The Yakima herald. [volume] (North Yakima, W.T. [Wash.]) 1889-1914, 1895-08-22
AFTER FIVE LONG YEARS
The Celebrated Ahtanum Water Cases
Ended at Last. - T.
JUDGE SMITH AGAINST DEFENDANTS
A strong Decision In Favor Of she
s'Creek Settlers. Or Piainstffs.
Damages and Costs Against the
Defendants-i48 Litigants.

ever handed down In our superior court
will be tomorrow fled with County
Clerk Brown by Judge Sol Smith, Of
Goldendale; who, after five long years Of
intermittent takings Of testimony and
hearings Of complaints. interspersed with
trying delays caused by inability to Sc
cure the short hand reporters notes, on
Wednesday Of this week read the several
hundred pages Of closely written legal
cap which ends for the present the cele-
brated Ahtanum water cases.
The whole Ahtsnum valley 10 involved
in the suits, lao settlers being directly
interested. THE HERALD finds it impos-
sible to print the full decision. It would
require the facilities Of the New York
World to properly handle it. However,
the following conclusions Of law, II care
fully read by the Ahtanum settlers, will
be found to apply to each individual
case; and all parties to the suit may
readily determine from the conclusion
just how far their elaine have been al
lowed or rejected, as the case may be.
Judge Smith closed his long, but none
the less interesting decision, as follows
1.-THE court finds as conclusions Of law
that person purchasing land bordering
upon natural stream or body of water,
or through which a stream flows in its
natural channel, purchases as an incl
dent to the land right to the use of the
water. and to have said stream flow by
or through his land as it naturally and
of right was flowing at the time OF his
said purchase, subject only to the rea-
sonable use of the riparian proprietors
above and below him and that he can
not be deprived Of this right without his
consent; that such riparian proprietor
has right to the entire amount Of water
flowing in such stream when it flows
through his land, and to one-half of the
volume of water when he owns but one
bank of the stream, to use in any man.
ner that he chooses; but he must return
the water to its natural channel unadul-
terated and practically unfinished be-
fore it reaches the land Of the riparian
proprietor next below him.
When person purchases land from
the United States, bordering upon q
stream or body Of water or through
which such stream flows in its natural
channel or channels, he takes with the
land just such rights to the water flowing
in such streams or body Of water as the
government then at such time had, sub
ject only to the reasonable use OF the
riparian proprietors above and below him
on such stream or body of water; and
where a person with intent to acquire
title to public lands situated upon nat
ursl stream or body Of water, uses rea-
sonable diligence in perfecting title to
the land, his right to the use of the
water dates back, by relation, to the
time OF settlement; and during the time
intervening between the date of settle.
ment and the receipt OF title, he has the
same right to the use Of the water that
riparian proprietofs have; and when q
person desires to divert and appropriate
water from such a stream or body Of
water, when such stream below the point
of division flows through the private
lands of another or borders thereon, un-
der the act of congress of July 20, 1866,
and the act the territorial legislature Zap.
pIicable to Yakima county, of 1873, he
must not only comply with the pro-
visions OF those statutes, but must obtain
the consent. either expressed or implied,
to divert and appropriate such water
from such riparian proprietors-or such
diversions will be unlawful and tres
pass upon the rights Of such riparian
proprietors below the point of diversion
for which an injunction will lie and dam
ages be recoverable.
That the plaintiffs in this action are
entitled to an injunction forever restrain
ing the defendants and all ,intervenors
who, under the findings Of fact in this
action, have diverted water from the
Ahtanum river and its tributaries above
the riparian lands of the plaintiffs
to use upon lands remote there
from at q term subsequent to such
plaintiff obtaining title as expressed in
the finding OF facts in this action, and to
mandate requiring such persons to
forthwith remove from said river and ito
tributaries all distractions by him or
them placed therein for the purpose of aid
ing in such diversion; and to dam and Gil
up all canals and bitches by him or them
dug or constructed at their respective
places of diversion. as to effectually pre-.
vent any of the waters of said stream or
tributary to enter therein, and so as to
permit said stream and its tributaries to
flow as it was wont at the time OF such
diversion.
And the court further finds that the
plaintiffs are each entitled to recover
nominal damages only for such trespass
against each Of said defendants, which il
fixed at IS each, and to costs and dis
bursements of action"
The decision is clear victory for the
plaintiffs, or.fcreek" settlers, who were
represented by Whitson & Parker all
through the long battle. Messrs. II. 3.
Snively and Judge Reavis had some few
of the "creek" settlers claims. but most
of their clients were among the defend
ants. Mr.. Edward Whitson, to whom 6