Buskirk v. Red Buttes Land and Live Stock Company
| Decision Date | 01 May 1916 |
| Docket Number | 821 |
| Citation | 156 P. 1122,24 Wyo. 183 |
| Parties | VAN BUSKIRK v. RED BUTTES LAND AND LIVE STOCK COMPANY |
| Court | Wyoming Supreme Court |
Rehearing Denied October 23rd, 1916, Reported at: 24 Wyo. 183 at 203.
ERROR to District Court, Albany County; HON. V. J. TIDBALL, Judge.
Action by James P. Van Buskirk against the Red Buttes Land and Live Stock Company. Judgment for defendant and plaintiff brings error. The facts are stated in the opinion.
Reversed and remanded.
Cassius M. Eby, for plaintiff in error.
The rights of the parties have been adjudicated by the Board of Control, a fact admitted by the pleadings. Defendant in error has violated the rights of plaintiff, as fixed by said adjudication; the trial court erred in giving instructions Nos. 1 and 2 which in substance informed the jury that plaintiff having failed to call upon the water commissioner to distribute the water before bringing suit is without right to maintain this action and the jury was directed to return a verdict for defendant. Water commissioners exercise police authority; the water commissioner law does not deprive appropriators of the right to seek their proper remedies in the courts. (Farm Investment Company v. Carpenter, 9 Wyo. 128.) The point was raised and decided in the case of Stoner v. Mau, 11 Wyo. 397-400, and in the case of Ryan v. Tutty, 13 Wyo. 129-130. Where it was contended that failure to appeal from a ruling made by a water commissioner in distributing water among appropriators cut off the right to proceed in the courts, which doctrine was rejected by this court. The same rule has been established in Colorado. Under a similar statute the Nebraska court held that commissioners have no right to adjudicate rights, but to merely exercise police power in distribution. (Crawford v. Hathaway, 67 Neb. 325, 93 N.W. 781.) The doctrine has the support of the Supreme Court of the United States. (Montezuma Canal Co. v. Smithville Canal Co., 218 U.S. 385-6, 54 L.Ed. 1079-80.) Judicial power is vested in the courts. (Bondy Sep. Gov. Pow. 31; State v. City, 14 Ill. 420; Kilbourn v. Thompson, 103 U.S. 188, 26 L.Ed. 378.) The instructions are erroneous under any conceivable facts proven under the issues. (Downing v. State, 10 Wyo. 373.)
Corthell, McCullough & Corthell, for defendant in error.
If the instructions would be correct under any evidence that might be admitted under the issues, the appeal must fail as the proceedings in error are predicated entirely upon instructions numbered 1 and 2. (Wallace v. Skinner, 15 Wyo. 233-251; Downing v. State, 10 Wyo. 373; Chosen Friends v. Otterson, et al., 7 Wyo. 89, 209 F. 31, 219 F. 547.) It is necessary that the bill show the materiality of the charge complained of and not merely that it was wrong as an abstract proposition. (Jones v. Buckell, 104 U.S. 554.) The record does not present the errors complained of in a form sufficient to justify a reversal. It will be observed that there is no allegation that there is a sufficient supply of water in the streams involved to satisfy appropriations of the defendant which are admitted prior to those of plaintiff, hence, it is not shown that there was water at any time to which plaintiff was entitled to take. It is not shown that defendant took water which plaintiff was entitled to take. In this view of the case any errors which may have occurred would become immaterial. (Pardee v. Kuster, et al., 15 Wyo. 368; Collins v. Twin Falls Co., 152 P. 203.) The Board of Control is vested with very broad powers in the supervision of waters and their appropriation, distribution and diversion. (Const. Art. 8, Sec. 1, et seq.) Adjudications by the Board are conclusive. Water commissioners are authorized to regulate the use of water and an appeal lies from the commissioners' action, (Secs. 801, 802 and 805, Comp. Stats. 1910), and penalties are imposed for interference with commissioners acting in discharge of their duties. Administrative officers execute the judgment of the Board of Control. (Parshall v. Cowper, supra.) Supervision by commissioners has been provided in the interest of economy and prompt action. (Ryan v. Tutty, 13 Wyo. 129-130; Hamp v. State, 19 Wyo. 377; McLean v. Canal Co., 98 P. 20.) It was the intention to restrict the authority of the courts in these matters after the question had been adjudicated by the Board. (Farm Investment Co. v. Carpenter, 9 Wyo. 140-145.) In Montezuma Canal Co. v. Canal Co., 218 U.S. 385, the Supreme Court of Arizona held that the appointment of a water commissioner trenched upon the legislative power to provide administrative machinery, etc., and in reversing the decision the United States Supreme Court held that the matter was one within the legislative power, but upheld the decree of the trial court on the ground that the legislature had failed to act. Counsel for plaintiff has misinterpreted the scope of the above decision. The case of Stoner v. Mau involved partnership rights in the ditch, but not in the water of the stream and hence is not in point, as it was there held that the statutory remedy did not apply to the facts of the case, nor afford relief to which the complaining party was entitled. Courts are not permitted to interfere with rulings of the Interstate Commerce Commission, a body similar to our State Water Board. (Texas Railroad Co. v. Oil Co., 204 U.S. 426-435-448; U. S. v. Nav. Co., 228 U.S. 87, 106; Mitchell Coke & Coal Co. v. Pa. R. R. Co., 230 U.S. 247, 249; Baltimore R. R. Co. v. U.S. 215 U.S. 481; Tex. & P. R. R. Co. v. Lumber Co., 234 U.S. 138, 146; Simpson v. Shepard, 230 U.S. 352.) Other illustrations are found in cases under the Federal Hours of Service Law, (N. P. R. R. Co. v. State, 222 U.S. 370), and the Federal Employers' Liability Act, .) The principle was applied in Wisconsin under a statute empowering the county board to change town boundaries and to apportion indebtedness, etc. (Town v. Town, 137 Wis. 281.) It has been observed with respect to state land boards in Wyoming; (Cooper v. McCormick, 10 Wyo. 379, 410; Baker v. Brown, 12 Wyo. 198, 205); also to rulings of the Board of Custom Appraisers. (U. S. v. American Express Co., 177 F. 735.) Statutory remedies for violations of copyright held to be exclusive; (Globe Co. v. Walker, 210 U.S. 366, 367), and as to drainage district; (Smittle v. Haag, 140 Ia. 492), as to a case under the Workmen's Compensation Law; (State v. Clausen, 117 P. 1101, 1118.) In Parshall v. Cowper (Wyo.) 143 P. 302, this court indicated that water commissioners are not subject to control by the courts when acting within administrative discretion. The petition did not state facts sufficient to constitute a cause of action at common law.
Cassius M. Eby, in reply.
The allegations of pleadings should be liberally construed. In Pardee v. Kuster, 15 Wyo. 369, cited by counsel an exception to the pleading had been taken in the court below; the point involved there was not a defective statement of cause of action, but a showing of no cause of action. Failure to demur or move for a more specific statement waives the defect. (Anderson v. Thompson, 88 Ind. 405; Farmers' Bank v. Orr, 25 Ind.App. 71.) There is no presumption that the instructions were given on evidence. (Willis v. Fire Co., 137 P. 761; Garver v. Garver, 121 P. 165; McDonald v. Challis, 128 P. 570; Downing v. State, 11 Wyo. 86; Clausen v. State, 21 Wyo. 505.) The commissioners' duties are merely administrative; the analogy attempted as between the functions of a sheriff and a water commissioner is without merit. The case of Ryan v. Tutty cited by counsel does not apply to the facts in the present case. The case of Tex. P. v. Oil Company, 204 U.S. 426, in no way sustains the contention that courts have no authority to entertain an action for alleged violations of an adjudicated right. L. & N. R. Co. v. Cook Brewing Co., 223 U.S. 71, is against the contentions of plaintiff in error, as is also Danciger, et al. v. Wells, Fargo & Co., 154 F. 379. The Washington Compensation Law takes away the power of the courts and supplies an exclusive remedy. The right to litigate matters in a court before a jury cannot be lightly taken away. (Cooley Const. Limitation, Sec. 410.)
POTTER, CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., did not participate in the decision.
This action was brought in the district court by the plaintiff in error, James P. Van Buskirk, against The Red Buttes Land and Live Stock Company, a corporation, defendant in error, for the recovery of damages for the alleged wrongful diversion of the waters of Five Mile Creek and Willow Creek, in Albany county in this state, during the years 1910, 1911 and 1912 to the injury of the plaintiff as an appropriator thereof for irrigation purposes, and also for an injunction to restrain the alleged wrongful diversion in the future. The petition contains three causes of action for damages for the alleged wrongful diversion during the years aforesaid respectively, and a fourth cause of action for an injunction. The cause was tried to a jury upon the first three causes of action resulting in a verdict for the defendant under the instructions of the court, and a judgment was thereupon rendered in the action that the plaintiff take nothing and that the defendant...
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