Bamforth v. Ihmsen

Decision Date11 April 1922
Docket Number1023
Citation28 Wyo. 282,205 P. 1004
PartiesBAMFORTH v. IHMSEN, Admr
CourtWyoming Supreme Court

28 Wyo. 282 at 320.

Original Opinion of February 10, 1922, Reported at: 28 Wyo. 282.

Rehearing denied.

POTTER Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

ON PETITION FOR REHEARING

POTTER Chief Justice.

Defendants in error have filed a petition for a rehearing in this cause specifying as the only point to be considered that said defendants in error should be permitted to accept a modification of the findings and judgment suggested in this court's former opinion disposing of the cause upon the original hearing. In specifying that point, the petition refers to the statement in our former opinion that if we could say that the trial court had passed on all the evidence upon the subject of ditch rights, instead of resting its conclusion upon a presumption arising from Section 928, Comp. Stat. 1920, we might then simply modify the decree. (See the opinion as reported in 204 P. 345 at 345-358.) But it was further said in the opinion in that connection that "we are not able to so say, and we see no alternative but to reverse the case and remand it for a new trial." And we are not now convinced that the case should be finally disposed of here by the suggested modification, or that a rehearing might result in a change of our view of the matter justifying such a disposition of the cause.

By the third cause of action upon which the case was finally submitted to the trial court, it was sought to quiet the title of the plaintiff, as administrator, to the alleged two-thirds interest of the decedent Gardner in the Park ditch, as well as the same alleged interest in the water appropriated and carried through the ditch. And it was alleged in that connection that the plaintiff was unable to agree with the defendant Bamforth upon the amount of the interest in said ditch owned by each, and that the plaintiff desired upon the filing of an affidavit or otherwise, to have the respective interests of the parties in such ditch and waters determined by the court. And the intervening petition of the heirs at law of the decedent Gardner admits and reaffirms each and every allegation of the plaintiff's petition, and alleges the absence of any right of the defendant Bamforth to the said two-thirds interest in the ditch, and also the water rights for the irrigation of the Gardner lands, and prays that they be adjudged owners in fee simple of said two-thirds interest in the ditch, as well as in two-thirds of the water flowing therein.

The record shows also, by objection to testimony offered by the defendant, that counsel for the plaintiff and the intervening heirs contended that the relative rights of the parties in the ditch and the proportionate ownership thereof was to be determined according to the proportion of their adjudicated water rights through that ditch, and that any direct evidence showing by whom the ditch had been constructed, or other facts that might tend to show ownership aside from the proof of adjudicated water rights was inadmissible. The court, however, admitted, over such objection, some testimony as to the construction of the ditch, and evidence was also admitted as to repairs upon the ditch and the use of water through it by the respective parties. Two petitions signed by Bamforth, one of which was shown to have been filed with the Board of Control, were introduced in evidence by the parties opposed to Bamforth, containing an admission by Bamforth that he owned a one-third interest in the ditch, and the other parties a two-thirds interest. But the court, aside from a general finding in favor of plaintiff and intervenors upon the issues joined, found specially that the intervenors, collectively, owned an undivided 850/1160ths interest in the Park ditch, and the defendant Bamforth, 310/1160ths interest, "corresponding with the water rights adjudicated and awarded to the said parties respectively, and to their respective predecessors in interest;" clearly showing that such finding was based solely upon the proof of the adjudicated water rights, without considering any of the other evidence upon the subject, except possibly the evidence showing the use of the appropriated water through the ditch. And we remain of the opinion that this court should not dispose of the case by modifying the judgment upon evidence not considered by the trial court, and which would require a finding based upon such unconsidered evidence. (City of Rawlins v. Jungquist, 16 Wyo. 403, at pages 435-437, 94 P. 464.) Whatever might be considered the effect of the defendant's admission in the petitions aforesaid, or the other evidence on the subject, the question, one of fact, ought to be passed upon by the trial court.

Nor do we think that the suggested necessity for ending this particular litigation is sufficient to justify our disposition of the cause by a modification of the judgment, or that it should be disposed of to secure the early installation of a division box, to enable the parties to obtain the water in accordance with their adjudicated rights. If the trial court should not be disposed to hold that it has authority to require the installation of such a box pending the action, as prayed for in the petition, or that it is necessary, it would seem that the division of the water might be temporarily provided for under Section 946, Comp. Stat. 1920, authorizing the distribution of water from a ditch jointly owned, where such joint owners are unable to agree relative to such distribution, and authorizing the water commissioner to take exclusive charge of the ditch for that purpose. With the issues in the case much simplified by our decision disposing of the other questions presented upon the original hearing, there ought not to be much difficulty or delay in bringing the cause to a final disposition upon a new trial; and in any event, we think it necessary that the question of the relative ownership of these parties in the ditch should be determined in the first instance by the trial court upon the proper theory as explained in our former opinion.

A further objection to disposing of the case by the suggested modifications, is the inability of this court to make the further findings required by Section 933, and the impropriety of its doing so, in the absence of any finding on the subject by the trial court.

Our view of the statute providing for a record of the ownership of ditches and other irrigation works and prescribing a rule for establishing the same in the absence of a record, so far as it applies to this case, seems to be fully explained in the former opinion. But it is suggested in the brief now filed that some of the expressions in that opinion with reference to the matter are broader than the case requires or the statute justifies. We are not sure that we understand what is intended by that assertion, or the further suggestion that the question be re-examined for the purpose of stating the limitations that may be thought needful in the accurate interpretation of the statute. The statute had our careful consideration at the time of the decision, and there was no intention to go beyond the necessities of the case in explaining our interpretation of it, and we do not now perceive wherein it may be thought that we had done so, unless counsel's...

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    • United States
    • Wyoming Supreme Court
    • March 12, 1940
    ... ... insufficient. Farm Investment Company v. Carpenter, supra; ... Willey v. Decker, 11 Wyo. 496; Collett v ... Morgan, 21 Wyo. 117; Bamforth v. Ihmsen, 28 ... Wyo. 282; U. S. v. Butler, 297 U.S. 63. The ... Development Company was not a party to the Little Laramie ... River ... ...
  • Novosel v. Sun Life Assurance Company of Canada
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    ... ... accordingly must prevail. See Upjohn v. Moore, 45 ... Wyo. 96, 16 P.2d 40; Bamforth v. Ihmsen, 28 Wyo ... 282, 300, 204 P. 345; Sugar Co. v. Fritzler, 42 Wyo ... 446. 473, 474, 296 P. 206; Brewer v. Folsom Bros., ... 43 ... ...
  • Holliday v. Templin
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    • June 18, 1940
    ... ... P.2d 572. Plaintiff's failure of proof or defendant's ... evidence lead to judgment for the defendant. Either is ... sufficient. Bamforth v. Ihmsen, 28 Wyo. 282 ... Plaintiff must rely upon the strength of his own title and ... cannot succeed by merely attacking defendant's title or ... ...
  • State v. Laramie Rivers Co
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    • Wyoming Supreme Court
    • April 19, 1943
    ... ... 41. The ... court and the Board held that they were without power to ... determine the ownership or right to the use of the ditch ... Bamforth v. Ihmsen, 28 Wyo. 282; Laughlin v ... Board, 21 Wyo. 99; Linck v. Brown, 55 Wyo. 100 ... BLUME, ... Justice. KIMBALL, Ch. J., and ... ...
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