
    [No. 16941.
    Department Two.
    April 10, 1922.]
    Robert Ortel et al., Respondents, v. J. E. Stone et al., Appellants.
      
    
    Navigable Waters (1) — Lakes—What Constitutes. A small lake covering forty acres, from ten to fifty feet deep at any point fifty feet from the shore, is a navigable lake, although it has never been used for navigation.
    Waters and Water Courses (1) — Appropriation. The water between high and low water mark in a navigable lake is subject to appropriation for irrigation.
    Same (10-13) — Appropriation—-Priorities—Quantity. The measure of the rights of a prior appropriator who claimed all the waters of a navigable lake for irrigation is the amount of water actually taken and put to a beneficial use, and the same cannot be increased by subsequent needs, as against a subsequent appropriator.
    Same (10, 15) — Appropriation—Privity—Changes. A subsequent appropriator of surplus waters in a lake has the right to add and store waters in the lake for his use, subject to prior rights, and under supervision of the hydraulic engineer under Rem. Comp. Stat., § 7396.
    Appeal from a judgment of the superior court for Okanogan county, Neal, J., entered February 8, 1921, in favor of the plaintiffs, in an action to enjoin the use of the waters of a lake for irrigation purposes.
    Modified.
    
      W. C. Gresham, for appellants.
    P. D. Smith, for respondents.
    
      
       Reported in 205 Pac. 1055.
    
   Hovey, J.

— This action involves the right to the use of the waters of Davis Lake, in Okanogan county, Washington. The main lake has an extreme length of three-fourths of a mile, and an average width of about one-eighth of a mile, and is about forty acres in area. At its ordinary stage it is forty or fifty feet deep in its deepest place, and its shallowest portion at any point fifty feet from the hank is about ten feet deep. It has no visible outlet. Lying to its north is a shallow arm which dries up at low stage of water. The supply of water for this lake is chiefly from spring freshets and from Bear Creek, which has for its tributary Bowen Creek. Whether these creeks naturally flow into the lake is not made clear from the testimony. Respondents own a considerable body of farming land which is not riparian to the lake, and have under irrigation about sixty-five acres of land, cultivation of which was commenced some seventeen years prior to the trial. The first water used by respondents was taken directly from Bear Creek, and measurements made by a civil engineer in September, 1919, showed them to be receiving from this stream directly, sixty-two hundredths of a cubic foot per second of time, but respondents assert that they have title to only one-half of the flow of Bear Creek.

In June, 1903, respondent Robert Ortel and H. E. Seneff and John M. McCrea posted and filed a notice of appropriation of fifteen cubic feet per second of time of the waters of Bowen Creek, and in which notice they claimed the right to store said quantity of water in Davis Lake, “with the right to occupy and use said Davis Lake and the whole thereof for the purposes of said storage.” The testimony shows that McCrea and Seneff had previously done some work towards securing water directly from Davis Lake, and on June 24, 1903, filed a notice in the office of the auditor in which they claimed one million cubic feet of the waters of the lake for the irrigation of their lands, and thereafter the three men made a cut in the bank of the lake through which they diverted water and conveyed the same to their lands; but McCrea and Seneff used the water for only one season, and, in the year 1911 Seneff conveyed his rights in the waters of the lake and the creeks to the respondent, and a man whom respondent claims was the successor in interest of McOrea made a like conveyance to the respondent. Respondent has been the only user of the water through the cut except for the period mentioned. During the non-irrigating months, respondent causes the waters of Bear and Bowen Creeks to empty into the lake to provide storage for the irrigating season. Respondent has a low dam which keeps the water of the main lake from wasting in the shallow arm during low stages of water.

Appellants own lands bordering upon the lake, upon which they have about seventeen acres of orchard and about fourteen acres of alfalfa. The trees have grown without irrigation, but have now reached the bearing-stage where they require irrigation to properly produce fruit. Appellants are undertaking to irrigate their land by pumping from the lake. They first used water from this source during the year 1918, and continued such use in the year 1919, putting into the lake that year water from another source, when the respondents brought this action to enjoin the appellants, claiming that the water which appellants take would so lower the level of the lake that the water would not flow through the intake of respondents’ ditch.

The first question to be determined is the character of the lake. Each party contends that the other has shifted his position in this court from that maintained in the lower court.

What the parties call the lake does not fix its character, but the testimony as to the facts will govern. It is not shown that this lake has ever been used for purposes of navigation, but it is plainly of a size and character which would make it suitable for navigation under our decision in Kalez v. Spokane Valley Land etc. Co., 42 Wash. 43, 84 Pac. 395. Appellants cite Neterer v. State, 98 Wash. 635, 168 Pac. 170, hnt this was a case of a shallow lake clearly unsuitable for navigation.

The lake being navigable, the water between high and low water mark is subject to appropriation. Kalez v. Spokane Valley Land etc. Co., supra. We think the trial court was right in decreeing to respondents the prior right to take water from Davis Lake and to use the same for storage purposes, hut we think that the decree goes too far. It contains the following:

“Now, therefore, it is hereby ordered, adjudged and decreed thát the plaintiffs, Robert Ortel and Mary Ortel, his wife, are the owners by prior appropriation of all the waters of that certain natural lake in Okanogan county, Washington, known as Davis Lake, for stock, irrigation and domestic purposes, and it is further ordered, adjudged and decreed that the plaintiffs are the owners and in possession of the first and prior right to store waters in said Davis Lake from Bear Creek in said Okanogan county up to the ordinary high water mark of said lake.
“And it is further ordered, adjudged and decreed that the defendants nor either of them have any right, title, interest or possession as against these plaintiffs in or to any part or portion of the waters of said lake or the right of storage therein below the ordinary high water mark of said lake.”

Respondents did not obtain the absolute ownership of" this entire lake by taking a small quantity of the contents thereof or by storing additional water therein. The measure of their rights by appropriation is the amount of water which they have actually taken and put to a beneficial use. The testimony on this point is not very satisfactory, some witnesses claiming an inch and a half per acre is needed, while others testified that one inch is enough. Respondents express an intention to increase the area of their cultivation, but considering the length of time that they have been upon their land, they should, as against a subsequent appropriator, be limited to water for the land which they now.have under cultivation. For this they have at least thirty-one hundredths of a cubic foot at low stage from Bear Creek, and a measurement made by the same engineer at the same time that Bear Creek was measured showed that the respondents were receiving at the lake sixty-six hundredths of a cubic foot per second of time, and an allowance of one cubic foot per second of time from the waters of the lake would be liberal under the testimony in this case.

The question of the rights of storage cannot be definitely fixed under the testimony in this case, but, the testimony does show that the level of the lake is lowered and raised from two to six feet, furnishing a supply much greater than could be utilized by the use which respondents have heretofore made of the water. Appellants should be permitted to store water in the lake also, and to take from the same what they put in, after proper allowance for evaporation and seepage, and to take from the lake such portion of any surplus water therein as they need, subject to the condition that there must at all times be • reserved a sufficient supply to insure the delivery to respondents of one cubic foot per second of time throughout the irrigation period by the appliances now in use when kept in good working order; and in case either party is dissatisfied with the conditions, the hydraulic engineer should be called upon to determine the proper method of operation under the provisions of § 4, p. 144, of the Laws of 1919. [Rem. Comp. Stat., § 7396.]

It is directed that the decree be modified as herein indicated.

Parker, C. J., Main, Holcomb, and Mackintosh, JJ., concur.  