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Opinion of the Court-MOUNT, J.
elapsed. Appended to said complaint, and made a part thereof, was an abstract of plaintiff's title. Defendant, in his answer, denied that plaintiff was the owner of the lands, or entitled to the possession thereof, or any part thereof, or had any right thereto; admitted the service of the notice and refusal to vacate, but made no reference to the abstract; and as an affirmative defense, among other things, alleged that the lands described were on August 1, 1893, public lands of the United States, subject to homestead entry, and that defendant, being a qualified homesteader under the laws of the United States, on said date entered said land as such homesteader, and ever since has occupied and resided thereon and cultivated the same, claiming the same as a homesteader thereof. Plaintiff thereupon filed his reply, denying the allegations of new matter set out in the answer. The cause came on regularly for trial before a jury on the issues thus made. The plaintiff, to sustain his case, offered in evidence an abstract of title to said premises, certified by the FidelitySecurity Abstract Company to be a full and complete abstract of all instruments in writing recorded or filed for record in the office of the county auditor of Pierce county, Washington. This abstract was by the court, over defendant's objection, admitted in evidence. Plaintiff then introduced a sheriff's deed in foreclosure, connecting plaintiff with the last grantee named in said abstract, and, after offering the notice named in the complaint, rested his case, whereupon defendant moved the court for a nonsuit against plaintiff for the reason that there was no legal evidence that plaintiff was the owner of the property described. This motion being denied, defendant declined to proceed further, and judgment was thereupon entered for plaintiff. The defendant appeals.
Opinion of the Court-MOUNT, J.
Subsequent to the entry of the judgment, other questions were raised and argued on this appeal, but it is not necessary to a determination of the case that these questions be now considered. It was manifestly error of the court to allow the abstract to be admitted in evidence to prove title in the plaintiff. There is no rule of law which permits a public record to be proved by the certificate of any other person than the officer having such record in his possession. See § 6046, Bal. Code. The fact that the statute requires an abstract of plaintiff's title to be embodied in the complaint, or appended thereto, does not change the rule in this regard. The defendant by his answer, had denied that plaintiff was the owner of the premises, and had set up facts which, if true, showed that he had a lawful claim to the possession of the premises. It was therefore incumbent upon plaintiff to prove by competent evidence that he was the owner.
Counsel for respondent argues that, because defendant did not deny the abstract of title, it was therefore admitted to be true. If this position is correct, it was not necessary to offer it in evidence. The abstract of title could do no more than show the line of plaintiff's title, and, when the fact that plaintiff was the owner was specifically denied, it was not an admission to fail to deny the abstract, or the paragraph which referred to the abstract as appended to the complaint. The denial that plaintiff was the owner or entitled to the possession necessarily denied the abstract, which simply showed the chain of title by which plaintiff claimed. By the twelfth paragraph in the answer of defendant it is admitted that a patent to the lands in question was issued by the United States to the Tacoma Land Company. This paragraph also alleged that this patent was and is null, void, and of no effect. Respondent now claims that the said answer,
taken as a whole, is one of confession and avoidance, and that therefore the burden of proof was upon defendant. We do not so read the answer. The effect of this paragraph is to deny plaintiff's title. The other parts of the answer stoutly deny that plaintiff has or ever had any title or right of possession. The gist of the pleadings is that by the complaint the title is in plaintiff. By the answer, the title is in the United States, and defendant is in lawful possession. It is therefore the duty of the plaintiff to prove his title by competent proof.
The cause will be reversed and remanded, with instructions to the lower court to grant a new trial. costs of this appeal in favor of appellant.
REAVIS, C. J., and DUNBAR, FULLERTON, ANDERS, WHITE, and HADLEY, JJ., concur.
[No. 3855. Decided December 3, 1901.]
DAVID LONGMIRE, Appellant, v. RICHARD SMITH et ux.,
The prior appropriator of water upon public lands for the purposes of irrigation has a right thereto superior to all other claims, whether founded upon appropriation or riparian ownership, and under the statute of Washington Territory (Laws 1873, p. 520) recognizing such right and regulating the use of water in Yakima county, which provides that any person having title or possessing right to any agricultural lands in such county "shall be entitled to the use and enjoyment of the waters of the streams or creeks in said county for the purpose of making said land available for agricultural purposes to the full extent of the soil thereof," such prior appropriator of waters in Yakima county holding a possessory right to a definite tract of agricultural land is entitled to water for the irrigation of the whole thereof as of the date of his original appropriation, when his use of the water for irrigation has been continuous and his extension of the area of cultivation has been made with reasonable diligence.
Opinion of the Court-REAVIS, C. J.
OF WATER REQUIRED INSUFFICIENCY OF
The fact that there is no clear and satisfactory proof, in an action for injunction against subsequent appropriators, showing the amount of water required by the prior appropriator thereof for irrigating arid lands for agricultural crops, would not deprive such appropriator of his full right to the waters to which he is entitled under his appropriation, but the matter can be properly remanded to the lower court in such a case for the purpose of adducing evidence upon which to base a decree for the quantity of water required.
Appeal from Superior Court, Yakima County.-Hon. JOHN B. DAVIDSON, Judge. Reversed.
Whitson & Parker and II. J. Snively, for appellant. Graves & Englehart, Jones & Guthrie, Bogle & Rigg and Snyder & Preble, for respondents.
The opinion of the court was delivered by
REAVIS, C. J.-In its principal aspects, this is a suit brought by the plaintiff to quiet the title to water appropriated by him for the irrigation of farm lands situated on the Wenas river, in Yakima county. With few exceptions, the defendants are riparian owners situated upon the river above the lands of plaintiff. The Wenas river, upon which nearly all the lands border, has its source in the Cascade mountains, and flows through the Wenas valley, which is from one to two and one-half miles wide, and about twenty miles long. The side lines of the valley from the source of the stream to its mouth are defined by ranges of hills of an altitude of several hundred feet. The valley slopes from each side of the stream, flowing through its center, and the water has considerable grade the entire way. The volume of water flowing in the stream varies from an ample supply in the spring and until about the middle of July of ordinary years, when it begins to sub
Opinion of the Court-REAVIS, C. J.
side, and is inadequate to supply sufficient quantity to irrigate all the farm lands of the valley. The complaint alleges plaintiff's ownership of 480 acres of riparian lands in a body, and appropriations of water for irrigation of such lands by himself and his predecessors in interest. Of the three several parcels comprising the entire premises, he deraigns his rights as follows: First, the W. of the N. W. of section 32, the N. E. of the N. E. of section 31, and the S. E. of the S. E. of section 30, all in township 15 N., range 18 E., W. M., from Augustin Cleman, who settled upon said premises. in the spring of 1865, and which parcel will be mentioned hereinafter as the "Cleman Tract"; second, the W. of the S. E., the N. E. of the S. E. 1, and the S. W. of the N. E. of section 30, township 15 N., range 18 E., W. M., from Lorenzo Perkins, who settled on said premises in 1871, and which is hereinafter designated as the "Perkins Tract"; third, the S. E. of the N. E. of section 30, the W. of the S. W. and the S. W. of the N. W. of section 29, township 15 N., range 18 E., W. M., from Anson White, who settled thereon about the spring of 1873, and which is hereinafter designated as the "White Tract." The complaint alleges that plaintiff and his predecessors in interest about. the dates alleged intended to appropriate sufficient water from the Wenas river to irrigate the several tracts described, and that thereafter, with due diligence, sufficient appropriations were made and used to irrigate such tracts, and that the use has been continuous from the respective dates of the appropriation until the commencement of this suit. He prays that his right to such appropriations be decreed, and that the defendants be enjoined from the disturbance or interruption of his full enjoyment of the