Binning v. Miller, Water Division Superintendent

• Citation: 55 Wyo. 478,102 P.2d 64
• Decision Date: 29 April 1940
• Docket Number: 2126
• Parties: BINNING v. MILLER, WATER DIVISION SUPERINTENDENT (BAYER ET AL., INTERVENERS) (Opinion No. 2)
• Court: Wyoming Supreme Court

102 P.2d 64

55 Wyo. 478

BINNING v. MILLER, WATER DIVISION SUPERINTENDENT (BAYER ET AL., INTERVENERS) (Opinion No. 2)

No. 2126

Supreme Court of Wyoming

April 29, 1940

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

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

Reversed and remanded, with directions.

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

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.

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, to prevent him from shutting down the headgates to plaintiff's ditches, and to compel him to regulate the water coming out of a reservoir, called Willow Lake Reservoir, in favor of plaintiff. Charles J. Bayer and William Bayer intervened. Miller agreed in the case to abide by the judgment of the court. The real controversy is between the plaintiff and interveners, and no further reference need be made to Miller, as defendant. The case developed into two independent actions, one relating to the dam on the so-called Spring Gulch Creek and matters incidental thereto, and the other relating to Willow Lake Reservoir and matters incidental thereto. The present opinion, named No. 2, will dispose of the controversy between plaintiff and interveners in reference to Willow Lake Reservoir, leaving the controversy as to Spring Gulch Creek for a separate opinion this day filed.

The matter in dispute herein is the ownership of the reservoir above mentioned, and the dam therefor. It is situated in parts of sections 10, 11, 15-21, T. 35, R. 109. It is located, in a general way, northeasterly of the lands of Binning and the interveners herein. Binning, in his petition, alleged that he is the owner of certain lands; that he has duly adjudicated water rights by direct flow; that he constructed and owns the reservoir in question, which has a capacity of 15,120 acre feet of water. He obtained a permit to construct the reservoir and dam from the state engineer on March 29, 1922; he received certificates of appropriation therefor from the Board of Control of this state on December 30, 1931, part in his own name, part in his wife's name, part in their joint name. William Bayer, the intervener, filed a petition of intervention and an answer. He alleged, in brief--some inconsistency appearing in the two pleadings--that he is the owner of certain lands, with water rights by direct flow; that an agreement was entered into in 1919 between himself, P. W. Jenkins, Glenn Coleman and Charles J. Bayer and the plaintiff Binning, to construct the foregoing reservoir jointly, each to own an interest in proportion to the lands irrigated by the parties from Lake Creek; that it was constructed by the parties, the intervener contributing labor and expense thereto; that thereafter Binning obtained a reservoir permit from the State Engineer, failing to take it out in the name of all the parties interested therein, and obtained the sole right to store water therein; that intervener was excluded from the use of water therefrom in 1931, and that he has been damaged in the sum of $ 14,000. He prayed that the plaintiff be declared to hold the title to the reservoir in trust for the benefit of all parties interested, and for damages. The intervener Charles J. Bayer alleged that he is a joint owner of the reservoir and that the plaintiff Binning is only entitled to 9,295 acre feet of the water stored therein. He prayed that he be declared to be a part owner. Plaintiff filed what is called a reply to the allegations of the interveners. He alleged that their claims are barred by the statute of frauds; that he expended more than $ 15,000 in constructing and maintaining the dam and reservoir; that the interveners are guilty of laches and should be declared to be estopped from claiming any interest therein. In his so-called reply to William Bayer, he prayed that if the latter should be decreed to be part owner of the reservoir, then that he be compelled to pay his proportionate part of the expense. A so-called "traverse" was filed to the so-called "replies" of plaintiff, in which the affirmative allegations of plaintiff were denied, and in which the interveners offered to pay their proportionate share of the expense incurred by Binning in the construction of the foregoing dam and reservoir. Some other facts appearing in the pleadings will be mentioned hereinafter. The court held that the parties entered into a joint adventure in 1919 in constructing the reservoir; awarded each of the interveners an interest therein; declined to pass upon the amount which interveners should contribute, because of want of pleading and evidence, and because of absence of parties, but gave any interested party the right to bring in all necessary parties, so that the amount of required contributions, and the definite amount of water to which each interested party would be entitled, might then be ascertained and determined. Further details will be mentioned hereafter. From that judgment the plaintiff has appealed.

1. The Facts. In the latter part of 1918 or early part of 1919 the plaintiff Binning and William Bayer and Glenn Coleman had a conversation in connection with the construction of a temporary dam near the outlet of Willow Lake Reservoir, for the purpose of impounding storage water for irrigation. The plaintiff testified to this conversation and admitted that he asked Bayer and Coleman to help him, although he stated that nothing was said about a partnership. Bayer testified that Binning asked him to get a permit from the U.S. Forest Department; that the talk was that the parties would build a temporary dam, and later a permanent structure; that the parties would build a dam as partners and were each to have an interest in the stored water in proportion to the amount of land which they had under irrigation; that as to the parties who were to have such interest, he mentioned the Smith place, the Decker place, his own place and Coleman's; that the witness asked Binning in 1920 if they had not better file for a "permanent permit"; but that Binning put him off, stated that the times were hard and that they had better put it off for a while. That conversation was denied by Binning, who, on the other hand, testified that he talked with Bayer in the fall of 1921, wanting him to go with him in building a permanent structure, but that Bayer refused. William Bayer further testified that he and Coleman obtained a written, revocable permit from the forestry department, dated January 23, 1919, "for the purpose of construction of temporary log crib and rock dam 6 feet high for the purpose of retarding the flood water for irrigation purposes" at the outlet of Willow Lake immediately below the lake. The permit was in the name of William Bayer and Glenn Coleman, but it was explained that the forest supervisor stated that it made no difference in whose name the permit was. The permit by its terms conferred no right to the use of any water. Glenn Coleman testified that he and Binning and William Bayer had a conversation, or conversations, concerning the building of the dam and obtaining a permit from the forestry department; that Binning stated that "I think we ought to go up and put a dam in the creek to hold back some of the water in the spring"; that the witness agreed to help build the dam; that some one suggested that other parties should be asked to go in with them, and that the plans for building the dam were talked over. P. W. Jenkins testified that in the latter part of February, 1919, he talked with Henry Oakes, who was working at the Smith place, about the dam and reservoir; "Frequently I talked with William Bayer about it, and I had a conversation at times with Burleigh Binning and various ones interested in the reservoir. * * * The substance was that we were going to build the dam in order to impound the water to use on our land during the short season of the year, and we planned to build a rock cribbing dam * * * to construct the reservoir in the cheapest and most efficient manner. * * * Binning and Bayer were to oversee the work. I never went onto the job. * * * The water was to be divided according to the acreage."

The parties commenced the construction of the dam, made of log cribs and rocks, in February, 1919, Binning doing most of the work, but others helping. William Bayer testified that he with a team worked five days in February, one day in May 1919, and did some work in 1920; that the value of his work on the dam during the two years is approximately $ 80.00; that he also helped in hauling rocks, and had a shovel and picks in 1921. He claimed that he helped since 1922, but could not specify any time that he did so except that he had Dan Samora helping in 1927 when the floods threatened to tear out the dam. Glenn Coleman testified that he helped for five days in February, 1919, and had a team and wagon; that he also helped in May, 1919, for one day; in July, 1919, for one day; in the spring of 1920 for one day; he could not tell whether he helped in 1921 or not; but helped...