Binning v. Miller

• Decision Date: 29 April 1940
• Docket Number: 2126
• Parties: BINNING v. MILLER, WATER DIVISION SUPERINTENDENT (BAYER ET AL., INTERVENERS) (Opinion No. 1)
• Court: Wyoming Supreme Court

102 P.2d 54

55 Wyo. 451

BINNING v. MILLER, WATER DIVISION SUPERINTENDENT (BAYER ET AL., INTERVENERS) (Opinion No. 1)

No. 2126

Supreme Court of Wyoming

April 29, 1940

APPEAL from the District Court, Sublette County; V. J. TIDBALL Judge.

Suit for an injunction by Burleigh Binning against David P Miller, as Water Division Superintendent of Water Division No. 4, State of Wyoming, wherein Charles J. Bayer and William Bayer intervened. From an adverse judgment, plaintiff appeals.

In reviewing the record, it was considered that the case involved two independent actions requiring separate opinions. Opinion No. 1 disposes of the controversy between plaintiff and Charles J. Bayer, relating to Spring Gulch Creek. The controversy as to Willow Lake Reservoir is considered in Opinion No. 2, following the report of the present case. Briefs of counsel cover both cases and will not be abstracted in connection with Opinion No. 2.

In part reversed, in part modified and affirmed.

For the appellant, there was a brief and oral argument by J. A Greenwood of Cheyenne.

Any partnership attempted was void under Section 47-101, R. S 1931. There was no substantial evidence showing that interveners were damaged by acts of plaintiff, and the judgments in their favor were unsupported. A water division superintendent and his subordinate officials can exercise only authority expressly granted by the legislature or clearly implied as being within express grants, and an attempt or threat to act beyond or in excess of such authority may be enjoined. High on Injunctions, Vol. 2, 4th Ed. pp. 1321-1924, Secs. 1309 and 1910; 22 Cyc. 881; Philadelphia Company v. Stimson, 223 U.S. 605; Ryan v. Tutty, 13 Wyo. 122; Parshall v. Cowper, 22 Wyo. 385. Water division superintendents exercise only executive and administrative authority in regulating water appropriations, and cannot determine controversies between claimants. Ryan v. Tutty, supra; Parshall v. Cowper, supra; State ex rel. Navigation Company v. Clausen, 143 P. 32; Irrigation & Power Co. v. Grant, 44 Wyo. 392. Water cannot be legally applied artificially in a manner resulting in an increase of drainage water from lands and permitting the collections thereon and flow onto and across the lands of another. Howell v. Company (Wyo.) 81 P. 785; Ulery v. County, 63 P.2d 352; Tape v. King County (Wash.) 65 P.2d 1283; Switzer v. Yunt (Calif.) 41 P.2d 974; D'Ambrosia v. Acme Packing & Provision Company, 37 P.2d 887; Water Conservation District No. 1 v. Roosevelt Irr. Dist. (Ariz. ) 6 P.2d 899. Water running off from ground which has been irrigated and not consumed by the process of irrigation is waste water. The user cannot require waste water to continue to be wasted or require the continuance of its flow. Kinney on Irrigation, Vol. 2, 4th Ed. § 661, p. 1150, Ditch Company v. Schneider (Colo.) 115 P. 705; Long on Irrigation, 2d Ed., § 89, p. 159; Mabee v. Platte Land Company (Colo.) 68 P. 1058; Lambeye v. Garcia (Ariz.) 157 P. 977; Ryan v. Gallio (Nev.) 286 P. 963. The burden of proof is continually on the party who asserts the affirmative of an issue, and such party must establish by substantial evidence every controverted fact which he alleges. First National Bank v. Ford (Wyo.) 216 P. 691; Hildebrand v. C. B. & Q. R. R., 45 Wyo. 175. The burden of proof that the dam was an illegal structure was upon defendant. 22 C. J. 147. The alleged agreement for the construction of the dam was within the statute of frauds. Sec. 47-101, R. S. 1931; Mead v. Leo Sheep Company, 32 Wyo. 313; Pottery Company v. Onken Bros., 26 Wyo. 267; Massion v. Mt. Sinai Congregation, 40 Wyo. 297. The evidence shows that the alleged agreement could not be performed within one year. Statute of Frauds, § 47-101, R. S. 1931; Mead v. Leo Sheep Company, 32 Wyo. 313; Burley-Winter Pottery Co. v. Onken Bros. & West Co., 26 Wyo. 287; Shoe Company v. Brooks, 9 Wyo. 424; Davison v. Nicholson, 37 Wyo. 412; Wood & B. Co. v. Lumber Company, 19 A. L. R. 467; Woodworth v. Franklin, 27 A. L. R. 590; Hoge v. George, Admr., 27 Wyo. 423; 95 A. L. R. 1242; Stewart v. McKeon, 36 Wyo. 106; Gold v. Killeen, 33 P.2d 595; Haynes v. Chastion, 68 Ind. 376; Osborne v. Kimball, 21 P. 163; Bank v. Ford, supra.; Hildebrand v. C. B. & Q. R. R., supra. The owner of land has a legal right to control by dam, ditch or canal the action and use of surface water thereon formed from natural drainage or any artificial arrangement, and no right of appropriation can attack thereto under Wyoming laws. Sec. 122-204, R. S. 1931. It was shown by the evidence that the Binning dam was legally constructed. State v. Hiber, 48 Wyo. 172; Hunt v. City of Laramie, 26 Wyo. 160. When a cause pending in a district court of Wyoming cannot be fully determined, without bringing in other parties, the court must order them brought in, or dismiss the action without prejudice. The record shows that the necessary parties in this cause were not before the court, and the judgment is incomplete. Sec. 89-521, R. S. 1931; Bamforth v. Ihmsen, 28 Wyo. 282; U. S. F. & G. Co. v. Parker, 20 Wyo. 29; Kirch v. Nicholson, 42 Wyo. 489. The interveners, relying upon an interest in the Willow Lake Reservoir, must establish the existence thereof by clear, unequivocal and satisfactory proof. Corey v. Roberts, 25 P.2d 940; Pallett v. Pallett, 11 P.2d 898; Taylor v. Sunnell, 23 P.2d 1062; Cahn v. Cahn, 20 P.2d 61; Souza v. Bank of Hanford, 172 P. 175. There was a failure of proof as to a partnership agreement. Coray v. Holbrook, 121 P. 572; Corey v. Roberts, 25 P.2d 940; Costello v. Gleeson, 172 P. 730. The alleged contract was void. Massion v. Mt. Sinai, 40 Wyo. 297; Mead v. Leo Sheep Company, 32 Wyo. 313; Pottery Company v. Onken Brothers and West Co., 26 Wyo. 287. The court erred in its finding as to the interest of plaintiff. The Willow Lake Reservoir finding is not supported by the evidence. The court erred in awarding damages to interveners William Bayer and Charles J. Bayer. The judgment and decree should be reversed.

For the respondents, there was a brief by T. S. Taliaferro, Jr. and A. L. Taliaferro of Rock Springs, and oral argument by T. S. Taliaferro, Jr.

Appellants have not complied with Sec. 89-4905 in preparing their record. The omission is not aided by the decision in Kendrick v. Healey, 26 Wyo. 262. The motion to dismiss the appeal should be sustained. The Supreme Court may consult public records with reference to water rights claimed in this controversy. Bunten v. Rock Springs Grazing Association, 29 Wyo. 489. Waste water must be applied to the land, for which appropriated, but after its return to a public stream, it is subject to other appropriation. State v. Hiber (Wyo.) 44 P.2d 1005; Van Tassell v. City of Cheyenne (Wyo.) 54 P.2d 709. Plans for the construction of dams above five feet in height across public streams must be approved by the state engineer. Sec. 122-1401, R. S. 1931. Plaintiffs admit that there was no such approval in the present cases. It would be impossible for Binning to use beneficially the volume of water diverted by him from Spring Gulch Creek. Ide v. United States, 263 U.S. 497; Popham v. Holloron (Mont.) 275 P. 1099. Counsel for appellant ignore the finding that plaintiff and interveners were joint adventurers. Their argument with reference to the Statute of Frauds is not applicable to the facts as shown by the evidence. 62 C. J., p. 425, § 31; Moss v. Rose (Ore.) 41 P. 666; Reece v. Rhoades, 25 Wyo. 107; Goss v. Lanin (Iowa) 152 N.W. 43; 33 C. J., pp. 854, 855, 858. Possession of the Forest Permit by William Bayer and Glenn A. Coleman was possession by Burleigh Binning and of joint adventurers, and the Statute of Frauds is not applicable. Rohrbaugh v. Molker, 26 Wyo. 514; 27 C. J. 178; 33 C. J. 854. The appellant's communication with the State Engineer about an enlargement of the dam did not affect their interests as joint adventurers. There is nothing in the note to 106 A. L. R. 315 to the contrary. Section 89-521, R. S. 1931 should be considered in pari materia with Section 89-1008, R. S., with respect to parties. A tenant in common may maintain a separate action to recover possession of his interest in the common property. A litigant relying on fraud must plead it. C. J. S. Vol. 1, p. 668, § 38. The Statute of Limitations affecting the claim of one joint adventurer against another for funds paid for the use of the other, begins to run from the date of payment. 33 C. J. 867. The owner of a reservoir must make an annual statement in writing to the water commissioner, showing the names of parties entitled to water from the reservoir. Section 122-1603, R. S. 1931. It was thoroughly understood by the parties and their counsel that the Charles J. Bayer water right was at all times mentioned in the record the property of the intervener, William Bayer, and if the Supreme Court finds it necessary, the judgment and decree can be modified to conform to that fact. It is respectfully submitted that there is no reversible error in the rulings, judgment and decree of the trial court.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This action was originally brought by Burleigh Binning hereinafter mentioned by his name or as plaintiff, against David P. Miller, water superintendent of Water Division No. 4 of this state, which includes Sublette County, in which the property hereinafter mentioned is situated. The action was brought to enjoin the water superintendent from interfering with a certain dam along so-called Spring Gulch Creek, prevent him from shutting down the headgates to plaintiff's ditches, and to compel him to regulate the water coming out of Willow Lake Reservoir in favor of the plaintiff. Charles J. Bayer and William Bayer intervened. Miller agreed in the...