Anderson v. Wyoming Development Company

• Decision Date: 13 December 1944
• Docket Number: 2267
• Citation: 60 Wyo. 417,154 P.2d 318
• Parties: M. T. ANDERSON, et al., Plaintiffs and Appellants, v. WYOMING DEVELOPMENT COMPANY, A CORPORATION, et al., Defendants and Respondents
• Court: Wyoming Supreme Court

154 P.2d 318

60 Wyo. 417

M. T. ANDERSON, et al., Plaintiffs and Appellants, v. WYOMING DEVELOPMENT COMPANY, A CORPORATION, et al., Defendants and Respondents

No. 2267

Supreme Court of Wyoming

December 13, 1944

Appeal from District Court, Platte County; H. R. Christmas, Judge.

Action by M. T. Anderson and others against Wyoming Development Company and others for declaratory and supplemental coercive relief. From a judgment of dismissal, the plaintiffs appeal.

Affirmed.

For the plaintiffs and appellants there was a brief by Ellery &amp McClintock, of Cheyenne, Wyoming, and oral argument by Mr. C R. Ellery.

POINTS OF COUNSEL FOR PLAINTIFFS

Plaintiffs having alleged an actual controversy in each of the nine causes of action, a good cause of action for declaratory judgment is alleged which can not be disposed of on a demurrer for failure to state facts sufficient to constitute a cause of action. The recital of a dispute between the parties and a prayer for relief constitute a valid complaint. Neubeck v. McDonald, 220 N.Y.S. 761, 762.

The discretion given to the court is not a discretion to entertain the action, but to enter or decline to enter the judgment or decree. Miller v. Currie, 242 N.W. 572.

Sufficient facts to show that an actual controversy relating to the legal rights and duties of the respective parties exist between the parties, and growing out of written instruments is all that is essential to be averred in such a proceeding. Oldham v. Moodie, 270 P. 688, 94 Cal.App. 88.

It is rare that a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment. City of Cherryvale v. Wilson, 153 Kan. 505, 112 P 2d 111, 115.

Plaintiffs having set forth facts showing that the water rights initiated by the Development Company have been perfected by the application of water to specific tracts of land owned by the plaintiffs and others, all of whom claim an interest in said appropriations by reason of such application of water to beneficial use, a good cause of action for the quieting of plaintiffs' title in the water rights and irrigation works is stated.

The theory of Wyoming laws and of the administration of water is that a water right is secured for the benefit of and is an appurtenance of the specific lands upon which used. Applications for permits must describe the lands on which the water will be used, and certificates of appropriation must describe the lands on which the water was found to have been used. Frank v. Hicks, 4 Wyo. 502, 35 P. 475; Johnston et al, v. Little Horse Creek Irrigation Company, 13 Wyo. 208, 79 P. 22.

A water right becomes appurtenant to specific land by use on that land.

The execution and delivery of a deed to specific lands, together with a water right is a clear indication that the water right should be appurtenant to the land. The deeds executed by the Wheatland Industrial Company specifically state that the conveyance of interest in the water stored in the reservoir is for the benefit of lands described in the deed "and none other."

Plaintiffs having alleged facts showing that the dependable supply of water available from all sources has been more than sold, a good cause of action is stated to enjoin the operating companies from conveying any more interests in said rights and to exclude from the project all lands over and above the quantity for which there is a dependable supply.

The phrase "capable of being irrigated" as used in the deed, should be given the same reasonable construction as in the direct flow deed. Any other construction would permit the company to lengthen its ditches so as to take in more and more land without ever securing an additional drop of available water.

The carrier has no right to dispose of, or permit the use of any more water from its canal than the capacity of the ditch and the amount of water at its disposal permits. State et al. v. Laramie River Co. 59 Wyo. 9, 136 P. 2d 487, 498. Wyatt v. Larimer & Weld Irrigation Co., 33 P. 144, 148 (Colo.); In Re Waters of Willow Creek, 236 P. 487, 500, 501, (Ore.).

There is no right to sell more water rights than for which there is an adequate supply of water. Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S.Ct. 618, 621; Caldwell v. Twin Falls Salmon River Land & Water Co. 225 F. 584, 589 (Idaho).

All conveyances executed after the supply of water available had been exhaused were void because the companies had nothing left to sell. Blakely v. Ft. Lyon Canal Co., 73 P. 249 (Colo.).

The entire capacity of the irrigation works having been conveyed as a part of the conveyance of the water rights, which conveyances have exhausted the dependable supply of water and hence have divested the companies of all interest in the water rights or irrigation works appurtenant thereto, the plaintiffs and other purchasers of water rights from the two companies are now the owners of the system and entitled to the operation and management thereof. Eldridge v. Mill Ditch Co., 177 P. 939 (Ore.); Blakely v. Ft. Lyon Canal Co., 73 P. 249 (Colo.); Boley v. Twin Falls Canal Co., 217 P. 258, 262 (Idaho).

It does not appear from the face of the petition that the suit is barred by the statute of limitations or laches. 44 Am. Jur. 47.

For the defendants and respondents there were briefs by W. B. Jones, of Wheatland, Wyoming, O. O. Natwick, James A. Greenwood and Ray E. Lee, all of Cheyenne, Wyoming, and oral argument by Mr. Jones and Mr. Greenwood.

POINTS OF COUNSEL FOR THE WYOMING DEVELOPMENT CO., ET AL., RESPONDENTS

The jurisdiction of district courts in connection with water rights is well settled. Farm Investment Company v. Carpenter, 9 Wyo. 110; Laramie Power Co. v. Grant, 44 Wyo. 392; Simmons v. Ramsbottom, 51 Wyo. 419, 68 P. 2d 153.

A petition for a declaratory judgment or decree can be disposed of on demurrer. General Insurance Company of America v. Ham, Commissioner, 49 Wyo. 525, 57 P. 2d 671; Beatty v. C., B. & Q. R. Co., 49 Wyo. 22, 52 P. 2d 404; Holly Sugar Company v. Fritzler et al., 42 Wyo. 446, 296 P. 206; Hencken v. City of Morgan Hill, 69 P. 2d 462; Manchester v. Town of Townsend (Vt.) 110 A.L.R. 811.

It is well settled that if it appears from the face of a pleading that the remedy sought is subject to bar by limitation or laches, the point may be raised by a general demurrer. Cowhick v. Shingle, 5 Wyo. 87; Columbia Savings and Loan Assn. v. Clause, 13 Wyo. 166, 78 P. 708; 44 Ohio St. 12, 4 N.E. 236.

Plaintiffs are not entitled to relief because of their own laches. Holt v. City of Cheyenne, 22 Wyo. 212; Crowell v. City of Cheyenne, 54 Wyo. 459, 93 P. 2d 934; Binning v. Miller, 55 Wyo. 451, 102 P. 2d 54.

This case is a collateral attack upon a decree. This cannot be done, even where based upon allegations of fraud. Hay v. Penton et al. 45 Wyo. 82, 16 P. 2d 35.

The contention of the plaintiffs as to the duty of the court or any other authority to determine what they call the dependable flow and then to allocate that dependable flow to certain specific tracts of land is erroneous. The term "dependable flow" has never received recognition in Wyoming under constitutional provisions, statutes, or court decree in connection with the right to obtain a direct flow appropriation of water or to obtain the right to use storage water from any stream within the state of Wyoming.

There is no statutory procedure in Wyoming whereby a so-called inchoate adjudication of a water right can be acquired. Wyoming v. Colorado, 259 U.S. 419, 488, 66th L.Ed. 999, 1023.

POINTS OF COUNSEL FOR THE SWAN COMPANY, RESPONDENT

It is proper to test the sufficiency of a Petition in an action for a Declaratory Judgment by Demurrer. So far as pleadings are concerned, the principles applied to pleadings under the code should be followed and control. 16 A.J. 333, Sec. 63. General Insurance Company of America v. Ham, 49 Wyo. 525.

There must be a controversy between parties to an agreement before the right to maintain an action for Declaratory Judgment construing or declaring the rights under that agreement exist. The Swan Company and the Wyoming Development Company are not adverse parties in this action: they are both defendants.

Plaintiffs have no power to interfere with the contract between The Swan Company and the Wyoming Development Company.

The right to object to the contract between the Swan Company and The Wyoming Development Company may be lost or barred by "estoppel, laches or prescription." This right is a right personal to the owner of the land but the owner of the land is not objecting.

The facts disclosed by the Amended Petition show that the rights which are being attacked have been in existence for forty years or more, and during all of that period have been unquestioned.

Campbell, et al. v. Wyoming Development Company et al., 55 Wyo. 347, at page 400.

A Declaratory Judgment cannot be resorted to, to modify or elucidate a judicial decree or judgment. 1 C.J.S. 1036, Lodner v. Siegel, 144 A. 274, City of Williamsport v. Williamsport Water Company, 150 A. 652; National Biscuit Company v. Kellogg Company, 22 F.Supp. 801.

POINTS OF COUNSEL FOR THE GREAT WESTERN SUGAR COMPANY, RESPONDENT

A demurrer to a petition under the Declaratory Judgments Act will lie in a proper case. Hencken v. City of Morgan Hill, et al., 69 P. 2nd 462; Holly Sugar Co. v. Fritzler, 42 Wyo. 445; Simpkins v. City of Rock Springs, 33 Wyo. 166, 237 P. 243; Moss v. Moss, 128 P. 2d 526 Cal. 141 A.L.R. 1422; 1 C.J.S., pages 1055-6.

If the purpose of the amended petition is to attack the decree entered by the District Court, the proceeding is entirely improper. The Court will not entertain such an action, 16 Am. Jur. 295, N. 23.

The question of laches can be raised by demurrer when the petition on...