I dissent. Peter Morrison, father of the respondents, who acquired title to their land in 1892 and lived there until after 1915, was involved in a lawsuit concerning this land (Denee v.Morrison, 95 Wash. 76, 163 P. 382), and, on July 15, 1914, he signed the affidavit referred to in the majority opinion. This affidavit should have been received in evidence. The rule is stated in 20 Am. Jur. 517, § 604, as follows:
"A declaration of a former owner in the nature of an admission against interest is, as to real estate at least, admissible against his successors in title to show the character of the possession of the declarant or the title under which he held, provided the matter is one which may be proved by parol evidence and the declarant possessed a proprietary interest at the time he made the statement."
The decision in this case depends upon whether water flowing from the south to the vicinity of the beginning of the main ditch on respondents' land, and thence down the main ditch to the outlet in the north, constitutes a watercourse.
In 4 Restatement of the Law of Torts 317, § 841, under the subject of watercourses, there is this statement:
"(1) The term `watercourse,' as used in the Restatement of this Subject, comprehends a stream of water and its channel, both of natural origin, where the stream flows constantly or recurrently on the surface of the earth in a reasonably definite channel.
"(2) The term `watercourse' also comprehends springs, lakes or marshes in which such a stream originates or through which it flows.
"Comment: . . .
"c. Constant or recurrent flow. Many streams have a constant flow. Some streams flow only periodically or occasionally, and do not exist in time of drought. When the other elements of a watercourse are present, the question whether a periodic or occasional flow constitutes a stream depends upon whether the flow is of such frequency, duration and volume as to make it practicable and desirable in that particular part of the country to classify it as a watercourse, at least for the particular purpose for which its use is being claimed. *Page 812 "Illustrations: . . .
"9. A stream originates in and flows out of a marsh into a definite channel. The marsh is the place where the watercourse begins and is, itself, a part of the watercourse. . . .
"A watercourse does not terminate when it flows into another watercourse. Each branch from its beginning and the stream into which it flows from the point of confluence are one watercourse. Thus there are as many watercourses as there are branches. A stream may flow for some distance underground, or it may flow through a lake or marsh. So long as the water continues to flow and eventually resumes its normal form as a stream in a reasonably definite channel its continuity is not broken for legal purposes."
Section 842, p. 325, states, in part:
"Comment: . . .
"d. Lakes as part of a watercourse. Lakes normally come into existence as a result of the forces of nature, and may or may not be a part of a watercourse. Lakes may be formed, however, by artificial obstruction of a stream or by the diversion of a stream into a dry depression. Such lakes, even though artificially created, are segments of a watercourse . . . and are within the definition stated in this Section."
Rigney v. Tacoma Light Water Co., 9 Wash. 576, 38 P. 147, was a case where two creeks flowed into "Smith's swamp or lake," where the waters were commingled; an outlet at the westerly end forming what was called Clover creek. The court stated:
"The evidence discloses that Smith's swamp covers an area of one hundred acres, or more, nearly all of which, in its natural state, was covered with water during the rainy season, but at other times of the year became comparatively dry, except around the margin, where the water always remained."
The court found that the entire water system constituted a watercourse and restrained interference with the water of the upper creeks, at the suit of the plaintiff, whose riparian rights on the outlet creek were interfered with.
In Hastie v. Jenkins, 53 Wash. 21, 101 P. 495, the court was concerned with a chain of lakes in Grand Coulee in *Page 813 Douglas county. We held that what was known as Outlet creek was the only means by which the lakes could divest themselves of water during the high water season and that it constituted a watercourse. Damages were awarded and an injunction granted against obstruction of Outlet creek.
In Ronkosky v. Tacoma, 71 Wash. 148, 128 P. 2, the city of Tacoma had constructed a fill and culvert across a natural watercourse. The city allowed the culvert to become somewhat clogged, and heavy rainfalls caused a flood, which damaged plaintiff's property situated along the stream above the fill. We stated:
"The respondent contends that these actions were properly dismissed under the `common enemy' doctrine of the common law as applied to surface water. It is urged that the decisions of this court, in Cass v. Dicks, 14 Wash. 75, 44 P. 113, 53 Am. St. 859; Harvey v. Northern Pac. R. Co., 63 Wash. 669,116 P. 464, and Wood v. Tacoma, 66 Wash. 266, 119 P. 859, are determinative of the issue; and that, as a matter of law, the city was under no obligation to furnish drainage for surface water. For two good reasons the doctrine announced in those decisions has no application to the facts here presented.
"(1) In the first place, when water, from whatever source, is collected into a natural stream or watercourse, where the drainage of the surrounding country has been accustomed immemorially to flow, it is no longer an outlaw or common enemy. Such a stream must be recognized as a permanent physical condition, with which no one may with impunity interfere to the detriment of another."
In Miller v. Eastern R. Lbr. Co., 84 Wash. 31,146 P. 171, we had a situation where flowing waters from a gulch moved onto plaintiff's land, spreading out over and across plaintiff's lowlands, by natural gravitation, and finding its way into a watercourse. We held this to constitute a watercourse, as distinct from surface waters.
The case of Peterson v. Arland, 79 Wash. 679, 141 P. 63, dealt with damage to land, on a stream, caused by a log jam. In this case, the bed of the river or stream had been changed. The damage was caused partly, by forcing the water back into the old channel. We stated, at p. 693: *Page 814
"Certain other instructions requested were based upon the theory that, if the old channel had ever been a natural water course, the respondents cannot recover damages from the defendants for their act in forcing the water back to such old channel. This is not the law. The accustomed course of a stream which a riparian owner has the right to insist shall not be disturbed is not to be found in historical research, but is that which is its natural and apparently permanent course at the time when the right is called in question. 2 Farnham, Waters Water Rights, § 489, p. 1636. There was ample evidence in this case that the old channel had been, for many years, obstructed and filled. It was that status which the respondents had the right to insist should not be disturbed by the appellants' negligent use of the river."
In Trigg v. Timmerman, 90 Wash. 678, 156 P. 846, we held that a swale, about five hundred feet wide, through which water percolated, constituted a watercourse and that the defendant was liable for obstructing the flow. This, also, was a case where the natural situation had been changed by the parties, and we held that this did not change its status as a watercourse in its changed condition.
The case of Lambert v. Alcorn, 144 Ill. 313, 33 N.E. 53, 21 L.R.A. 611, was cited, with approval, by this court in Trigg v.Timmerman, supra. There, the rule is stated as follows:
"The point that the proposed system of drainage is in fact an abandonment of the natural water-course, if one ever existed, is scarcely worthy of serious consideration. It assumes that a natural water-course, if used at all, must be used in its natural state, and is therefore incapable of improvement, either by being deepened or widened by artificial means, or by the construction along its course of a channel or drain beneath the surface, for the purpose of more effectually carrying off the surface water from the land. Or the assumption seems to be, that the construction of such improvements creates a substantively new water-course, in no way dependent upon the one provided by nature, and carrying with it none of the rights arising from the existence of the former. It is sufficient to say, that both common sense and the uniform decisions of this court are the other way. In the Herrington case it appeared in proof that an artificial ditch had been dug along the bed *Page 815 of the natural water-course, deepening and straightening it, and removing intervening obstructions out of the way, and it was not supposed that the original channel, and all rights appertaining to it were thereby abandoned. It remained and was treated as constituting the same watercourse it was before, and the defendant was held entitled to drain the surface water from his land into it in its improved condition."
There can be no question but that considerable surface water flowed into Saltese basin; however, the fact remains that there were two creeks which did flow into Saltese basin from the south, and that there was an outlet at the north which had been deepened a number of times.
The testimony of Millar Morrison and Harry Morrison, respondents, and the sons of Peter Morrison, shows that the dam was placed at the south end of the main ditch for the purpose of holding back the waters from Quinimosa and Mouser creeks, which flowed in from the south across appellants' land. Millar Morrison testified as follows:
"Q. And the purpose of the dam was to prevent the water from coming down into the Fourcorners and getting into the main ditch, is that correct? A. The purpose of the dam was to hold it back so we didn't have to take all their water in our place. Q. And the dam, during the high water season, does stop water from going into the main ditch, is that correct? A. Some."
This witness further testified:
"Well, our side of the story is that we don't want the water coming over these places and coming down our ditches. For the first thing, you have to work in them and they were allowing all the water to come in there, and then it makes it more expensive for us to operate the ditches, that is, to clean them out or work in them."
Respondent Harry Morrison testified that it was their intention to keep the dam permanently, and stated, on several occasions, that the purpose of the dam was to prevent the flow of water into and through the main ditch. For instance, he testified:
"Q. Just answer the question: You put the dam in for the purpose of stopping the water from coming into the *Page 816 main ditch; there is no question about that, is there? A. Sure, I didn't want the water in there. We had been ditching there."
I think the majority opinion is wrong in accepting as true testimony from which it is found that
". . . the intake, or beginning, of this ditch is on ground which is a little higher than the surrounding lake bed."
The dam was approximately twenty feet wide and ten or twelve inches above the level of the ground. It is inconceivable to me that this dam could accomplish what respondents stated that they put it in for, if the foundation of the dam was on land a little higher than the surrounding lake bed. I believe that Harry Morrison and Millar Morrison finally admitted the truth, which was that the dam was placed there to keep the waters from the south from flowing into the main ditch and to the north. It would have been impossible to have accomplished this if the dam was placed upon higher ground, for the reason that the water would have flowed around the ends of a twenty-foot dam. The evidence was that dams had been placed in the main ditch and other ditches, but it did not show that dams had been placed on top of the ground.
The majority opinion passed over the affidavit of Peter Morrison with the statement that his
". . . description of perpetual streams flowing through the bed of the lake in a ditch was hyperbolic, to say the least, and is without support in the evidence."
Peter Morrison was not living at the time of the trial; however, he was the person who knew more about this land than anyone else, and, at a time when his right to this property was in question, in the case of Denee v. Morrison, supra, he signed an affidavit and filed it in that cause, and, in addition, the answer which he verified in that case supports the affidavit. I do not believe we should disregard such an affidavit by saying, in effect, that the statements made by Peter Morrison were exaggerations, and, if we take his affidavit as speaking the truth, then Mouser and *Page 817 Quinimosa creeks, as they flowed into the Saltese basin and through the bed of the lake in a ditch, constituted a watercourse.
The judgment should be reversed.
MALLERY, C.J., concurs with ABEL, J.