Bamforth v. Ihmsen

Decision Date10 February 1922
Docket Number1023
PartiesBAMFORTH v. IHMSEN, Admr
CourtWyoming Supreme Court

[Copyrighted Material Omitted]

Rehearing Denied April 11, 1922, Reported at: 28 Wyo. 282 at 320.

ERROR to the District Court, Laramie County; HON. WILLIAM C MENTZER, Judge.

Action by Frederick J. Ihmsen as administrator of the estate of Thomas Gardner, deceased, against Fred F. Bamforth and another to quiet title to interests in ditch and water rights in which cause the heirs of Thomas Gardner, deceased, and C. P. Arnold, intervened. There was a judgment for plaintiffs and intervenors and defendant Bamforth brings error. The material facts are stated in the opinion.

Reversed and Remanded.

Albert D. Walton and H. V. S. Groesbeck, for plaintiff in error.

Plaintiff Ihmsen was without capacity to sue; he was clerk of the court and his appointment as administrator was void. The compensation of clerks must be prescribed by law. (Const. Art. 5, Section 13.) Their salaries may not be increased during terms; stated salaries must be paid all county officers. (Const. Art. 14, Section 1.) Clerks may act as administrators in estates less than $ 500.00. (Sec. 6745 Comp. Stats.) The axiom expressio unius exclusio alterius est applies. The clerk's duties are prescribed by statute; his duties in connection with estates are quasi-judicial in some instances. (Ross P. L. 158.) The office is incompatible with that of administrator. (6 Ency. A. & E. 134.) The order being void may be attacked collaterally. (Rice v. Tilton, 14 Wyo. 101; Hussey v. Southard, 90 Me. 298; Taylor v. Hasick, 13 Kans. 518.) An administrator is without authority to bring a suit to quiet title. (Ripley v. Miller, 152 F. 11; 2 Kinney on Irr. 834.) An administrator is without capacity to sue to quiet title. (Cook v. Elmore, 25 Wyo. 393.) The amendment by Chapter 19, Laws 1919 conferring such power was enacted since and does not apply. The pleading of intervenor Arnold is incomplete and sets up no claim. (Guaranty Co. v. Parker, 20 Wyo. 29; Mau v. Stoner, 15 Wyo. 109.) A joint recovery cannot be sustained by proof of several and independent causes of action in favor of separate plaintiffs. (Taylor v. Stockwell, 22 Wyo. 492; 30 Cyc. 105.) The Court without formal order recognized the intervenors which changed the nature of the action. (1 Bates, 118;) they are merely interlopers. (11 Ency. P. & P. 509.) Plaintiff could not bring in these new parties. The procedure is to first try the equitable part of the action and if a jury is demanded to try the issue of damages. (3 Kinney Irr. 2788; Wolbol v. Steinhoff, et al., 25 Wyo. 227.) Blackburn and Weightman should have been joined as plaintiffs. The petition fails to state a cause of action within the statute or within the rule of Durell v. Abbott. (6 Wyo. 265.) The ditch title statute is unconstitutional. Sections 807-812 provide for establishing ditch ownership in accordance with adjudicated water rights. It is not competent for the legislature to make an affidavit evidence of ownership without notice to other owners of the ditch. (Const. Art. 1, Sec. 6; Art. 1, Sec. 32; State v. Guilbert, 56 O. S. 575. Notice by registered mail should be sufficient. (Inv. Co. v. Carpenter et al. (9 Wyo. 110.) An affidavit is not admissable as prima facie evidence of facts it contains. (1 R. C. L. 766.) Vested rights will not be disregarded by statute of limitations. (12 C. J. 1225; 6 R. C. L. 450.) This court has interpreted the principles governing our bill of rights. (Grover Irr. Co. v. Ditch Co., 21 Wyo. 208; Arbuckle v. Pflaeging, 20 Wyo. 351; Bolln Co. v. Irr. Co., 19 Wyo. 542.) The action was evidently brought under Section 812, Comp. Stats. 1910, which, as we have observed, is void. Plaintiff has an adequate remedy at law for recovery of damages, therefore, injunction will not lie. (3 Kinney Irr. 2919.) The decree of the Board of Control to plaintiff intestate is not set out. The rule requires a former decree relied upon to be alleged. (Davis v. Chamberlain, 51 Or. 304; 98 P. 154.) The adjudication of rights of Gardner and Bamforth were contemporaneous. (3 Kinney Irr. 2785; Johnson v. Irrigating Co., 13 Wyo. 208.) Gardners appropriation from the Board of Control was in another township and no change was asked for in the petition and no correction was made by the Court below. Defendant asked that a change be made in his appropriation but this was ignored by the trial court. Action to quiet title cannot be brought by an administrator. (1 Wiel 300.) The heir and not the personal representative of a decedent may maintain such an action. (11 R. C. L. 276; Marsh v. Board, 38 Wis. 250.) The Board of Control was without authority to determine the ownership of the ditch. (Collett v. Morgan, 21 Wyo. 117.) The ownership of the ditch could not be determined by the ratio. Feast and Blackburn were shown to have some interest in the ditch which had not been conveyed. The decree is erroneous in attempting to adjudicate proportionate interest in the ditch in accordance with the volume of water adjudicated to the respective parties. The ditch and water rights had been abandoned by Gardner and Arnold; it is not alleged that their lands needed irrigation which is a fatal omission. (Allan v. McGill, 189 P. 987; Section 777 Wyo. Comp. Stats; Vineyard Co. v. Company, 155 C. C. A. 305; Huford v. Fye, 121 P. 400; Johnson v. Irrigating Co., 13 Wyo. 208; Rutherford v. Canal Co., 12 Wyo. 299.) Arnold and Weightman constructed a new ditch with a headgate above the Bamforth ditch. Plaintiffs and intervenors are estopped by their acquiescence. (1 Wiel 640; 2 Kinney Irr., 2032.) Abandonment within the terms of Section 741 Comp. Stats. 1910 was clearly shown. The statute on abandonment merely supplies an accumulative remedy and is not exclusive. The rule adopted by this Court settles the question. (Van Buskirk v. Livestock Co., 24 Wyo. 183.) Plaintiffs and intervenors have a remedy at law, relief being available under Section 824 Comp. Stats. 1910. The Court erred in the admission of the records of the Board of Control; the court also erred in the admission of testimony as more specifically pointed out in our brief. The Court erred in permitting Arnold to testify with respect to a petition prepared by him in former years for use before the Board of Control. The Gardner heirs are non-resident aliens and cannot inherit real property; their interests escheated to the state which was not a party; the treaty negotiated between this country and Great Britain (31 U. S. Stats. 1939.) restricts the rights of subjects or citizens to benefits of lands situated in territories of either country. Congress has never attempted legislation as to the states on the subject of alienage. Resident aliens may inherit. (Art. 1, Sec. 29.) A distinction is made between states and territories. (Glynn v. Glynn, 62 Neb. 872.) Our statute of descent and distribution protects the rights of descendants but does not extend to collateral relatives such as those here involved. An alien at common law cannot acquire title to real estate by operation of law. (2 Cyc. 94; 2 C. J. 1058; 2 R. C. L. 113.) The apportionment of costs was erroneous; the decree is vague and uncertain and clearly erroneous as to the ditch interests decreed to the parties. A judgment quieting title cannot give plaintiff water in excess of what he has previously used. (Garthen v. Co., 170 P. 1113.) It was unfair to amend the decree to conform the pleadings with the proof. (48 O. St. 440.) There was no evidence that Arnold ever did any work on the Park Ditch. Feast's appropriation was never transferred. The decree did not state the time of appropriation. (Lee v. Hanford, 121 P. 558.) The decree was not definite as to the water appropriated by each party nor the date of appropriation; it failed to state the ownership of the water; it does not separate the ownership of the intervenors. The decree deprives the water commissioner of his statutory authority in the division of water conducted through partnership ditches. (Hamp v. State, 19 Wyo. 377; 1 Wiel 502. Company v. Smithville Co., 218 U.S. 371.) Decrees of this class should be definite as language can make them. (Anthers v. Bryant, 22 Nev. 242; Patterson v. Ryan, 108 P. 1118.) A proprietor guilty of laches is not entitled to injunction. (1 Wiel 710.) The decree should have recognized that the administrator had his remedy for distribution by action of the water commissioner and since he had an adequate remedy at law he was not authorized to bring a bill in equity. (11 R. C. L. 65.) The trial court did not recognize the fact that there had been an entire change of parties plaintiff, and this cannot be permitted under statutory provision permitting amendments. Defendant contested all defects in pleadings of opposing parties and all were brought to the attention of the court below.

N.E. Corthell, for defendant in error.

The appointment of Ihmsen as administrator was made by a court having jurisdiction to act and is not subject to collateral attack. There is nothing in the statutes forbidding the appointment of a clerk as administrator; the authorities cited on this branch of the case are not in point, in fact refute the argument. (Sadler v. Sadler, 16 Ark 628.) An administrator has ample authority to prosecute an action to quiet title. Comp. Stats. 4313, 5561, 1910 and other sections of the code sustain this principle. The objection that intervenors were not properly joined is without merit, in view of the numerous motions and objections raised with reference to their interests in the subject matter. In view of these proceedings it does not lie in the mouth of plaintiff in error to say that intervenors were not in fact parties to the litigation or to object to their presence as parties; the...

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2 cases
  • State ex rel. Eaton v. Hirst, 2047
    • United States
    • Wyoming Supreme Court
    • May 25, 1938
    ...L. 330; 38 C. J. 853, 856; Merriam v. County Treasurer, 11 Nebr. 266; Secs. 89-4511, 4512, R. S. 1931; Sec. 89-522, R. S. 1931; Bamforth v. Ihmsen, 28 Wyo. 282; Posvar Pearce, 37 Wyo. 509. A careful reading of the authorities cited by appellant in support of her contentions will show that t......
  • Bamforth v. Ihmsen
    • United States
    • Wyoming Supreme Court
    • April 11, 1922
    ...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 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 ......

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