SUPREME COURT CASES

Laws-info.com » Cases » Washington » Supreme Court of Washington » 1970 » 77 Wn.2d 658, In the Matter of the Determination of the Rights to the Use of the Waters of CHILIWIST CREEK M. G. WALKER, Appellant, v. BILES-COLEMAN LUMBER COMPANY et al., Defendants, THE STATE OF WA

77 Wn.2d 658, In the Matter of the Determination of the Rights to the Use of the Waters of CHILIWIST CREEK M. G. WALKER, Appellant, v. BILES-COLEMAN LUMBER COMPANY et al., Defendants, THE STATE OF WA

State: Washington

Court: Supreme Court

Docket No: 40002.EnBanc

Case Date: 02/26/1970

77 Wn.2d 658, In the Matter of the Determination of the Rights to the Use of the Waters of CHILIWIST CREEK M. G. WALKER, Appellant, v. BILES-COLEMAN LUMBER COMPANY et al., Defendants, THE STATE OF WASHINGTON, Respondent
[No. 40002. En Banc.      Supreme Court      February 26, 1970.]
In the Matter of the Determination of the Rights to the Use
           of the Waters of CHILIWIST CREEK.
M. G. WALKER, Appellant, v. BILES-COLEMAN LUMBER
      COMPANY et al., Defendants, THE STATE OF
           WASHINGTON, Respondent.*

Appeal from a judgment of the Superior Court for Okanogan County, No. 16323, Robert J. Murray, J., entered May 16, 1967. Affirmed.

Action to determine water rights. The Supervisor of Water Resources appeals from an adverse decision.

The Attorney General, Charles B. Roe, Jr. and Robert H. Lamp, Assistants, for appellant.

The Attorney General and Theodore O. Torve, Assistant, for respondent.

NEILL, J. -

The Supervisor of Water Resources appeals from a decree adjudicating the rights to the use of water of Chiliwist Creek. The supervisor is statutory referee. RCW 90.03.160. Chiliwist Creek is a small, nonnavigable tributary to the Okanogan River and lies entirely within Okanogan County.

Among the 14 claims filed in the proceedings, is the claim of the Department of Natural Resources of the state which claims riparian and appropriative rights for stock water for school lands lying within the drainage of one or more branches of the creek. The state's lands are best used for forestry and cattle grazing.

* Reported in 466 P.2d 513.

Feb. 1970] IN RE CHILIWIST CREEK 659

The trial court's decree granted the Department of Natural Resources' exception to the supervisor-referee's report and granted the state's claim.1 The state acquired certain of the school lands upon entry into the Union, while other lands were acquired as "lieu" or "indemnity" lands in 1925. The supervisor's assignment of error does not clearly and properly raise an issue as to the priority dates in the decree. Nor does the opening brief of the supervisor discuss this issue. Therefore we do not consider the matter. Fosbre v. State, 70 Wn.2d 578, 424 P.2d 901 (1967); ROA I-41(1).

The supervisor's appeal is based on his contention that the decree is in violation of In re Crab Creek & Moses Lake, 134 Wash. 7, 235 P. 37 (1925), wherein this court held that riparian rights do not attach to state trust land until the land has been transferred into private ownership. Thus the issue presented is identical to the issue in In re Stranger Creek, 77 Wn.2d 649, 466 P.2d 508 (1970), decided this date.

On the basis of In re Stranger Creek, supra, the decree of the trial court is affirmed.

HUNTER, C. J., FINLEY, WEAVER, ROSELLINI, HAMILTON, HALE, and MCGOVERN, JJ., concur.

May 8, 1970. Petition for rehearing denied.

1 The challenged portion of the decree reads:

"That the Department of Natural Resources, State of Washington, defendant herein, as owner of lands riparian to Chiliwist Creek is entitled, with a priority date as hereinafter set forth, to a continued right of flow in said stream in the amount of 0.025 cubic foot per second for stock water watering purposes for livestock utilizing for pasture the following described lands:

"A. Priority date-1889 [legal description omitted]

"B. Priority date-1925 [legal description omitted]"