Campbell v. Wyoming Development Co., 2141

Citation55 Wyo. 347,102 P.2d 745
Decision Date12 March 1940
Docket Number2141,2143,2142
PartiesCAMPBELL ET AL. v. WYOMING DEVELOPMENT CO. ET AL. PULS v. SAME. WALLIS LIVE STOCK CO. v. SAME
CourtUnited States State Supreme Court of Wyoming

55 Wyo. 347 at 407.

Original Opinion of March 12, 1940, Reported at: 55 Wyo. 347.

Rehearing denied.

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

OPINION

ON PETITION FOR REHEARING

BLUME Justice.

A petition for rehearing has been filed herein. In the original opinion we discussed section 122-136, Rev. St. 1931, passed in 1901. That section provides in brief that whenever the board of control adjudicates the water of any stream or other body of water, the parties interested therein must present their claims, or they are barred, provided that if the water of any stream has been previously adjudicated, an appropriator therefrom must make his claim within one year or be barred. We held that plaintiffs, appropriators direct from the Little Laramie River, must be held barred from claiming any right other than that adjudicated in their favor in 1892 by the Board of Control. Counsel for plaintiffs, in their brief on rehearing, state: "If, therefore, the plaintiffs are bound by the rights decreed to them in that adjudication, the Development Company must also be bound, and it has no rights since it did not assert any claims within the year following the enactment of the 1901 act cited in the opinion of the court." Statements to the same effect, but in somewhat different form, are contained in a number of other places in the brief. The ingenuity of counsel seems to have hit upon a new point--at least it has never been put in the way in which it has been put now. A literal interpretation of the statute of 1901, seems at first blush to bear the meaning given it by counsel. Strict logic might lead to the result which they assert. But if we grant that the claim is strictly logical, then we are face to face with what Justice Cardoza has called a paradox of legal science. It has many times been pointed out that a proposition, if carried to its logical extreme, may lead to an absurdity. And we think that this would be true in the case at bar. The ultimate criterion is the intention of the legislature. Let us look at the practical situation. The character of claimants mentioned in the first part of the statute and those mentioned in the proviso are the same, so that we need but inquire as to what claimants are contemplated in the statute. We pointed out in Laramie Irrigation and Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, that the legislature in the eighteen nineties made small appropriations of money for the board of control to adjudicate the water rights in the state, so the Board determined to go slowly and do the best possible under the circumstances. In conformity therewith, it decided that it could not afford to adjudicate all the waters of the Laramie River. It determined to limit itself, and start with one of the tributaries of that river--the Little Laramie. Now if it had been necessary for the appropriators of the main stream--the Big Laramie River--to come in and make their proof of their appropriations, if they wanted any rights in the waters of the Little Laramie, the very thing which the board sought to avoid would have been necessary to be done in order that the rights of appropriators from the main stream might be preserved, thus leading to an absurdity. The Board thought that they could first adjudicate the waters of the Little Laramie, and afterwards the waters of the Big Laramie, which latter would include rights in the Little Laramie. The law of 1901 was not in effect when the adjudication in 1892 was made. But what was done then illustrates the situation. There is no reason to think that the Board was not confronted with similar situations after 1901. In other words, if the contention of counsel is correct, the board had no power, after 1901, to adjudicate any part of a river, no matter how long it might be, but could only adjudicate the waters of a main stream and all its tributaries at the same time, in order to give appropriators direct from the main stream their rights. That is not reasonable, and we do not believe that the legislature when it passed the act of 1901 had that in mind. Hence we think that a more reasonable interpretation of that act is that the claimants therein contemplated are those who have made an appropriation direct from the stream, or part of a stream, which the board has undertaken to adjudicate. That becomes clearer when we consider the language of the proviso in the statute, that, if the board had heretofore adjudicated any stream, the appropriators therefrom should make their claim within one year after the passage of the act. The Development Company was more than an appropriator therefrom. Its appropriation was not so limited. It was an appropriator therefrom and of water from the main stream and its other tributaries which flowed into the main stream above its point of diversion as well. In other words, we may say that it was an appropriator of the water of Little Laramie River indirectly rather than directly, and indirect appropriators were not, it would seem, contemplated by the foregoing statute. In cases in which only the water of a tributary are adjudicated in the sense here mentioned, the appropriators of the main stream should, of course, be given an opportunity to contest the claims of direct appropriators. That opportunity seems to be given by section 122-112, Rev. St. 1931, but since the point is not involved herein, we need make no further comments thereon.

Moreover the Development Company and other appropriators direct from the Big Laramie River--the main stream--did in fact, prior to 1901, make a claim to the waters of the Little Laramie River, when they filed their proof of appropriation with the Board of Control in connection with the adjudication of the waters of the Big Laramie and were given a right therein when the adjudication was made. But here again, counsel want us to adopt a literal construction of a term; they say that the Little Laramie was expressly excluded by the Board from the adjudication then made, and they complain because the court did not admit notices and other statements showing such exclusion, in evidence. The ruling was harmless. We may treat the situation as though these statements were in evidence. Counsel state that in view of such exclusion, "the decree of the Big Laramie stops at the mouth of the Little Laramie River so far as that tributary is concerned." A literal interpretation of some of the statements would, perhaps, lead to that conclusion. One of the statements offered in evidence was a certified copy of an order of the Board of Control "directing that the rights to the use of water from the Laramie River--the rights of which have already been adjudicated--should be adjudicated." One notice offered in evidence stated that "notice is hereby given that the State Engineer * * * will begin the survey and measurement of the ditches diverting water from the Laramie River, and all its tributaries, not heretofore adjudicated." Another stated: "The attention of all appropriators of water from the Laramie River and all its tributaries, except Little Laramie, is hereby called to" the fact that the time for making proof, etc., is set (for a day certain). All notices offered in evidence either related to the measurement of the stream or to the requirement of submission of proof of appropriation. The reason for the course pursued by the Board is plain and is clearly indicated by the first of the above mentioned notices. The Board, as stated in the above mentioned order, had already adjudicated the rights of the Little Laramie. Not a single person who was not a direct appropriator therefrom had filed a claim in that proceeding, or at least had received no award. No intention may, accordingly, be attributed to the Board of permanently excluding the latter from all rights therein. The main thing preceding an adjudication of a stream is to investigate the various diversion works of the different appropriators, determine the date when they were constructed, the capacity thereof, and of ditches, and the amount of water put to beneficial use, and take proofs thereof. All that had already been done, so far as the appropriators direct from the Little Laramie were concerned. It would have been useless to do that a second time. No measurements were necessary to be made along the Little Laramie so far as the appropriators of the Big Laramie were concerned. All the diversion works were located directly on the latter stream. The scope of the exclusion is determined by the reasons therefor and cannot be extended beyond them, as counsel would have us do. In other words, what was meant by excluding the Little Laramie--the tributary already adjudicated--was that the measurements above mentioned would not again be undertaken so far as that stream was concerned, and no further proofs were required to be submitted from the appropriators direct therefrom. It would have been more accurate if the notices had stated that the Little Laramie was excluded in so far as adjudications of that stream had already been made. But a mere verbal inaccuracy cannot have deceived any one. The facts were well known to all appropriators; the reasons for the exclusion must have been clear to all practical irrigators, and hence the scope of the exclusion must have been as apparent to them as it was to the Board. The appropriators direct from the Little Laramie should, it is true, have been given an opportunity to come in and object. But that does not in any way alter what we have already stated. The notices heretofore mentioned related only to measurements and proofs and affected only the...

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