McEwen v. Preece

88 P. 1031, 45 Wash. 612, 1907 Wash. LEXIS 524

• Court: Washington Supreme Court
• Decided: March 9, 1907
• Docket: No. 6554
• Status: Published

Opinion

Per Curiam.

During the year 1873 the plaintiff John H. McEwen constructed a ditch from a certain stream called Park Creek upon and across the lands now owned by the defendants, for the purpose of conducting water from the creek to irrigate and reclaim the lands now owned by McEwen and his coplaintiffs. With the exception of a slight change made in the year 1889, the ditch has been used and maintained continuously by the plaintiffs and their predecessor in interest, McEwen, from the date of the original construction up to the present time. This action was brought to enjoin the defendants from obstructing the ditch and interfering with the flow of water therein. The plaintiffs had judgment according to the prayer of their complaint, and the defendants appeal.

The questions involved are purely of fact. The court found among other things: “That the said John H. Mc-Ewen, and the other plaintiffs, since the acquiring of their interest in their lands, have been in the actual, open, peaceable, continuous and adverse possession of the ditch above described ever since the year 1873 up until the year 1889, and since the year 1889 until the present time have been in such possession of the ditch as constructed in 1889, and such possession has been held and maintained under a claim of right thereto.” This finding is amply sustained by the testimony and clearly shows a prescriptive right in the respondents.

The judgment of the court below is therefore affirmed.