LAWRENCE v. ADAMS, 180 Wn. 696 (1935)

39 P.2d 1002

MARY LAWRENCE et al., Respondents, v. FRED D. ADAMS et al., Appellants.

No. 25359. Department Two.The Supreme Court of Washington.
January 18, 1935.

Appeal from a judgment of the superior court for Kittitas county, Jeffers, J., entered April 18, 1934, in favor of the plaintiffs, in an action for injunctive relief, tried to the court. Affirmed.

F.A. Kern, for appellants.

Stephen E. Chaffee, for respondents.

STEINERT, J.

This is an action to enjoin the further diversion of waters from a non-navigable stream, and for damages for injuries already sustained. The court entered a decree permanently enjoining the diversion and awarding nominal damages. The defendants have appealed.

The pleadings are substantially the same as, and almost identical with, those in Haberman v. Sander, 166 Wn. 453, 7 P.2d 563, and Lawrence v. Sander, 166 Wn. 703, 7 P.2d 567, particularly those in the latter case. The lands involved in the Lawrence case, just cited, are exactly the same lands as those involved here. In both the Haberman and Lawrence cases, the litigation arose over a diversion of water from Wilson creek, while in this case the diversion was of water from Nanum creek. The two creeks come together a short distance below the canyons from which they respectively emerge, and thereafter flow as one for a distance of approximately a mile and a half. They then separate, Wilson creek with its branches flowing over the westerly portions of respondents’ land, and Nanum creek flowing over the easterly portion of their land.

The evidence in the case respecting the diversion of the water and its effect upon respondents’ land is of the same kind and nature as that in the Lawrence case, supra. After hearing the witnesses and inspecting the premises, the trial court found, as shown in its memorandum opinion, that respondents had been materially damaged by the diversion of the water. The evidence does not, in our opinion, preponderate against the court’s finding. The facts having

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been established, the court entered a decree similar to that in the Lawrence case.

No new question or different principle of law is presented here, and nothing is shown to take the case out of the controlling effect of the Haberman and Lawrence cases. Upon the authority of those cases, therefore, the decree herein is affirmed.

BEALS, HOLCOMB, and BLAKE, JJ., concur.