Campbell v. Wyoming Development Co.

• Decision Date: 12 March 1940
• Docket Number: 2141,2143,2142
• Citation: 55 Wyo. 347,100 P.2d 124
• Parties: CAMPBELL ET AL. v. WYOMING DEVELOPMENT CO. ET AL. PULS v. SAME. WALLIS LIVE STOCK CO. v. SAME
• Court: Wyoming Supreme Court

100 P.2d 124

55 Wyo. 347

CAMPBELL ET AL. v. WYOMING DEVELOPMENT CO. ET AL.

PULS v. SAME.

WALLIS LIVE STOCK CO. v. SAME

Nos. 2141, 2142, 2143

Supreme Court of Wyoming

March 12, 1940

Rehearing Denied, 55 Wyo. 347 at 407.

ERROR to the District Court, Albany County; H. R. CHRISTMAS, Judge.

Suits tried together, by Horace W. Campbell and another against the Wyoming Development Company and another, and by William Puls and by the Wallis Live Stock Company against the same defendants, to quiet title to certain water rights in the Little Laramie River and to enjoin defendants from interfering with such rights, wherein the water commissioner's successor was substituted as a party defendant. To review a judgment for defendants, plaintiffs bring error. Rehearing denied May 28, 1940--see 102 P.2d 745.

Affirmed.

For the plaintiffs in error, there was a brief by Corthell, McCollough and Corthell, of Laramie, and oral arguments by Messrs Corthell and McCollough.

These three cases were selected for trial from thirty (30) cases pending in the District Court of Albany County, and are representative of all of the cases which are of a similar nature. All of said suits were brought under the sanction of the decision in Laramie Irrigation and Power Company v Grant, 44 Wyo. 392, to quiet title of the respective plaintiffs to water rights claimed from the Little Laramie River, acquired by the predecessors of plaintiffs by appropriations of flood and overflow waters some sixty years ago. Wyoming Development Company and the Water Commissioner of the District are made defendants. The Development Company as a defense alleged an adjudication of all water rights from the Little Laramie River by the Board of Control in 1892, and also as a defense alleged that water rights from the Big Laramie River and tributaries were adjudicated by the Board of Control in 1903, which adjudication was appealed to the District Court and reviewed, in which the Development Company was awarded a priority as of May 23, 1883, from the Big Laramie River and tributaries for 633 cubic feet per second for 58,813 acres. The Development Company further alleged the sale of 42,615 acres of said lands to sundry purchasers subsequent to said adjudication. Other defenses were set up by the Development Company, which included a general denial and the statute of limitations. Plaintiffs replied admitting the adjudications made by the Board of Control but denied that they were binding upon plaintiffs. The judgment was for defendants and plaintiffs bring the case to the Supreme Court on error. The adjudications of the Big and Little Laramie River were made in separate proceedings, a point admitted by the pleadings of the parties. The record of the evidence is voluminous. Plaintiffs contend that the early use and actual appropriation of flood and overflow waters from the Little Laramie River established prescriptive rights in their favor as against the Development Company, although the plaintiffs relied on and used the appropriations of water found and decreed by the Board of Control from the Little Laramie River in 1892. Plaintiffs' motions for new trials set forth 141 grounds in the Puls case, 127 in the Campbell case and 145 in the Wallis Livestock Company case, which among other things include exceptions taken by plaintiffs to the conclusions of fact and of law rendered by the trial court. Plaintiffs contend that they are not bound by the decrees of the Board of Control, and that the pleadings and proof of defendants are insufficient to establish the defense of res adjudicata. Plaintiffs contend that the courts are open to every person for relief from injuries to property and especially to controversy involving water rights. Article I, Section 8; Article X, Section 6, State Constitution; Section 1, Fourteenth Amendment to the Federal Constitution; Farm Investment Company v. Carpenter, 9 Wyo. 110; Laramie Irrigation and Power Company v. Grant, 44 Wyo. 392. The Grant case was not a controversy between appropriators. The question in that case was whether separate adjudications by the Board of Control on the two streams afforded justification to the water commissioner in regulating diversions on the different streams. Defendants' entire case seems to be rested upon the sacrosanct character claimed for the priority adjudications, which plaintiffs contend involves a question of due process of law. Life Ins. Co. v. Tisdell, 91 U.S. 238; Postal Company v. Newport, 247 U.S. 464; B. & O. R. Co. v. U.S. 298 U.S. 349; Commission v. Pacific G. & E. Co., 302 U.S. 388. The procedure under the Wyoming statute resembles that of the state of Washington construed in Pacific Live Stock Co. v. Lewis, 241 U.S. 440, and in Washington v. Oregon, 297 U.S. 517; see also R. R. Co. v. Minn., 134 U.S. 418; Standard Company v. Farrell, 249 U.S. 571; Tel. Co. v. Los Angeles, 227 U.S. 278; Carter v. Coal Co., 298 U.S. 238. The doctrine was applied in Farm Investment Company case, supra. The general subject of the principles, upon which the doctrine of res adjudicata rests, was discussed at length in State v. District Court, 33 Wyo. 281, and Tibbals v. District Court, 42 Wyo. 214; Padlock Ranch v. Washakie Needles Irr. District, 81 P.2d 410; Henning v. City of Casper (Wyo.) 57 P.2d 1264; Holt v. City of Cheyenne, 22 Wyo. 212; Collard v. Ins. Co. (Ida.) 45 P.2d 288; Large v. Shively (Wash.) 58 P.2d 808; State v. Steiner (Wash.) 109 P. 57. The Board of Control is not a tribunal of general jurisdiction, and being one of inferior jurisdiction, the pleadings and proof of defenses in the present cases were insufficient. Farm Investment Company v. Carpenter, supra; Willey v. Decker, 11 Wyo. 496; Collett v. Morgan, 21 Wyo. 117; Bamforth v. Ihmsen, 28 Wyo. 282; U. S. v. Butler, 297 U.S. 63. The Development Company was not a party to the Little Laramie River adjudication proceedings, and plaintiffs were not parties to the Big Laramie adjudication proceedings. A record of said adjudications is insufficient to support defendants' claim of res adjudicata. Hoover v. Roberts (Kan.) 58 P.2d 83; Yancy v. Denham (Ala.) 99 So. 851; Ry Co. v. Stuckwish (Okla.) 279 P. 683; Daiss v. Hanes (Colo.) 277 P. 5, 7. Nothing is taken for granted in the proceedings of a tribunal of inferior jurisdiction. Smith v. Nesbitt (Tex.) 235 S.W. 1104; Mason v. Ruby (Idaho) 204 P. 1071; Jensen v. Ball Co. (Ida.) 216 P. 1033; Willits v. Walter (Ore.) 52 P. 24. Defendants did not comply with Section 89-1036, R. S. in their pleading. Lusk Lumber Company v. Producers Consolidated, 35 Wyo. 381; Harmon v. Cattle Co. (Mont.) 23 P. 470; McLaughlin v. Reichenbach (Colo.) 122 P. 47; 4 Wigmore on Evidence 2108. Defendants did not plead or prove the judgment roll as required by Section 89-2611, R. S. Decisions of the Board of Control are subject to judicial review. Art. VIII, Sec. 2, Constitution. The adjudications by the Board of Control are governed by Laws 1890-1891, Chapter 8, which provide a method of substituted service open to serious criticism. Roller v. Holly, 176 U.S. 398. The determination by the Board is limited by priorities of right to the use of water. Sec. 122-117, R. S. Provision is made for co-ordinating separate adjudications of water of different parts of a stream. Sec. 122-137, R. S. The Board decrees relied upon are inconsistent, unintelligible and inconclusive as evidence of the facts therein stated. The decree in the Big Laramie and Sybille proceedings found that water had been applied by the Development Company to 32,700 acres, and a reasonable time for completing application to additional lands is allowed. The Little Laramie adjudication exhibits the primitive crudity to be expected in the first experimental decree of the Board, and does not purport to be final. It is impossible to apply the decree on the Little Laramie River during high water. The findings of the trial court are in conflict with the decision in Irrigation Company v. Grant, supra. Appropriations of water may be made without notice in the absence of prohibitive enactments. Whalon v. North Platte Canal Co., 11 Wyo. 313; Moyer v. Preston, 6 Wyo. 322; Beaver Brook Co. v. Res. Co. (Colo.) 40 P. 1066; River Co. v. Angiola W. Co. (Cal.) 86 P. 1081; Patterson v. Ryan (Utah) 108 P. 1118; Morris v. Bean, 146 F. 423; In re Crab Creek (Wash.) 235 P. 37; Ranch v. Packing Co., 33 Wyo. 14. Appropriation consists of three elements: (1) intent, (2) diversion, (3) beneficial use. All of these are established by the record in this case on behalf of plaintiffs. An appropriation may be made without constructing a ditch. Thomas v. Guiraud, 6 Colo. 530; Hagie v. Lincoln Land Company, 18 F.Supp. 637; Snyder v. Colorado Gold Dredging Co., 181 F. 62; Simons v. M & P Co. (Cal.) 192 P. 144; Steptoe Livestock Co. v. Gulley (Nev.) 295 P. 772. Plow furrows have been held sufficient with application of the water to beneficial use to constitute an appropriation. Water Co. v. Jones, 39 F.2d 37. Pumping from a stream is sufficient. Charnock v. Higuerra (Cal.) 44 P. 171. Checks and levees have been held sufficient. Turner v. Canal Co. (Cal.) 99 P. 520. Overflow of high water has been held sufficient. Masterson v. Pacific L. S. Co. (Ore.) 24 P.2d 1046. Beneficial use is recommended as the basis of the right. Paxton Company v. Farmers' Co. (Nebr.) 64 N.W. 343; Platte Water Co. v. Northern Colo. Irr. Co. (Colo.) 21 P. 711; Wyo. v. Col., 259 U.S. 419. The statutory limitation of one cubic foot per seventy acres seems inadequate to the situation presented in the testimony. The evidence established and the court found that plaintiffs and their predecessors had used and applied overflow water to their lands for more than fifty years prior to July, 1932, during which time defendant company experienced a shortage in the supply of water...