Action Under RCW 90.03.040

In Mack v. Eldorado Water Dist., 56 Wn.2d 584, 354 P.2d 917 (1960), the appellants held two appropriative water rights.

They acquired a right of way for transporting water under the first right over the respondent's property by adverse user.

The system for conveying the water consisted of a small wooden dam and a two-inch pipeline.

After acquiring the second water right, the appellants went on respondent's land and constructed a new concrete dam upstream from the diversion point used by respondent for withdrawing water under water rights held by respondent.

Appellants then commenced an action under RCW 90.03.040 seeking to obtain the right to maintain the new dam and replace the two-inch pipe with a four-inch pipe.

The trial court entered findings of fact, including the fact that as the stream entered the appellants' land, its height was such that the water could easily be used by the appellants, and therefore there was no necessity for going upon the respondent's land which would give rise to a right for a decree of necessity. Mack, 56 Wn.2d at 586.

The Court upheld the trial court's determination based upon the comparative feasibility of taking the water from a point on the respondent's land or on appellants' land where the same stream passed through the property. Id. at 588. Thus, RCW 90.03.040 does not automatically guarantee an individual the right to condemn private property in order to utilize a state-permitted water right. to the contrary, this determination is left to the judgment of the trial court. Id. at 588.