Bruegman v. Johnson Ranches, Inc., s. 4265 and 4266

• Decision Date: 01 April 1974
• Docket Number: Nos. 4265 and 4266,s. 4265 and 4266
• Citation: 520 P.2d 489
• Parties: John G. BRUEGMAN, Appellant (Contestee below), v. JOHNSON RANCHES, INC., Appellee (Contestant below). Jack LOOMIS, Appellant (Contestee below), v. JOHNSON RANCHES, INC., Appellee (Contestant below).
• Court: Wyoming Supreme Court

Page 489

520 P.2d 489

John G. BRUEGMAN, Appellant (Contestee below), v. JOHNSON RANCHES, INC., Appellee (Contestant below).

Jack LOOMIS, Appellant (Contestee below), v. JOHNSON RANCHES, INC., Appellee (Contestant below).

Nos. 4265 and 4266.

Supreme Court of Wyoming.

April 1, 1974.

W. H. Vines, Jones, Jones, Vines & Hunkins, Wheatland, for appellants.

D. N. Sherard, Wheatland, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.

Mr. Justice McEWAN delivered the opinion of the court.

Appellee, Johnson Ranches, Inc., filed petitions for declarations of abandonment of certain water rights of appellants Bruegman and Loomis based upon the grounds of nonuse. ¹ Appellants have each appealed from the respective judgments of the district court which affirmed orders of the State Board of Control granting appellee's petitions for abandonment. ²

The appellants' predecessors acquired the lands to which the water rights applied through operation of an Act of Congress commonly known as the Carey Act. The Federal Act granted an additional one million acres, described as desert lands, to the State of Wyoming provided they were reclaimed (irrigated). In §§ 36-83 through 36-123, W.S.1957, the State accepted the conditions of the Carey Act and provided for its implementation. Pursuant to the statutes the State entered into a contract with the North Laramie Land Company, appellee's predecessor, whereby the Company agreed to construct a system for the irrigation of its own lands together with those lands segregated under the Carey Act and presently owned by appellants. It constructed a rather large complex of irrigation facilities consisting of reservoirs and canals. The appellants' predecessors entered into a contract with the North Laramie Land Company under which they were to acquire the means to irrigate their lands, together with an interest in all dams and irrigation works. They concurrently made application to the State Board of Control for a permit to appropriate water. The lands were reclaimed and patents were issued by the United States to the State of Wyoming which in turn issued pattents to the settlers, who were the appellants' predecessors.

The appellants contended that the Board of Control acted in excess of its powers and its decisions were not in conformity with law in that, as an administrative agency, it could not terminate a contract right to water.

The appellants conceded there was substantial proof they had not beneficially applied water to their lands during the statutory five-year period required for abandonment, and they did not contend that the Board's decisions were procured by fraud or that its actions were arbitrary, capricious or characterized by abuse of discretion. Their sole argument was that the Board had no power to determine the abandonment issue because the water rights in question arose through a contract.

They would have us hold that these water rights are somehow different from other water rights because the lands to which they applied were acquired through the Carey Act. While the lands were acquired under the distinct provisions of the Act, the water rights in question were obtained in the usual fashion and are no different from any other water right. The Carey Act Lands statutes provided that the application for a permit to appropriate water should be prepared in conformity with the usual statutory provisions, § 36-96, W.S.1957, and provided that water rights to all lands acquired under the provisions of the Carey Act Lands statutes attached to and became appurtenant to the land as soon as title passed from the United States to the State, § 36-114, W.S.1957. The Wyoming Constitution, Art. 8, § 1, provides that the water of all natural streams, springs, lakes or other collections of still water within the State are the property of the State. The waters in question are from sources within these constitutional classifications and are therefore subject to appropriation and, likewise, abandonment.

On June 16, 1967 the appellee entered into an agreement with the State of Wyoming, Wyoming Game and Fish Commission, to sell to the State the North Laramie Land Company No. 3 reservoir. The appellants contended that under the terms of the agreement entered into between their predecessors and the North Laramie Land...