(dissenting) — In the light of-our former opinion, the questions involved on the present appeal are few and simple and words cannot obscure them. The defendant claims title to the four-acre tract referred to in these several opinions under a mortgage executed by A. H. Chambers and Robert Frost and their respective wives on the 10th day of February, 1892. This mortgage was confessedly subject to *381a certain water right theretofore granted out of the four-•acre tract, by the predecessors in interest of Chambers and Frost to the predecessors in interest of the plaintiffs. The plaintiffs contend that such water right was a column of water twenty inches deep, four feet and seven inches wide, and flowing at a velocity of feet per minute, while the defendant contends that the right was limited to a volume of water that might be drawn from a pond through a gate three feet wide and one foot deep. A water right answering both of these descriptions was reserved in the deed of the four-acre tract from Duncan B. Finch and wife to Chambers and Frost, executed on the date of the mortgage under which the defendant claims, and in prior deeds of the same tract. On the former appeal we held explicitly that the Chambers and Frost mortgage was subject to the greater water right now claimed by the plaintiffs, if as a matter of fact the predecessors in interest of the mortgagors had conveyed such greater water right to the predecessors in interest of the plaintiffs prior to the execution of the mortgage.
On the trial had after the cause was remanded, it was clearly proved that the Washington Water Pipe Company, one of the predecessors in interest of the defendant, conveyed the greater water right now claimed by the plaintiffs to W. F. Crosby, one of the predecessors in interest of the plaintiffs, long prior to the execution of the Chambers and Frost mortgage, and the court so found. It is manifest, therefore, that the mortgage under which the defendant claims did not cover or include the greater water right now claimed by the plaintiffs and awarded to them by the court below. Has the defendant acquired any other or greater rights than those covered by and included in the Chambers and Frost mortgage? The majority concede that it acquired no greater rights by the mortgage foreclosure, and this is manifestly true as neither the plaintiffs, nor those under whom they claim, were made parties to that action. But while the majority concede that the foreclosure judgment is not binding on the plaintiffs *382or their predecessors in interest because not parties thereto, jet they assert that a notice of lis pendens was filed and attempt to predicate some sort of an estoppel on that judgment. This is a novel argument. The rights of the plaintiffs to the greater water right have never been questioned in any judicial proceeding to which they or their predecessors in interest were parties, until the present action was instituted, and yet they are estopped by a judgment to which they are strangers in every sense of the word. I will dismiss this argument without further comment. Is the defendant a bona fide purchaser? We decided on the former appeal that it was not, using the following language:
“A party cannot rely on so much of a public record as is favorable to his contention, and close his eyes to the remainder. Assuming that the respondent examined the records before its purchase, it not only had notice of the mortgage and the Crosby water deed therein referred to, but also notice of all other instruments in the chain of title, including the deed from Finch and wife to Chambers and wife, particularly referred to in the mortgage itself. In other words, it had constructive notice of all the instruments and all the facts heretofore recited. These were ample to put it upon inquiry, and in the face of such records and such notice, the plea of bona fide purchaser cannot prevail.”
For the purpose of this dissent it is perhaps sufficient to say that that opinion, whether right or wrong, has become the law of this case; but, untrammeled by precedent, I could not reach a different conclusion. The very last deed in the defendant’s chain of title, executed on the same date as the Chambers and Frost mortgage, recites that it is: “Subject, nevertheless, to the grants of water power heretofore made by the said parties of the first part within the said described boundaries; that is to say, for the said flouring or grist mill of C. Crosby, heretofore described as ‘Crosby’s new mill,’ a column of water twenty inches deep, four feet seven inches wide, and running with a velocity of five hundred and twenty-two feet per minute, which water power was granted by deed *383of C. Crosby and wife to C. Crosby & Co. recorded in the office of the county auditor of Thurston county in deed records, vol. 5, p. 9.” It is true that no deed was of record at the page indicated, and that a deed recorded at a different page of the same volume conveyed the lesser water right, described in an entirely different manner from that already given. What was the duty of the defendant under such circumstances?. An error in the description of the water right reserved and theretofore conveyed was apparent. Had it a right to assume, without inquiry, that the particular description given of the water right reserved from the grant was erroneous and that a deed recorded at a different place from that indicated contained the correct description, or was it put upon inquiry? These questions would seem to admit of but one answer.
“It is a familiar principle that every person taking a deed is charged with notice of all recitals contained in the instruments making his chain of title. ‘The principle of equity is well-established that a purchaser of land is chargeable with notice, by implication, of every fact affecting the title which would be discovered by an examination of the deeds, or other muniments of title of . his vendor, and of every fact as to which the purchaser, with reasonable prudence or diligence, ought to become acquainted. If there is sufficient contained in any deed or record, which a prudent purchaser ought to examine, to induce an inquiry in the mind of an intelligent person, he is chargeable with knowledge or notice of the facts so contained.’” Devlin, Deeds (2d ed.), §' 1000.
“The true doctrine on this subject is, that where a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of some right or title in conflict with that he is about to purchase, he is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to haA7e been guilty of a degree of negligence equally fatal to his claim to be considered as a bona -fide purchaser.” Williamson v. Brown, 15 N. Y. 354, cited with approval in Sengfelder v. Hill, 21 Wash. 371, 58 Pac. 250.
Nor is the scope of the inquiry limited by the record as might be inferred from the majority opinion. Devlin, Deeds, *384§ 1000, et seq.; Sengfelder v. Hill, supra. The defendant not only had notice of the claim that the greater water right had been conveyed and reserved from the recitals in its deeds, but in addition, the foreclosure proceedings through which it claims title showed the exact nature and extent of that reservation. Equity rewards the vigilant, but the majority places a premium on negligence and ignorance. Say nothing and see nothing is the rule by which future purchasers are to be guided. Much is said in the majority opinion as to the manner in which the plaintiffs acquired the greater water right,' the amount they paid for it, and the conduct of certain parties connected with the mortgage foreclosure, but these questions are wholly foreign to the issues in this case, and I will not discuss them. ■ The plaintiffs established their legal right to the relief awarded to them in the court below as against any equity or claim of the defendant. I will add, in conclusion, that on the former appeal this court held that the plaintiffs were entitled to recover on a given state of facts, and those facts were established beyond controversy on the trial below. The trial court entered judgment in obedience to, and in strict compliance with, the mandate of this court, and now that judgment is reversed- A certain amount of conflict in judicial decisions is unavoidable, but a direct and irreconcilable conflict between two decisions in the same case is inexcusable and deplorable. The judgment should be affirmed.
Dunbar, J., concurs with Rudkin, J.