(dissenting)—I am unable to concur in the opinion of the majority. I think it wrong in its construction of the deed, the operative parts of which are recited in the opinion, but I am clear that it is wrong for another reason. The cause was tried upon an agreed stipulation as to the facts. This stipulation contains the following provisions:
“That plaintiff is the owner of and is maintaining and operating a water plant and water works, and by and with the same is furnishing and supplying said city of Raymond and the inhabitants thereof with water for domestic uses and for municipal uses and purposes, and the point on the south fork of the Willa-pa river where the plaintiff is taking water from said river for such purposes is in the northeast quarter of the southwest quarter of section 31, township 14 north, range 8, west W. M., and that the city of Raymond and the inhabitants thereof depend entirely upon the waters of the south fork of the Willapa river so taken out of the south fork of the Willapa river for domestic use and for municipal uses and purposes. That the said water supply is inadequate to meet the requirements *284and necessities of said city and the inhabitants thereof, and that said city of Raymond and the inhabitants thereof depend upon the plaintiff’s water plant for a supply of water for domestic uses and municipal uses and purposes.
‘ ‘ That, in order to furnish and supply an adequate amount of fresh water for said city of Raymond and the inhabitants thereof, it is necessary that plaintiff use the water of said south fork of the Willapa river at the point and place aforesaid where plaintiff intends and proposes to locate its dam and works, to the extent of 30 cubic feet of water per second of time, and by said dam and works impound said waters and divert the same and carry the same into and through the city of Raymond for the purpose, in said city, of supplying said city and the inhabitants thereof with an adequate supply of fresh water for domestic uses and municipal uses and purposes; and that, in order that plaintiff may protect said water from pollution, it is necessary that plaintiff use the lands above described for said purposes and the same is necessary and required by the plaintiff for said uses and purposes, and the object of said condemnation suit is for said purposes and for the purpose of supplying thé city of Raymond and the inhabitants with water for domestic use and for municipal uses and purposes.
‘ ‘ That the city of Raymond is the owner of the water and also the land at the place aforesaid where it takes said water out of said south fork of the Willapa river. That the city of Raymond has expended a large sum of money, to wit: the sum of $140,000, and the said water plant consists of dams, water pipes, reservoir, pumping station, supply and distribution mains, and the water is taken from said south fork of'the Willapa river at the place hereinabove mentioned and said water is used by the city of Raymond for the purpose of supplying the city and the inhabitants thereof with water for domestic use and municipal uses and purposes ; and the city of Raymond intends to continue to operate its said water plant and system to furnish said water to its inhabitants thereof for domestic use and municipal uses and purposes.”
*285The land described as the place where the city of Raymond is now taking water from the river named is below the place on the stream where the respondent is constructing its power plant. The opinion, therefore, is in error in assuming that the city is not making use of the waters of the stream below the place of location of the respondent’s plant. It is true that the city contemplates changing its place of diversion from a point below to a point above the place, and while I freely confess a mistake in this and in another regard in my statement of the fact in the former opinion, the principle on which the opinion rests remains the same. The city desires to keep the water which it uses free from the possibility of pollution, and, in my opinion, the deed is sufficient to enable it to do this by the remedy of injunction, even if it does not convey title to the water flowing over the land in dispute.
That there is danger of pollution from this source is evidenced by the fact that the city has already found it necessary to resort to the public health officers to maintain cleanliness about the respondent’s works. The health of so considerable a community as the city of Raymond being at stake, there ought not to be any too nice refinements in the construction of its deeds of conveyance, and it is too much of a refinement to say that it acquired nothing by its deed other than what it already had as a lower riparian proprietor on the stream.
Mount and Main, JJ., concur with Fullerton, J.