greater Wenatchee Irrigation District, the
organization which made application for the permit to
appropriate the waters of the Wenatchee river, intervened
in the action, and is, in fact, the only real direct
party in interest. Counsel for the United States
Reclamation Service, being greatly interested in the
result of the action, since it affects a large number of
Federal projects involving many millions of dollars,
and several hundred thousand acres of land in the
state of Washington, were granted leave to, and filed
briefs as amici curiae.

The supervisor of hydraulics, the intervener, and
the United States Reclamation Service of the state of
Washington each claim that the trial court erred in its
conclusions above set out.

The questions, as contended by appellant and the
Attorney General as his counsel, are: first, whether a
riparian right as such, in this state, extends to surplus
waters; second, from the viewpoint of procedure,
whether respondents are aggrieved persons within the
meaning of SS 11 of the Water Code (Rem. Comp. Stat.,
SS 7361), authorizing an appeal to the superior court
from orders, decisions and determinations of the state
supervisor of hydraulics by "any person
feeling aggrieved, etc."

Respondents have filed no brief. The memorandum
opinion of the learned trial judge constitutes the only
argument in favor of respondents we have before us in'
this case.

Appellant and amici curiae and the intervener all
concede that there is no controversy as to the existence

18 - 125 WASH.

 546    BROWN v. CHASE.
                Opinion Per HOLCOMB, J.           125 Wash.

of riparian rights in this state, and contend that the
controversy only arises from the measure of these
rights. Appellant contends that a riparian right to the
use of water does not extend beyond that which may be
beneficially used, presently or prospectively, on and
in connection with the riparian land involved.

Early in the history of the state, this court held that
the principle of riparian rights should prevail in this
state. Benton v. Johncox, 17 Wash. 277, 49 Pac. 495,
61 Am. St. 912, 39 L.R.A. 107. We have adhered to
that doctrine as a primary doctrine from that time
down to the most recent decision of this court, in
State v. McBee, or In re Doan Creek, ante p. 14, 215
Pac. 343. But in Benton v. Johncox, supra, there was
but a single issue involved, and that was the conflicting
rights of riparian owners and appropriators from
a watercourse, and the right of the riparian owners
was held superior to that of the appropriators made
subsequently to the acquisition of title by the riparian
owners. It was subsequently held by the same personnel
of the court in Prescott Irr. Co. v. Flathers,
20 Wash. 454, 55 Pac. 635, that that was the only issue
involved, and decided in the Johncox case, supra, and
that there was no discussion in the case of the use of
surplus or overflow waters from the channel of the
stream. There was much discussion in the Johncox
case as to the propriety and justice of the doctrine of
riparian rights, and decisions were quoted in which it
was declared that, when a riparian right attaches it
cannot be subsequently invaded; and that,

"The riparian owner has the right to have the water
flow ut currere solebat, undiminished, except by
reasonable consumption by upper proprietors, and no
subsequent attempt to take the water only can override
the prior appropriation of' both land and water,"
(by riparian owners).

                     BROWN v. CHASE.                     547
 July 1923              Opinion Per HOLCOMB, J.

And it must be conceded that general expressions
have often been used by opinion writers in deciding
cases subsequent to the Johncox case, supra, to the
effect that the riparian owner is entitled to the
undiminished and unpolluted flow of the stream down to
him; but even the Johncox case, supra, recognizes the
right of prior appropriators to take water from the
stream for irrigation prior to the acquisition of
riparian lands by a riparian owner, thus taking water away
from the stream to non-riparian lands to be put to a
beneficial use, and the principle of riparian rights was
greatly modified by various decisions of the court; such
as Nesalhous v. Walker, 45 Wash. 621, 88 Pac. 1023,
that even riparian owners are not required to return
all the water diverted from the stream, but may put
the same to beneficial use for the purpose of irrigation.
In Nielson v. Sponer, 46 Wash. 14, 89 Pac. 155, 123
Am. St. 910, we denied the upper riparian owner the
right to absorb all of the waters of a spring arising on
his place to the detriment of a lower riparian owner,
notwithstanding the statute is designed to give the
owners of lands in which springs arise the prior use of
such waters, the court declaring:

"Under the common law, each riparian proprietor
had a right to ordinary use for domestic purposes of
water flowing in a defined stream past or through his
land. . . . Appellant had the right to make free
use of this water whether it came from a spring on his
land or otherwise, for the ordinary domestic purposes;
but we do not think that irrigation, at least when
conducted in the manner that this was, can constitute a
use which will justify an upper riparian owner in taking
all of the water to the destruction of the ordinary
domestic uses thereof by a riparian owner below, in
the absence of prior, legal appropriation."

In the same volume, in State ex rel. Kettle Falls
Power & Irr. Co. v. Superior Court, 46 Wash. 500, 90

 548    BROWN v. CHASE.
                               Opinion Per HOLCOMB, J.                               125 Wash.

Pac. 650, the court definitely fixed beneficial use as a
measure and limit of riparian rights, saying:

"If the relator is considered as a riparian proprietor
only, its rights must be limited to those of an ordinary
riparian owner, viz., to a necessary amount of water
for the irrigation of its own abutting lands."

His Honor seems to lay much stress upon the expressions
found in many of our cases to the effect that
a riparian owner is entitled to "the undiminished and
unpolluted flow of the stream to and past his land,"
and also the expression in some of our cases to the
effect that, since a riparian owner is entitled to "the
undiminished flow of the stream," any diversion of the
water of the stream by a non-riparian owner,
substantially lessening the quantity flowing to the land of
a lower riparian owner, would be a violation of the
right of such riparian owner, though his damage be
only nominal and prospective. Mally v. Weidensteiner,
88 Wash. 398, 153 Pac. 342; Bernot v. Morrison,
81 Wash. 538, 143 Pac. 104, Ann. Cas. 1916D 290; Colburn
v. Winchell, 97 Wash. 27, 165 Pac. 1078; Methow Cattle
Co. v. Williams, 64 Wash. 457, 117 Pac. 239; Hough v.
Taylor, 110 Wash. 361, 188 Pac. 458.

But we also held in an early case, Northport Brewing
Co. v. Perrot, 22 Wash. 243, 60 Pac. 403, that, before
a riparian owner could restrain another from
interfering with the free and unobstructed flow of the
water of a stream, appropriated by another, he must
show beneficial use of the water diverted by him from
the stream as a riparian owner. We have granted
relief by injunction to riparian owners where the supply
of water of the stream was limited, and there was
prospectively substantial damage to the riparian
estate. Rigney v. Tacoma L. & P. Co., 9 Wash. 576,
38 Pac. 147, 26 L.R.A. 425; Mally v. Weidensteiner,
supra.

                     BROWN v. CHASE.                     549
 July 1923              Opinion Per HOLCOMB, J.

All of our decisions upon the question involved will
not be cited here, because it would make this opinion
too long, and because none of them have ever passed
upon the exact question involved here; but in general,
it may be said that, while this court has recognized the
common law riparian rights, it has also modified and
enlarged that doctrine by engrafting upon it the
necessity of beneficial use by the riparian owner,
refusing relief where the riparian owner was not
substantially damaged, and granting relief where he was
either presently or prospectively so damaged. The
trial court in his memorandum decision, referring to
the section of the statute authorizing condemnation of
riparian rights, asked:

"If there is no more to a riparian right that mere
user, why enact that excess over the needs of the land
for riparian use may be acquired by condemnation?"

The statute of 1890, Rem. & Bal. Code, SS 6382,
authorized the condemnation of riparian rights to the use
of water for any and all purposes except the right to
the use of the amount of water being used or needed
for irrigation. In State ex rel. Liberty Lake Irr. Co.
v. Superior Court, 47 Wash. 310, 91 Pac. 968, we held
that the meaning of the statute with reference to the
water necessary to irrigate the land of a littoral or
riparian owner, means the land which he then had
under irrigation and also that which he intended to
and would place under irrigation within a reasonable
time. We also held that it was not to the interest of
the state that the water of a non-navigable stream
should be idle or going to waste because one of its
citizens, having a preference right to its use, unjustifiably
neglects to avail himself thereof while others
stand ready and willing, if permitted, to apply it to
the irrigation of their arid lands. On the other hand,

 550    BROWN v. CHASE.
                Opinion Per HOLCOMB, J.           125 Wash.

the preference accorded an abutting owner should not
be limited to his immediate, present use of the water.
We said that it comports with the general policy of
the state to hold that this statute contemplated the use
by the abutting owner of the water necessary for his
present needs, and for those that accrue as he, in good
faith, proceeds with reasonable dispatch to construct
the improvements for applying the water to his adjacent
arid lands.

To the same effect see, In re Doan Creek, ante p. 14,
215 Pac. 343. The provisions of the water code
(Rem. Comp. Stat., SS 7354) [P.C. SS 7206], excepts
only the amount of water reasonably necessary to irrigate
economically the land then under irrigation by a
riparian owner. The statute therefore prevents
condemnation of water used in actual irrigation by a
riparian owner, but allows condemnation of water to
which the riparian owner would have a right as such,
but which he is not using, and does not intend to use
within a reasonable time.

The application of the principle of riparian rights in
water is constantly undergoing modifications, even as
a common law declaration.

Wiel on Water Rights in Western States (3rd ed.),
states that the weight of authority is opposed to the
right of appropriation of water for use on non-riparian
land where private riparian lands are involved, although
admitting the existence of many decisions contrary
thereto in the western states. Kinney on Irrigation
and Water Rights (2d ed.), states that, the great
weight of authority sustains the right of non-riparian
diverters to appropriate the surplus waters of
nonnavigable streams. Beginning on page 1441 of that
volume, there is a long discussion of the growth of the
modified doctrine of riparian rights, showing that in

                     BROWN v. CHASE.                     551
 July 1923              Opinion Per HOLCOMB, J.

California, which applied the doctrine more strictly
than any other western state except Washington, and
some of the decisions of which state were extensively
quoted in the Johncox case in this state, has squarely
receded from the strict application of the undiminished
flow theory of the common law, and cites several cases
to that effect.

We find that in Vernon Irr. Co. v. City of Los
Angeles, 106 Cal. 237, 39 Pac. 762, that court held
that, where lands of a riparian owner are not injured
by the diversion of water above, or where if the
diversion were enjoined, such water would not, owing to
ditches built by him, flow by the lands in its natural
channel, that diversion will not be enjoined. It was
further held in that case that, a riparian owner is
entitled to the continuous flow of the water with a
usufructuary right therein, provided he returns it to the
stream above his lower boundary; but has a right to
completely appropriate only a part of it.

Even Professor Pomeroy, who was a great stickler
for the doctrine of riparian rights, in his work on
riparian rights, SS, 158, referring to the condemnation
of water rights where there is an excess of water over
the needs of a riparian owner, states:

"Only the excess of the water remaining unconsumed
after their needs have been reasonably supplied should
be appropriated to the use of distant and non-riparian
owners. But in such a case there is no necessity for
any resort to the right of eminent domain, to the
condemnation of water, nor to the payment of
compensation. Communities of owners at a distance from the
larger streams should be entitled to reach and
appropriate this excess of their waters after the wants of
the riparian proprietors are reasonably satisfied,
without any condemnation or payment of compensation,
since such a use would not substantially affect any

 552    BROWN v. CHASE.
                Opinion Per HOLCOMB, J.           125 Wash.

rights held by the riparian proprietors on the
streams."

Even in the eastern states, where the necessities of
the population have never required the appropriation
of waters for irrigation of non-riparian lands, in order
to make the utmost beneficial use of the waters of a
stream, the courts have modified and extended the
doctrine of riparian rights very largely. That is shown
by the Massachusetts case of Stratton v. Mount Hermon
Boys' School, 216 Mass. 83, 103 N.E. 87. In that
case, Rugg, C.J., said:

"The common law rights and obligations of riparian
owners upon streams are not open to doubt. Although
the right to flowing water is incident to the
title to land, there is no right of property in such water
in the sense that it can be the subject of exclusive
appropriation and dominion. The only property interest
in it is usufructuary. The right of each riparian owner
is to have the natural flow of the stream come to
his land and to make a reasonable use of it as it flows
through his land, subject, however, to the like right of
each upper proprietor to make a reasonable and just
use of the water on its course through his land and
subject further to the obligation to lower proprietors
to permit the water to pass away from his estate
unaffected except by such consequences as follow from
reasonable and just use by him. . . . These principles,
however, are subject to the modification that the
diversion, if for a use reasonable in itself, must cause
actual, perceptible damage to the present or potential
enjoyment of the property of the lower riparian
proprietor before a cause of action arises in his favor.
This was settled after an elaborate discussion, by Chief
Justice Shaw in Elliott v. Fitchburg R., 10 Gush. 191."

To the same effect is our decision in Coulee Live
Stock Co. v. Pluvius Development Co., 75 Wash. 109,
134 Pac. 684. In the opinion in that case, we said:

"The beneficial use of these waters by appellant
could not be enjoined if such use disturbs merely a

                     BROWN v. CHASE.                     553
 July 1923              Opinion Per HOLCOMB, J.

naked legal right of respondent and subjects it to no
injury. The general purpose of a prohibitory injunction
is to restrain the doing of an act which will cause
irreparable injury when there is no adequate remedy
at law. Equity, so far as we know, has never taken
jurisdiction to restrain the beneficial use of water
required for the irrigation of arid land, when there is
no necessity for such restraint nor consequent injury
to others."

We think, therefore, that his Honor, the trial judge,
placed too much stress upon loose and general expressions
as to the riparian owner being entitled to the
undiminished flow of a non-navigable stream in this
state.

At any rate, in consonance with the general needs
and welfare of the state, especially in the arid and
semi-arid regions, and in harmony with the legislation
upon the matter, we are now prepared to declare, instead
of the mere loose and general expressions in
some of our opinions, that (1) waters of non-navigable
streams in excess of the amount which can be beneficially
used, either directly or prospectively, within a
reasonable time, on, or in connection with riparian
lands, are subject to appropriation for use on
nonriparian lands. (2) That where the supply of water
in the stream is limited, the presumption is that the
riparian lands require all of the waters of the stream,
and the burden is upon the non-riparian appropriator
of water to show that no riparian right will be injured
by his appropriation. (3) That where the supply of
water in the stream is more than ample for all possible
riparian uses, the presumption is that the diversion
by a non-riparian user will not injure any riparian
right, and the burden is upon the riparian owner who
claims that his riparian rights are being injured by
the diversion of such water, to prove substantial injury.

 554    BROWN v. CHASE.
                Opinion Per HOLCOMB, J.           125 Wash.

We are not prepared to hold that persons in the
situation of respondents, are not "aggrieved persons"
within the meaning of the statute, SS 11 of the water
code, supra, authorizing appeals to the superior court
from orders, decisions and determinations of the state
supervisor of hydraulics by any person feeling aggrieved.
An ingenious argument is made by appellant,
but it goes more to the question of fact than to
the question of law. here a person is in the situation
respondents were in, of being a riparian owner and
having an apparently existing right, it cannot be said
that he is not entitled to an appeal under the provisions
of the code made for the benefit of such a person.
Whether they are entitled to relief or not, after a
hearing, is another matter, but prima facie, they are
"aggrieved persons," within the statutes, and entitled
to take their matter before the court provided therefor,
to be determined.

The judgment of the trial court is reversed, with
instructions to grant the permit granted by the
supervisor of hydraulics, and to proceed thereunder
accordingly.

MAIN, C.J., TOLMAN, PARKER, BRIDGES, MACKINTOSH,
MITCHELL, and PEMBERTON, JJ., concur.

FULLERTON, J., concurs in the result.