Chicago, Burlington and Quincy Railroad Company v. McPhillamey

• Decision Date: 06 November 1911
• Docket Number: 655
• Parties: CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY v. McPHILLAMEY
• Court: Wyoming Supreme Court

118 P. 682

19 Wyo. 425

CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY v. McPHILLAMEY

No. 655

Supreme Court of Wyoming

November 6, 1911

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Affirmed.

Lonabaugh & Wenzell and N. K. Griggs, for plaintiff in error.

It is incompetent to prove legal title to land by parol evidence. (Bexer Co. v. Terell, (Tex.) 14 S.W. 62; Benjamin v. Shea, 83 Ia. 392; Lavery v Brooke, 37 Ill.App. 51; Kirkpatrick v. Clark, 132 Ill. 342; Moe v. Chesrown, 54 Minn. 118; Carter v. Pitcher, 87 Hun, 580; Cox v Ward, 107 S.C. 511; Holler v. Richard, 102 S.C. 545; Miller v. R. R. Co., 71 N.Y. 385.) The question was in issue whether the plaintiff had a water right. Parol evidence was not competent to prove such a right, for it is an interest in realty. A right of way granted by the U. S. statutes to a railroad company ceases to be a part of the public lands, and the land department is without authority to convey rights therein. (Ry. Co. v. Townsend, 190 U.S. 267.) If the plaintiff or his grantor secured a ditch right as against defendant he had to do so under the laws in force April 6, 1893. The plaintiff had no right under the U. S. statutes of 1866. A person is not entitled to an easement over public lands for a ditch or reservoir until he has acquired a vested and accrued water right. (Nippel v. Forker, (Colo.) 56 P. 577.) The defendant's right became absolute April 6, 1893. Plaintiff has no easement valid as against the defendant. No such right was pleaded, but had it been, it would be without avail, because an easement cannot be granted by parol. (Pitkin v. R. R. Co., 47 Am. Dec. 320.) The plaintiff had at most but a license at the point in controversy, which was revocable at any time by the defendant. (Howes v. Barmon, (Ida.) 81 P. 48; Great Falls W. Co. v. R. R. Co., (Mont.) 54 P. 943; Hamton v. Laffee, 46 N.H. 505; Hutchens v. Shaller, 32 Mich. 496; Owen v. Field, 12 Allen, 457; Simpson v. Wright, 21 Ill.App. 67; Pitman v. Poor, 38 Me. 237; Lambe v. Manning, 171 Ill. 612; Morgan v. U. S. 14 Ct. Cl. 319; Piper v. Brown, 43 W.Va. 412; Wynn v. Garland, 19 Ark. 23; Wilmington v. Evans, 166 Ill. 556; Johnson v. Skillman, 29 Minn. 95; Olsen v. R. R. Co., 38 Minn. 479; Wilson v. R. R. Co., (Minn.) 42 N.W. 600; Nichols v. Peck, 70 Conn. 439; 18 Ency L. 1140.) Conceding all the evidence introduced against the defendant to be true, the latter did nothing that was not within its rights, for it might, at any time, pursue any course it desired at the point of the ditch in question, and it might have permanently closed or removed the ditch. It was, however, willing to lend its aid to further irrigation purposes, and to that end it expended considerable of its own money at the crossing in question. But that act of the defendant did not render it liable to damages for not doing more in the behalf of plaintiff.

The plaintiff's petition is insufficient because it fails to allege acts on the part of his grantor or by the proper authorities creating a legal water right or ditch privilege. Several of the instructions are erroneous for the reason that they permit a recovery without proper proof of a legal water right in the plaintiff. The 9th instruction, which declares that the employer is liable in damages caused by the wrongful act of an employee while the latter is acting in the course of employment and pursuing the business of his employer, is erroneous, for it omits the requirement that the employee must have been acting within the scope of his employment.

C. L. Sackett, for defendant in error.

The defendant is not in a position to question either the right of possession or the ownership of the ditch by the plaintiff. If the company were permitted to dispute the title of the plaintiff to the ditch it would work a fraud upon him, and allow the company an advantage by permitting it to recognize the plaintiff's title and afterwards escape responsibility by denying such title. The ditch was there before the railroad was there, and about four years before any rights to the land had been claimed by the company. There was abundant evidence to show that the plaintiff's title to the ditch was assented to by the company, and that the company is estopped from disputing such title. (Tynon v. Despain, 43 P. 1039; Miller v. Douglas, 60 P. 722; Dalton v. Rentaria, 15 P. 37; Coventon v. Seufert, 32 P. 508; Campbell v. West, 44 Cal. 646.) In any event the use by the plaintiff of the ditch where it crossed the railroad with the consent of the railroad company was under an oral or implied license, which under the circumstances was irrevocable. (Stoner v. Zucker, 148 Cal. 516; Brew. Co. v. Morton, 47 N. J. Eq., 158; Pierce v. Clelland, 133 Pa. St. 189; Campbell v. R. R. Co., 110 Ind. 490; Messick v. Ry. Co. 128 Ind. 81; Saucer v. Keller, 129 Ind. 475; Nowlin v. Whipple, 120 Ind. 596; Curtis v. Water Co., 20 Ore. 34; Rerick v. Kern, 14 S. & R. 267.) There is nothing in the evidence to show any intention of the company to terminate the license. Even if title was not proven by the best evidence, the error is not prejudicial. The question of title is not involved in the case, for possession alone is sufficient. (Clear Creek v. Kilkenny, 5 Wyo. 38; Golden Gate &c. Co. v. Machine Works, (Cal.) 23 P. 45; Ry. Co. v. Walker, 12 Kan. 601; Everston v. Lutton, 5 Wend. 281; City v. Hill, (Okl.) 50 P. 242; Schwartz v. McQuaid, 214 Ill. 357; Blunck v. Ry. Co., 115 N.W. 1013.) The statutory requirements for water right records are for the regulation of disputes between different appropriators. (9 Wyo. 140; 6 Wyo. 625.) A ditch and a water right may be owned separately. (Long on Irr., Sec. 74; McLear v. Hapgood, (Cal.) 24 P. 788; Clifford v. Larrian, (Ariz.) 11 P. 397; Stocker v. Kertley, (Ida.) 59 P. 891; Sullivan v. Min. Co., 40 P. 709.) The act of Congress of 1866 confers no additional rights upon an appropriator of water, but merely recognizes preexisting rights. (Jennison v. Kirk, 98 U.S. 453; Brodie v. Water Co., 101 U.S. 274; Willey v. Decker, 11 Wyo. 469; Farm Inv. Co. v. Carpenter, 9 Wyo. 110.) And state laws, rather than declaring that water may be appropriated, recognizes the right of appropriation. (Moyer v. Preston, 6 Wyo. 38; Inv. Co. v. Carpenter, supra; Willey v. Decker, supra.)

SCOTT, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

SCOTT, JUSTICE.

The defendant in error brought this action in the court below against the plaintiff in error to recover damages alleged to have been caused by the destruction or interference with his irrigating ditch after the cropping season of 1907, by the plaintiff in error so that for inability to irrigate his land he lost his crop in 1908. The case was tried to a jury which returned a verdict in favor of McPhillamey and judgment was rendered thereon. The company brings the case here on error.

McPhillamey alleged ownership in the company of a right of way for its railroad over the southern portion of the S.E. 1/4 of the S.E. 1/4 of Sec. 18, Tp. 57 N. of R. 84 W. He averred himself to be the owner of the 80 acres adjoining on the south, to-wit: The N.E. 1/4 of the N.W. 1/4 and the N.W. 1/4 of the N.E. 1/4 of Sec. 19. He claims the land owned by him to have been irrigated through a ditch crossing the lands embraced in the company's right of way for more than 16 years prior to the commencement of this suit, and antedating the company's right. He avers the interference and destruction of the ditch where it crosses the right of way by the company in the latter part of 1907, and the loss of crops for the following year by reason thereof. The answer admits the corporate existence of the company, that it is the owner of the right of way and denies generally the other allegations contained in the petition.

There are 45 assignments of error of which numbers 8, 9, 10, 27, 28, 31, 34, 35, 36, 37, and 38 are abandoned in the brief and 39, 40, 41, 42, 43, 44, and 45 are general assignments which are not discussed and are covered by the conclusion reached upon the other assignments here urged.

1. Over the objection of the company McPhillamey was permitted to prove by parol evidence priority of possession and right to use the water and ownership of the ditch and land irrigated thereby. It is contended by the company that oral testimony was incompetent for that purpose as against a general denial and predicates its assignments of error 2 to 7 and 11 to 21 upon such ruling; errors number 26, 27 and 29 are predicated upon the refusal of the court to so instruct; errors number 32 and 33 are predicated upon the giving of instructions number 5 and 8, by which the jury were told in effect that they might consider such oral testimony in reaching their verdict. Each and all of the assignments of error go to the competency of the parol testimony for the purpose indicated and may be considered together.

McPhillamey testified over objection that he was the owner of the land irrigated by the ditch and had been since 1892, when he bought it from Lydia E. Slater; that she was in possession at the time he bought it and that he had occupied and farmed the land either by himself or by tenant ever since. His evidence is uncontradicted. The action was in tort and the possession of the land by McPhillamey having been shown the company claiming no title thereto could not put him on proof of record title. (R. & C. Co. v. Cobb, 94 Ill. 55; 28 A. & E. Ency. L. (2nd Ed.) pages 573 and 574, and cases cited in the foot note.) The bare possession was sufficient as against the company. (Abbott, Trial Evidence, 635; Kellogg v. Valentine, 21 How. Pr. 226; 2 Greenleaf, Ev. Sec. 555; 3 Wait, Actions & Defenses, 20-24; Waterman, Trespass, p. 346, Sec. 909; Todd v....