Day v. Armstrong

Citation362 P.2d 137
Decision Date23 May 1961
Docket NumberNos. 2961,2966,s. 2961
PartiesKenneth DAY and John Rouse, Appellants (Defendants below), v. J. Reuel ARMSTRONG, Appellee (Plaintiff below). R. K. Stewart, Dee G. Johnson, Charles E. Piersall, C. K. 'Buddy' Faught, Dr. Will Schunk, William C. Jensen, Carroll Noble, John C. Borzea, Verg Teeters, Intervenors R. K. STEWART, Dee G. Johnson, Charles E. Piersall, C. K. 'Buddy' Faught, Dr. Will Schunk, William C. Jensen, Carroll Noble, John C. Borzea, Verg Teeters, Appellants (Intervenors below), v. J. Reuel ARMSTRONG, Appellee (Plaintiff below), and Kenneth Day and John Rouse, Appellees (Defendants below).
CourtUnited States State Supreme Court of Wyoming

Bard Ferrall and John F. Lynch of Greenwood, Ferrall, Bloomfield, Osborn & Lynch, Cheyenne, for Kenneth Day and John Rouse.

Norman B. Gray, Atty. Gen., and George J. Argeris, Asst. Atty. Gen., appearing amicus curiae.

Byron Hirst, Cheyenne, for R. K. Stewart and others.

J. Reuel Armstrong, Rawlins, pro se.

Before BLUME, C. J., and PARKER, HARNSBERGER, and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Plaintiff in March, 1958, sought judgment declaring his rights and those of the public, under applicable provisions of the Federal Constitution, the State Constitution, the laws of Wyoming, and judicial decisions, to go upon the channel, between its high water marks, and to float upon the waters of the North Platte River where it flows upon and across defendants' lands.

Defendants denied plaintiff's and the public's right to either use the channel or to float upon the waters of the river as they crossed their lands, but joined in asking a declaratory judgment.

The State of Wyoming by its Attorney General was allowed to appear as amicus curiae.

Other parties permitted to intervene likewise asked for declaratory judgment, but claimed for the public only the right to float upon or within the waters of the river as it flowed upon and across the lands of the defendants.

During the course of the action, the Thirty-Fifth State Legislature enacted Ch. 205, S.L. of Wyoming, 1959, §§ 41-527, 41-528, W.S.1957 (1959 Supp.), the first section of which provides as follows:

§§ 41-527. Floating persons and property by boat, canoe or raft on streams.--Persons and their property may only float by boat, canoe or raft for any lawful purpose down that part of any stream in the State of Wyoming where the records of the state engineer for the ten years preceding such floating show that part of the stream to have had an average flow of water for the month of July exceeding 1,000 cubic feet per second, and it shall be unlawful to obstruct or prevent such use of such stream, except only so far as may be necessary for the protection of installations now existing or hereinafter ordered constructed by authority of the state board of control in furtherance of the beneficial uses of water; and providing further, that nothing herein shall be construed as preventing such fencing by those invested with property rights and the enjoyment thereof as shall not interfere with such floating. It shall be unlawful for any person floating any stream to go upon, shoot over or into, except with the permission of the owner of such property, or damage or litter property on either side of the waters of such stream. In enforcing this act [§§ 41-527, 41-528], the records of the state engineer shall be conclusive in any trial in any court of the State of Wyoming in determining the flow of any stream. (Laws 1959, ch. 205, § 1.)'

After the passage of this legislation, the intervening parties filed their motion for summary judgment. This was denied by the court which granted the intervenors an exception. Thereafter the matter being submitted on stipulation of facts and arguments as to applicable law, the court found there was a justiciable controversy and a class action for a declaratory determination of the legal rights, duties and obligations of the parties; found generally for the plaintiff and intervenors and against the defendants; then declared:

'* * * that the Plaintiff, and all others similarly situated as a class and the Intervenors, have the public rights and privilege of using the bed, channel and water of the North Platte River as it flows through the lands of the Defendants for the following purposes, and that the Defendants shall not fence or use said bed and channel, or any part thereof, so as to interfere with any of the following public purposes to-wit:

'(a) The right to fish from a boat, or while wading or walking, so long as those exercising the right stay in and upon the river bed or well-defined channel, and have the proper license and permission of the State of Wyoming;

'(b) The right to walk for any lawful purpose in and upon said channel or bed;

'(c) The right to boat and float on the water in and upon said channel '(d) The right to hunt in and upon said bed and channel when hunting is permitted by the State and within the licensed authority give by the State.

'It is, further ordered that said public rights of the Plaintiff, and others similarly situated, shall not embrace the right to camp within and upon said bed and channel or use the same for recreation other than enumerated above.

'It is, further, ordered, adjudged and decreed that any part or parts of Chapter 205 of the Session Laws of Wyoming, 1959, which limit or prohibit the exercise by the Plaintiff of the rights above mentioned is unconstitutional and, therefore, void and of no effect upon the public rights enumerated herein.'

From this judgment the intervenors appeal 'because Ch. 205, S.L. of Wyoming, 1959, is constitutional and determines the rights of the parties,' and because the order denying intervenors' motion for summary judgment was erroneous. The defendants also appeal, but from the whole of the judgment, and they designate the complete record and all the proceedings and evidence in the action for inclusion in the record on appeal. This embodies the pleadings of the parties, stipulations, the unchallenged representations of the intervenors' brief in support of their motion for summary judgment, uncontradicted affidavits submitted in connection therewith, and a brief filed by Wyoming Wool Growers Association and Wyoming Stock Growers Association as friends of the court.

The admitted facts as exhibited by the complaint are: Defendants own land through which the North Platte River flows; at intermittent periods the river can float canoes, rowboats, outboard motors and other floating craft capable of carrying as many as six people; in the month of August and until spring run-off, craft carrying people and drawing more than one foot of water cannot be floated, with minor exceptions, i. e., short stretches or reservoirs; craft drawing less than one foot of water can be floated carrying people until about the middle of October when freezing occurs; from early days until 1940, the river was used commercially for floating logs, ties and timber; plaintiff can enter the river by boat from lands of a national forest, by boat or wading, or from a point where the county road right of way crosses the channel, or by boat or wading from lands of other private owners, and the channel may sometimes be entered between high water marks by walking.

Plaintiff, for himself and the public, claims the right to use the bed and channel of the river and its waters to fish under license of the State, either from a boat floating upon the river waters, or while wading the waters, or walking within the well-defined channel of the stream; to walk in and upon the river's channel; to boat and float upon the waters of the river; to hunt under State license in and upon the channel of the river; and to camp within and upon the channel of the river and use it for recreation. Plaintiff also claims neither of the defendants owns the bed of the river, but if they do hold title to the channel, that title is subject to the paramount right of the public to use the channel for the enumerated purposes, and defendants may not be legally fence the channel or otherwise obstruct it so as to prevent such uses by the public; that the water of the river is the property of the State and that the State has the duty to equally guard all interests in the use of the water as provided by Art. 1, § 31, and Art. 8, § 1, Constitution of Wyoming; that by virtue of the State's ownership of the water, plaintiff and others similarly situated have the right to use the water and the bed of the river for the public purposes enumerated; that defendants denied plaintiff and all other persons the right to use the bed or channel of the river; that defendants fenced the same and claimed they could expel and remove by force, if necessary, the plaintiff and others who attempted to use the bed and channel of the river without first obtaining defendants' consent; that defendants did not permit plaintiff to exercise his claimed rights and will not permit plaintiff's exercise of the same unless restrained; that the question presented is one of great public interest and as such should be determined as provided by Ch. 3, Art. 58, W.C.S.1945 (now §§ 1-1049 to 1-1064, W.S.1957, Uniform Declaratory Judgments Act); and that the Attorney General should intervene.

The defendants' answer in substance denies the river is navigable in fact, although defendants admit that certain small craft have floated and do float upon it, and denies the plaintiff has any of the rights or privileges alleged in the complaint.

Defendants allege that the use of small boats during part of the year upon the river does not constitute navigation of the river, nor does the floating of logs, ties and timber establish the river as being navigable; that they have the right to fence the river channel upon their own land and have the right to use the channel in their own business; that they have the right to deny plaintiff and others all uses, privileges and rights claimed by the plaintiff;...

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