Associated Enterprises, Inc. v. Toltec Watershed Imp. Dist., 4867

Citation578 P.2d 1359
Decision Date18 May 1978
Docket NumberNo. 4867,4867
PartiesASSOCIATED ENTERPRISES, INC., and Johnston's Fuel Liners, Inc., Appellants (Petitioners below), v. TOLTEC WATERSHED IMPROVEMENT DISTRICT and the State Engineer, State of Wyoming, Appellees (Respondents below).
CourtUnited States State Supreme Court of Wyoming

Henry A. Burgess and Kim D. Cannon, of Burgess & Davis, Sheridan, for appellants (petitioners below).

Fred E. Phifer (and Sky Phifer, law student, University of Wyoming, College of Law), Wheatland, for Toltec Watershed Imp. Dist., appellee.

V. Frank Mendicino, Atty. Gen., and Jack Palma, Asst. Atty. Gen., Cheyenne, for the State Engineer, State of Wyoming, appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

This appeal is taken from a district court order affirming the decision of the State Engineer granting to the Toltec Watershed Improvement District an extension of time to commence and complete construction of the Toltec Reservoir and associated facilities, which decision was made and entered under and by authority of § 41-4-506, W.S.1977 (§ 41-206, W.S.1957, 1975 Cum.Supp.). 1

Appellant, Johnston's Fuel Liners, owns the 333-irrigated-acre reservoir site, and leases it and other ranch properties to appellant, Associated Enterprises. The Toltec Watershed Improvement District is, and has for many years been, the owner of Permit No. 7252 Res., and by its letter of November 13, 1975 to the State Engineer, Toltec requested the extensions of time in question, which application was protested by Johnston's Fuel Liners and Associated Enterprises.

A hearing was had by the State Engineer on May 4, 1976, resulting in an order dated November 12, 1976, granting Toltec until December 31, 1977, to commence construction and until December 31, 1978, to complete the reservoir. The reason given for the grant of the extension of time was that the parties interested, as well as the site itself, had been involved in such litigation as prevented the commencement of construction of the reservoir. It was the decision of the State Engineer that the delays occasioned by the litigation respecting Toltec and its water-right permit constituted good cause for extending the time to commence and complete construction of the reservoir, all as provided for in § 41-4-506, supra.

The appellants argued these following issues in their appearance before the trial court, namely:

1. An extension of Permit 7252 Res. would impair the vested senior water rights of the appellants, contrary to the requirements of the law;

2. The order of the State Engineer was arbitrary and capricious and exhibited an abuse of discretion where the findings of fact and conclusions of law failed to indicate that "good cause" for an extension had been shown; and

3. The findings of fact contained in the State Engineer's Order were not supported by substantial evidence and that certain evidentiary rulings made by the State Engineer were arbitrary and capricious.

In a letter opinion upholding the decision of the State Engineer, the district judge concluded:

1. Nothing in the law prohibited the State Engineer from granting Toltec the extension in question, thus rejecting Appellants' argument concerning impairment of its rights;

2. The record supported a finding that "good cause" for the extension had been shown; and

3. The record provided substantial evidence to support the Order of the State Engineer granting Toltec the extensions of time to commence and complete the Toltec Reservoir.

At the outset, it should be made clear that we do not consider the issue, which the appellants seek to interject at the appellate level, having to do with the validity or invalidity of the original permit to construct the reservoir, to have any relevancy to the issues properly before this court.

In a proceeding requesting an extension of time for commencing and completing a reservoir, the appellants did not and could not raise before the State Engineer, or the district court, issues which relate to the propriety of granting the original reservoir permit, and we will not consider on appeal matters not raised below. Angus Hunt Ranch, Inc. v. Bowen, Wyo., 571 P.2d 974; Knudson v. Hilzer, Wyo., 551 P.2d 680; Guggenmos v. Tom Searl-Frank McCue, Inc., Wyo., 481 P.2d 48. See, also, Davis, Administrative Law of the Seventies, § 20.06, p. 462 (1976).

Issue Number 1:

The appellants charge error, best summarized in the State Engineer's brief, as follows:

An extension of the reservoir permit in question would impair the vested rights of the applicant-appellant contrary to the requirements of law.

The trial court denied this contention, and we will affirm the trial court.

In an appellate proceeding confined to the sole issue of whether or not, for good cause, the State Engineer can extend the time within which to commence and complete a reservoir authorized by a permit long since issued, the appellants are, in reality, seeking to relitigate the issue of whether or not the original granting or denying of a reservoir permit will have the effect of impairing the value of existing water rights. See § 41-4-503, W.S.1977 (§ 41-203, W.S.1957). 2 We said in Laughlin v. State Board of Control, 21 Wyo. 99, 128 P. 517, 519:

"The title to the proposed reservoir site, or the right of way for the supply ditch, or the written consent of the owners of a ditch already constructed to enlarge and use it for supplying the reservoir, and the title to the land proposed to be irrigated, were matters not required by the statute to be stated in this application. The application and permit to construct the reservoir was the initial step, and all other matters necessary in order to do so devolved upon the applicant within the time allowed to complete the work. Section 732. Title to the land embraced in the proposed reservoir site or right of way for the supply ditch were matters without the jurisdiction of the State Engineer or the Board of Control. . . ." (Emphasis supplied)

Appellants cannot, in a proceeding contemplated by the extension-of-time statute (§ 41-4-506, W.S.1977 (§ 41-206, W.S.1957, 1975 Cum.Supp.)), supra, litigate claimed rights conceived by the original reservoir permit approval-or-rejection statute (§ 41-4-503, W.S.1977 (§ 41-203, W.S.1957)), supra.

The appellants' arguments to the effect that a reservoir permit or its extension may not be granted where senior rights are affected is untenable for other reasons, one of which is that it ignores the existence of the power of eminent domain for reservoir construction.

Article 1, § 32, of the Wyoming Constitution, reads as follows:

"Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation." (Emphasis supplied)

Article 1, § 33, of the Wyoming Constitution, provides:

"Private property shall not be taken or damaged for public or private use without just compensation." (Emphasis supplied)

Section 41-8-113(a)(iii), W.S.1977 (§ 41-354.13 C., W.S.1957, 1975 Cum.Supp.), provides that under conditions provided therein the board of directors of a watershed improvement district shall have power to:

"(e)xercise the power of eminent domain and in the manner provided by law for the condemnation of private property for public use;"

The land here to be taken would be condemned and compensated for, based upon its value as irrigated land unless it is shown that the water rights are to be sold to a third party or transferred to other lands owned by the applicants (§ 41-3-107, W.S.1977 (§ 41-9, W.S.1957, 1975 Cum.Supp.)). The rights so sold and/or transferred would not suffer loss of priority. This process does not, therefore, conceive of an impairment of water rights. Section 41-3-107, supra, provides:

"(a) The state board of control is hereby authorized, upon the written petition of the owner, or owners of an adjudicated water right, or water rights appurtenant to lands submerged or to be submerged by the Glendo, Boysen and Yellowtail Reservoirs or any other reservoir completed since January 1, 1952, or that may be constructed in the future, in the state of Wyoming, to issue amended certificates of appropriation of water and to change the point of diversion and means of conveyance for such adjudicated appropriations of water for the irrigation of other lands in the state of Wyoming outside of the reservoir basin in lieu of the submerged lands, without loss of priority ; . . .

"(c) The owner or owners of lands coming under the provisions of this act (§§ 41-3-107, 41-3-109) may sell or convey such lands submerged or to be submerged by any such reservoir with provisions in the deed or other conveyance that the water rights appurtenant thereto may be detached and transferred as provided herein." (Emphasis supplied)

Under appellants' analysis of what constitutes "impairment," a junior water right could not be granted where it would inundate a senior water right, because that would "impair" the senior right, in violation of the law. Yet, § 41-3-107 specifically provides a remedy for that exact situation when it permits the sale or transfer of the senior right without interference with its priority, and we will not indulge an assumption that supposes the legislature to have passed an act which is of no force and effect. The legislature will not be presumed to intend futile things. DeHerrera v. Herrera, Wyo., 565 P.2d 479; Kuntz v. Kinne, Wyo., 395 P.2d 286; and Brinegar v. Clark, Wyo., 371 P.2d 62. Appellants' interpretation of § 41-8-126, W.S.1977 (§ 41-354.26, W.S.1957, 1975 Cum.Supp.)) which provides:

"(n)othing in this act (§§ 41-8-101 to 41-8-126) shall be construed as to in any manner impair existing water rights, appropriations or priorities.",

would force a construction upon that statute which...

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  • IN RE USE OF WATER IN BIG HORN RIVER SYS.
    • United States
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    ...of the original construction deadline period. Section 41-4-506. This court noted in Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 578 P.2d 1359, 1365-66 (Wyo.1978): [Section] 41-4-506 finds its genesis in the common-law concept of due diligence which, in the context......
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