State Ex Rel. Roseburg v. Mohar, 169 Wash. 368, 13 P.2d

454 (1932).

                    Statement of Case.           169 Wash.

      [No. 23636. Department One. August 22, 1932.]
THE STATE OF WASHINGTON, on the Relation of Hartvig
           Roseburg, Respondent, v. TONY MOHAR,

KNOWLEDGE OF PARTY. Notice of an injunction, supporting
contempt proceedings for its violation, is sufficiently
shown by allegations of the affidavit that defendant had
done acts in total disregard of the court's judgment and in
defiance of its order.

Comp. Stat., SS 7361, authorizing the state hydraulic engineer
to control all waters of the state for irrigation purposes,
including all disputes, does not withdraw from the superior
courts jurisdiction of all irrigation disputes, in view of the
provision of the first section that the state's power to
regulate and control the waters is "subject to existing

Const. Art. 4, SS 6, clothing the superior court with
original jurisdiction of all cases in equity or at law
involving the title or possession of real property, the
legislature could not, in the water code, vest in the state
hydraulic engineer, exclusive jurisdiction of all
irrigation disputes and contests over water rights, and
deprive the courts of jurisdiction to quiet title to

TITLE. The date of the filing of the mad of the definite
location of the Northern Pacific Railway and not the date of
filing the map of the general route, fixes the time when the
title passed from the government into private ownership, and
the lands were withdrawn from sale or entry.

Appeal from a judgment of the superior court for
Kittitas county, McGuire, J., entered October 5, 1931,
upon finding defendant guilty of contempt of court.

1 Reported in 13 P.2d 454.

                STATE EX REL. ROSEBURG v. MOHAR.     369
 Aug. 1932               Opinion Per STEINERT, J.

Snively & Bounds and Robert J. Willis, for appellant.

Short & Short, for respondent.


STEINERT, J. - This is an appeal from a judgment of
the superior court of Kittitas county which declared
the defendant, Tony Mohar, guilty of contempt of
court for his failure to obey a judgment made and entered
in the case of Roseburg et ux. v. Mohar et ux.,
No. 8074 of that court.

The controversy between the parties in cause No.
8074 involves the use of the waters of a certain spring
located on the west half of the west half of the
southeast quarter of section 3, township 19 north, range 15
east, W. M. In the complaint in that action, Roseburg
and wife based their claim to the use of the waters of
the spring on an appropriation by one John Surrell
in October, 1884.

It appears that Surrell had settled on a portion of
an adjoining section of land under a homestead entry,
and by means of a ditch, connected with the channel of
the stream flowing from the spring, had appropriated
all of its waters for irrigation and stock purposes. In
1918, Roseburg and wife became the owners, by mesne
conveyances, of the Surrell land and of the rise of the
waters appropriated by him. Their complaint sought
to enjoin Mohar and his wife from interfering with
their use of the water, and from interfering with them
in fencing the spring so as to protect it from pollution.

Tony Mohar filed an answer which was merely a
general denial. His wife, Annie Mohar, appearing for
herself and her minor children by a former husband,
filed a separate answer, setting forth that the lands on
which the spring was located were included within the
grant of land from the United States to the Northern

                    Opinion Per STEINERT, J.      169 Wash.

Pacific Railroad Company on July 2, 1864; that the
lands ceased to be public lands, as a result of which,
they contend, the water was not subject to
appropriation by Surrell; and that, through a contract of
purchase from the railroad company, followed by a deed,
they had become the owners of the land on which the
spring was located and the consequent right to the
exclusive use of its waters.

Issues were made up, and the cause was tried by the
court on March 3, 1930. Thereafter, on June 16, 1930,
the court filed its memorandum decision, which found
that the Roseburgs' right to the use of the waters from
the spring was paramount to that of the Mohars. On
August 27, 1930, judgment was entered, perpetually
enjoining the defendants in that action from
interfering, in any way, with the right of the Roseburgs to use
the waters of the spring, and from interfering with
the Roseburgs in fencing or piping the waters or in
protecting them from pollution. The judgment further
ordered and directed the Mohars to remove a
pipe-line which they had previously connected with
the spring.

On September 15, 1931, the relator began the present
contempt proceeding by filing an affidavit setting
up the judgment in cause No. 8074, and reciting that
the defendant, Tony Mohar, had refused to disconnect
his pipe-line, as ordered by the court; that relator
himself had thereupon disconnected it, but that Mohar
had immediately re-connected it; and that, as often as
relator disconnected the pipe-line, Mohar had re-connected
it again. The affidavit further alleged that the
acts of Mohar were in total disregard and defiance of
the court's order and judgment.

In response to an order to show cause, Mohar appeared
in the contempt proceeding and raised a series
of objections thereto. These we shall presently notice.

                STATE EX REL. ROSEBURG v. MOHAR.     371
 Aug. 1932               Opinion Per STEINERT, J.

The objections having been overruled, the court proceeded
with the hearing, and upon its conclusion
found against the defendant. On October 6, 1931, the
court made its findings of fact, conclusions of law and
decree adjudging defendant guilty of contempt and
imposing a fine of ten dollars and costs. The defendant
has appealed.

[1] The appellant first contends that his demurrer
to the affidavit supporting the order to show cause
should have been sustained, because it failed to allege
that he had been served with a copy of the injunctive
order or that he had knowledge thereof. It is not
necessary that a party charged with contempt for refusal
to obey an order of court be personally served
with a copy of the order, if it appears by the affidavit
that he had knowledge of its contents. The gist of the
offense is the commission of the violative act with
knowledge that such act has been enjoined by the
court, whether formal notice has been served or not.
State ex rel. Lindsley v. Grady,
114 Wash. 692, 195
Pac. 1049, 15 A. L. R. 383.

While the affidavit did not specifically state, in
verba, that the appellant had knowledge of the contents
of the order, it used language that is capable of
no other meaning. It charged him with doing the act
in total disregard of the court's judgment and in
defiance of its order. There was not merely a passive
noncompliance with it, but there was a positive defiance of
it. An act in defiance of an order necessarily imports
knowledge of it. As defined in Funk and Waghall's
New Standard Dictionary, "defiance" is "a
contemptuous opposition or disregard openly expressed in
words or actions." We conclude that the affidavit was

[2] The appellant next contends that the court did
not have jurisdiction to enter judgment in the original

                    Opinion Per STEINERT, J.      169 Wash.

cause; that it was therefore void, and, being void, had
no effect upon the appellant; and that, consequently,
appellant could not be held for contempt for refusal to
obey its dictates. This contention is based upon the
proposition that the legislature, by enacting what is
known as the "water code" (Rem. Comp. Stat., SSSS 7351
to 7402, inclusive), withdrew from the jurisdiction of
the superior court all matters affecting the adjudication
of water rights, except as therein provided.

The water code was enacted in 1917. It created an
administrative officer known as the state hydraulic
engineer, and imposed upon him the powers and duties
incident to the supervision of public waters within the
state, and required him to regulate and control the
diversion of such waters.

The act prescribes a procedure whereby, upon the
petition of anyone claiming the right to divert waters,
that officer is required to make an investigation and
prepare a statement of facts to be submitted to the
superior court. After the filing of such statement of
facts, a summons is issued, and upon the completion of
its service, the proceeding is referred to the state
hydraulic engineer for the purpose of taking testimony.
The state hydraulic engineer himself then files with
the clerk of the court a transcript of the testimony,
together with a full report by him thereon. The court
then proceeds as in case of reference of a suit in
equity, taking further evidence, if necessary, and
finally enters its decree fixing the rights of the parties.

In determining the extent of the power, authority
and jurisdiction of the state hydraulic engineer, the
following sections of the statute deserve consideration:

"The power of the state to regulate and control the
waters within the state shall be exercised as hereinafter
in this act provided. Subject to existing rights
all waters within the state belong to the public, and

                STATE EX REL. ROSEBURG v. MOHAR.     373
 Aug. 1932               Opinion Per STEINERT, J.

any right thereto, or to the use thereof shall be
hereafter acquired only by appropriation for a beneficial
use and in the manner provided and not otherwise;
and, as between appropriations, the first in time shall
be the first in right. Nothing contained in this act
shall be construed to lessen, enlarge, or modify the
existing rights of any riparian owner, or any existing
right acquired by appropriation, or otherwise. They
shall, however, be subject to condemnation as provided
in section 4 hereof, and the amount and priority
thereof may be determined by the procedure set out
in sections 14 to 26, inclusive, hereof." Chap. 117,
Laws of 1917, p. 447, SS 1 (Rem. Comp. Stat., SS 7351).

"Wherever it shall appear to the state hydraulic engineer
that any litigation, whether now pending or
hereafter brought, may adversely affect the rights of
the public in water, it shall be his duty to request the
attorney general to appear and protect the interests
of the state." Chap. 117, Laws of 1917, p. 452, SS 11
(Rem. Comp. Stat., SS 7361).

It is to be noted from SS 1, supra, that the act, passed
in 1917, makes the dominion of the state over waters
within its territory subject to existing rights, and
limits its application to those rights of appropriation
which are acquired in futuro. It specifically provides
that existing rights, acquired by appropriation, or
otherwise, shall not be lessened or modified by any
construction placed upon any of its provisions. It is
to be further noted from SS 11, supra, that the
legislature contemplated that there might be litigation, other
than as provided for in the act, relative to water
rights, and authorized and directed the state hydraulic
engineer to protect the interests of the state if he
conceived that the rights of the public were affected

These provisions are strongly persuasive of the
conclusion that the legislature fully recognized that
certain rights to the use of waters had already passed

                    Opinion Per STEINERT, J.      169 Wash.

into private ownership and were no longer subject to
state administration; and further, that disputes between
private litigants were of no concern to the state
unless the rights of the public were adversely affected.
We would have no difficulty in arriving at this conclusion
unqualifiedly were it not for certain expressions
used by this court in a decision rendered subsequent
to the adoption of the water code.

In West Side Irrigating Co. v. Chase, 115 Wash. 146,
196 Pac. 666, this court, in discussing the history,
purposes and operative effect of the act, expresses the
opinion that the water code authorizes the state hydraulic
engineer to control all waters of the state for
irrigation purposes, including those which had theretofore
been lawfully appropriated or acquired; and
that the procedure therein provided was broad enough
to include all disputes concerning such matters. It is
to be noted, however, that, in that case, the state
hydraulic engineer was merely enforcing a decree of the
court theretofore rendered which had already determined
the rights of the litigants before it. It did not
expressly hold that the court had been wholly divested,
by the act, of its former jurisdiction. That question
was not in the case.

It is also of interest to note that, in a subsequent
case, Eikenbary v. Calispel Light & Power Co., 132 Wash. 255,
231 Pac. 946, wherein the facts are quite
similar to those in the present case, the court did not
place the same construction upon the act as did the
court in the Chase case, supra. In the Eikenbary case,
the defendant corporation took the position that the
act of the state hydraulic engineer, in granting it
permission to divert, store and use the water, precluded
recovery by the plaintiff. The court did not refer at
all to the Chase case, supra, but summarily dismissed
the defendant's contention by quoting a portion of SS 1

                STATE EX REL. ROSEBURG v. MOHAR.     375
 Aug. 1932               Opinion Per STEINERT, J.

of the act, as set out above, thereby recognizing the
force and effect of pre-existing rights.

The case of State v. Lawrence, 165 Wash. 508, 6 P.2d
363, cites the Chase case, but does not throw any
light upon the question immediately before us.

The latest expression of this court, therefore, upon
the question with which we are concerned seems to
support the view that, as between private parties, the
enforcement of water rights existing at the time of
the adoption of the water code may be sought by a
direct action in court.

[3] Even if the legislature had attempted by the
terms of the water code to divest the courts of their
jurisdiction in such cases, we do not think it could
successfully do so. The constitution of this state has
clothed the superior court with original jurisdiction
in all cases in equity, in all cases at law which involve
the title or possession of real property, in such special
cases and proceedings as are not otherwise provided
for, and in all cases and proceedings in which jurisdiction
shall not already have been vested exclusively
in some other court. Const., Art. IV, SS 6. The
superior court has all the powers of the English chancery
court. State ex rel. Burrows v. Superior Court,
43 Wash. 225, 86 Pac. 632. The jurisdiction of equity
to entertain suits for quieting title to the use of waters
is well settled. The courts have plenary power to
settle such disputes, and their power may be invoked
to give redress in proper cases where there has not
been a previous adjudication, either by an administrative
board of the state or by a court having concurrent
jurisdiction. Farm Investment Co. v. Carpenter, 9
Wyo. 110, 61 Pac. 258, 87 Am. St. 918, 50 L. R. A. 747.
We therefore hold that the superior court had jurisdiction
of the original case before it.

                    Opinion Per STEINERT, J.      169 Wash.

[4] Appellant's final contention is that the court
did not have jurisdiction to enter judgment in cause
No. 8074 because the land upon which the spring is
located had passed into private ownership prior to the
time of the appropriation under which relator claims.

As has already been stated, the grant to the Northern
Pacific Railroad Company was by an act of Congress
dated July 2, 1864. On August 15, 1873, the railroad
company filed with the commissioner of the general
land office a map showing the general route of its
road. The line of definite location, however, was not
fixed until December 8, 1884, when an approved plat
was filed with the commissioner. The appellant contends
that the act of filing the plat of the general route,
with the commissioner's order thereon, withdrew the
lands from sale or entry from that date.

The case of Northern Pacific Railway Co. v. Nelson,
22 Wash. 521, 61 Pac. 703, is relied on. The case cited
does support appellant's contention, but,
unfortunately for him, that case was reversed on appeal to the
United States supreme court, where it was held that
the date of filing the map of definite location, and not
the date of filing the map of general route, marked
the time as of which rights to the property were to be
determined. Nelson v. Northern Pacific Railway Co.,
188 U. S. 108, 47 L. Ed. 506, 23 S. Ct. 302. We are, of
course, controlled by that decision.

In the present case, the appropriation was made in
October, 1884, two months prior to the filing of the
map of definite location. The contention of appellant
upon this point, therefore, can not be sustained.

The judgment is affirmed.