Bower v. Big Horn Canal Ass'n, 2747

• Citation: 77 Wyo. 80,307 P.2d 593
• Decision Date: 26 February 1957
• Docket Number: No. 2747,2747
• Parties: Ray F. BOWER, Plaintiff and Respondent, v. BIG HORN CANAL ASSOCIATION, a Wyoming Corporation, Defendant and Appellant.
• Court: United States State Supreme Court of Wyoming

Page 593

307 P.2d 593

77 Wyo. 80

Ray F. BOWER, Plaintiff and Respondent, v. BIG HORN CANAL ASSOCIATION, a Wyoming Corporation, Defendant and Appellant.

No. 2747.

Supreme Court of Wyoming.

Feb. 26, 1957.

Goppert & Fitzstephens, Ernest J. Goppert, Cody, for appellant.

Elmer J. Scott, Worland, for respondent.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiff, Ray F. Bower, is the owner of some 569 acres of land sloping downward from the Big Horn Canal to the Big Horn River, all irrigable and part of it so seepy as to interfere with farming operations. The seepage water, all originating from the defendant's canal, is in part a normal residual from the irrigation process and in part a seepage directly from the canal. This latter has materially increased in the past three years, since the construction of the Boysen Dam lessened the silt in the canal water. Plaintiff sought to improve the boggy condition by constructing on his farm land drains which emptied water into a Joint Ditch situate between his property and that of a neighbor and leading to the Big Horn River.

He conceived the idea of utilizing this drainage water by reversing its flow, backing it up to a sump, pumping it into a ditch (designated as 'Bower Ditch' in Plaintiff's Exhibit No. 1), which ran in a northerly direction below and parallel to the canal, to a second sump, and from there pumping it through a steel pipe flume up across the canal to certain arid lands, in part owned by him in fee and in part acquired by desert entry.

On October 6, 1952, he filed with the State Engineer an application to appropriate this water for the land on which he planned to use it. On October 18, 1952, the State Engineer granted the permit subject to the following limitations and conditions.

'This permit grants only the right to use the surplus water of the stream when all prior rights are satisfied.

'This permit is granted insofar as the State Engineer has authority to grant a permit for appropriation of water from this source.'

Later, plaintiff dug a ditch (designated as 'Bower Drain' in Plaintiff's Exhibit No. 1) below and parallel to the canal, running in a southerly direction and emptying into the second sump above mentioned.

On July 27, 1954, after this ditch had been constructed, he filed an application for permit covering an unnamed ditch (identified in the testimony as the 'Bower Drain' and hereinafter so designated), stating the use as 'supplemental irrigation supply for lands irrigable under the Bower Ditch,' and listing the source of the proposed appropriation as the 'Bower Drain.' Simultaneously, he filed an application for '[No. 1] Enlargement of the Bower Ditch,' listing the source of the proposed appropriation as the 'Bower Drain' (the same as in the unnamed ditch). ¹ Both of these later applications showed the same source, the same point of diversion, and identical irrigable acreage. Moreover, such acreage was exactly the same as that covered by the application of October 6, 1952, except that 2.1 acres had been added to each of the last two applications. Plaintiff's purpose in the multiple applications is unclear to us despite some explanation given by him at the trial, but we are not able to agree with defendant's unsupported claim that rejection of the latter applications rendered the first permit invalid. It is, however, evident that, confused and overlapping as his applications were, Bower intended to secure water from two different sources, (a) that which seeped into ditches paralleling the canal, and (b) that drained from his farm land. In any event, the stipulated evidence received on the motion for new trial shows that both of the later applications were pending at the time of the judgment in this case in the trial court and were rejected by the State Engineer on May 5, 1955, each carrying the identical notation (except for the word 'not,' herein italicized, which is omitted in the 'Bower Drain' rejection):

'Application proposes to appropriate water that has not left the boundaries of an irrigation project for which an appropriation has not been granted in which instance same is not subject to appropriation under Wyoming laws.'

Defendant was willing that plaintiff use the water he drained from his irrigated premises on other lands for which he had an appropriation but was unwilling either that he be granted rights to water derived from the ditches which paralleled the canal or that he have any rights to water drained from his irrigated lands if it be taken to arid land for which there was no appropriation. Accordingly, defendant by its superintendent 'took out' the steel pipe flume which plaintiff had placed over defendant's canal--whereupon plaintiff brought the present action to condemn a right of way for the flume.

Defendant resisted the action, its philosophy, as expressed in its answers and testimony, being substantially as now urged in this court:

(1) Plaintiff had no valid water right under Wyoming law.

(2) Without a valid water right no eminent domain or condemnation for irrigation purposes was legal or proper.

(3) The taking of waste, seep, or percolated waters from drain ditches which gather the same from lands served by an irrigation canal and system and pumping the same to lands outside of the irrigated area diminishes the quantity of water available for the lands to which it was adjudicated and is detrimental thereto and against the public good.

Defendant also filed a cross petition claiming actual damages because of the trespass on its land. Such damages to defendant's property were stipulated by the parties to be $100.

The court, after hearing the evidence, found that plaintiff was entitled to a right of way (which would not interfere with defendant's construction or operation of the canal) across defendant's canal right of way for the purpose of constructing and maintaining a pipeline to transport water for irrigation purposes to be used in reclaiming lands lying above defendant's canal; that defendant was entitled to damages in the amount of $100, as stipulated; that the proceedings for condemnation were regular; that there existed an immediate necessity for said right of way; that defendant's canal right of way extended seventy-five feet on each side of the center line of the canal and that plaintiff's construction thereon of his ditch was improper and should be restrained; that the damages accruing from the construction of the ditch and drain were speculative and no damage by reason thereof had occurred to the date of the judgment.

The court by its judgment accordingly awarded plaintiff the right of way across defendant's canal, decreed $100 costs to the defendant for actual damages, and enjoined plaintiff from maintaining any part of his 'supply ditch' on defendant's right of way. Although the question of plaintiff's depletion of the canal water and his interference with its transportation was not directly passed upon by the court, it was indirectly determined by the judgment disposing of defendant's cross petition, wherein defendant had claimed that plaintiff by his drain and gathering system increased the percolation and seep from defendant's canal, imperiling the canal, and causing a shortage of defendant's water. The trial court's general finding for plaintiff and against defendant allowed plaintiff the right of way and, if unreversed, holds the October 6, 1952, application to be valid.

The evidence adduced at the trial is not in substantial conflict. The water which formerly drained from plaintiff's land to the Big Horn River through the Joint Ditch was variously stated to be 1/2 to 1 1/2 c. f. s., but all witnesses agreed that it was seepage from lands irrigated from the canal; and there was no evidence to substantiate the implication that the using of this seepage would have any effect upon the water in the canal. The amount of water which plaintiff proposed to take across defendant's canal in the pipe was substantially more than the amount formerly carried to the river in the Joint Ditch, which fact points up the possibility of defendant's water being diminished but leaves much to be desired as far as proof is concerned.

It is unclear whether or not the water seeping into the 'Bower Ditch,' '[No. 1] Enlargement of the Bower Ditch,' and the 'Bower Drain' will actually take water from defendant's canal. The parties seem to be in disagreement on this subject, and no indisputable evidence was presented by either party to show the true situation. Nevertheless, this lack of evidence is unimportant in the determination of this cause since:

(1) Plaintiff's application of October 6, 1952, was, on its face, limited in source to the drainage ditch; and the permit could have carried no rights to water which seeped into the 'Bower Ditch'; and

(2) Plaintiff's permit applications for the '[No. 1] Enlargement of the Bower Ditch' and for 'Bower Drain' were both rejected by the State Engineer. The record, by stipulation, contains a copy of an appeal from the rejection of enlargement but shows no perfection of such appeal and contains no action following the rejection of the drain. Thus, as far as this court is concerned, both of these applications stand rejected.

Defendant in its brief and in the argument on the appeal from the judgment has refrained from contesting the $100 allowance for actual damages by reason of the construction of the pipe and has freely admitted that the true reason for its resistance to plaintiff's demand is the alleged depletion of the water supply in the canal by plaintiff's action and the detrimental precedent which would be set by permitting the use on lands outside the irrigation district of water which seeps from defendant's canal.

Although some six errors are charged to the trial court, defendant in his brief states that 'these formal exceptions can be consolidated for presentation to the court under three points.' Accordingly, we shall discuss only...