Big Goose & Beaver Ditch Co. v. Wallop, 3149

• Decision Date: 07 June 1963
• Docket Number: No. 3149,3149
• Citation: 382 P.2d 388
• Parties: BIG GOOSE AND BEAVER DITCH COMPANY, a Wyoming Corporation, J. W. Wilson, Jr., and Herbert Doenz, Appellants (Plaintiffs below), v. Oliver WALLOP, Appellee (Defendant below), The State Board of Control of the State of Wyoming, Earl Lloyd, Ben LeVasseur, Charles Lawrence, DeVere Hinckley, and David P. Miller, Members of Said Board (Defendants below).
• Court: Wyoming Supreme Court

Page 388

382 P.2d 388

BIG GOOSE AND BEAVER DITCH COMPANY, a Wyoming Corporation, J. W. Wilson, Jr., and Herbert Doenz, Appellants (Plaintiffs below), v. Oliver WALLOP, Appellee (Defendant below), The State Board of Control of the State of Wyoming, Earl Lloyd, Ben LeVasseur, Charles Lawrence, DeVere Hinckley, and David P. Miller, Members of Said Board (Defendants below).

No. 3149.

Supreme Court of Wyoming.

June 7, 1963.

Alfred M. Pence, Laramie, and James A. Greenwood, Cheyenne, for appellants.

W. J. Wehrli, Casper, for appellee.

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

Mr. Chief Justice PARKER delivered the opinion of the court.

This is a suit challenging the water right of a landowner whose predecessors in interest had disposed of their stock in the company through whose ditch the original owner of the land had diverted water. Plaintiffs, on their own behalf and on behalf of the stockholders of the ditch company, filed complaint for declaratory judgment in two counts, the first seeking a holding that water could not be diverted from the East Fork of Big Goose Creek under Priority No. 28, dated August 29, 1885, issued by the state board of control, unless by a stockholder of the company, and the second asking that the court hold void the order of the board of control which allowed a change in point of diversion of the water claimed by defendant Wallop.

Plaintiffs filed a motion for summary judgment, and defendant Wallop, hereinafter referred to as defendant, filed a similar motion, combined with one to dismiss. Various answers to interrogatories, affidavits, and copies of official records were presented by the parties. The court after hearing issued judgment for defendant.

The allegations of the complaint were in essence not lengthy:

The plaintiff company on August 29, 1885, filed its claim to appropriate irrigation water from the East Fork of Big Goose Creek and after completing its diversion works sold forty shares of its capital stock, each share representing one-fortieth interest in 101.37 c.f.s. of water appropriated; one share of the stock was sold to Oser for the irrigation of 200 acres of land. Oser while a stockholder of the company submitted proof of having completed an appropriation under the water right obtained by the company; in 1957 defendant became the owner of this land but the appropriated water had been previously detached and separated therefrom. Defendant Wallop's predecessor in interest in 1952 had filed a petition before the state board of control alleging that she was the owner of the right to use 2.85 c.f.s. of water appropriated under the claim of the company; the board of control granted said petition to change the point of diversion from a point where the ditch company diverts water to a point of diversion from Cross Creek (some distance above). Her representation regarding the ownership of the water right was untrue in that she did not own an interest in the company's appropriation of August 29, 1885, Priority No. 28, and any water right to the land in question had been previously detached. The threatened unlawful diversion of the water by defendant would result in injury and damage to plaintiffs.

The facts developed by the interrogatories, affidavits, and copies of official papers are not in serious dispute except as to their interpretation. Plaintiffs admit that defendant is the owner of the land here in issue, and defendant concedes that his predecessors in interest had sold their share of the stock in the ditch company before the land passed to him and further that some of the instruments by which title had passed to him had not specifically mentioned water rights. Basically, the dispute concerns in whom the water right vested and whether it remained appurtenant to the Oser land after subsequent owners sold their stock in the ditch company.

Counsel say that the ditch company complied with territorial laws of Wyoming. Some of the pertinent statutes were:

'At any time hereafter, any three or more persons who may desire to form a company for the purpose of carrying on any kind of manufacturing, mining, chemical, merchandising or mechanical business; construct wagon roads, railroads, telegraph lines, dig ditches, build flumes, run tunnels, or carry on any branch of business designed to aid in the industrial or productive interests of the country, may make, sign, and acknowledge before, some officer competent to take the acknowledgment of deeds, duplicate certificates in writing, in which shall be stated the corporate name of said company, and the object for which the company shall be formed, the amount of capital stock of the said company, the term of its existence, not to exceed fifty years, the number of shares of which the said stock shall consist, the number of trustees, and their names, who shall manage the concerns of the said company for the first year, and the name of the town and county in which the operations of the said company shall be carried on, and shall file one of said certificates in the office of the county clerk of each county wherein the business of the company is to be carried on, and one thereof in the office of the secretary of the Territory. The county clerk shall record said certificate in a book kept by him in his office for that purpose.' § 1, c. 34, C.L.Wyo., 1876.

'Whenever any three or more persons associate under the provisions of this article, to form a company for the purpose of constructing a ditch for the purpose of conveying water to any mines, mills, or lands, to be used for mining, milling or irrigating of lands, they shall, in their certificate, in addition to the matters required in section one of this article, specify as follows: The stream or streams from which the water is to be taken; the point or place on said stream at or near which the water is to be taken out; the line of said ditch, as near as may be, and the use to which said water is intended to be applied.' § 28, c. 34, C.L.Wyo., 1876.

'In order that all parties may be protected in their lawful rights to the use of water for beneficial purposes, every person, association or corporation, owning or claiming any interest in any ditch * * * within any water district shall * * * file with the clerk of the district court having jurisdiction of priority of rights to the use of water for irrigation, in such water district, a statement of claim, under oath, entitled of the proper court, which statement shall contain the name or names, together with the postoffice address of the claimant or claimants claiming ownership * * * of any such ditch * * *. The description of such ditch * * * the time * * * as the date of appropriation of water by original construction, also by any enlargement or extension, if any such thereof have been made, and the amount of water claimed by or under such construction, enlargement or extension, and the present capacity of the ditch * * * and also the number of acres of land lying under and being, or proposed to be, irrigated by water from such ditch * * *.' § 1340, R.S.Wyo., 1887.

'It shall not be necessary for any corporation heretofore organized and now existing, or for any corporation hereafter organized, under the laws of this territory, which has heretofore, or shall have hereafter constructed, operated or maintained, any ditches * * * for the purpose of irrigation * * * to incorporate as a ditch company * * * if the objects or purposes for which such corporation shall have been formed or incorporated, imply, permit or make necessary, or advantageous, such use or uses of water; and such corporation for all the purposes of this chapter shall have all the rights of a natural person as defined herein, and shall have its rights determined in the same manner * * *.' § 1358, R.S.Wyo., 1887.

'This chapter shall in no wise be construed as impairing or abridging any rights already vested in any person or persons, company or corporation by virtue of the law heretofore in force.' § 1361, R.S.Wyo., 1887.

The charter of incorporation of the Big Goose and Beaver Ditch Company, filed for record with...