Collett v. Morgan
| Decision Date | 09 December 1912 |
| Docket Number | 704 |
| Citation | 21 Wyo. 117,128 P. 626 |
| Parties | COLLETT ET AL. v. MORGAN |
| Court | Wyoming Supreme Court |
Opinion modified and rehearing denied January 29, 1913 Reported at: 21 Wyo. 117 at 123.
ERROR to the District Court, Uinta County; HON. DAVID H. CRAIG Judge.
The material facts are stated in the opinion.
Reversed.
T. S. Taliaferro, Jr., and W. A. Muir, for plaintiffs in error.
The property right of a ditch owner cannot be taken from him by any decree or order of the State Board of Control, nor can such owner be divested of his property in the ditch except in the manner provided by law and upon the payment of just compensation. The Board of Control has no jurisdiction to determine conflicting claims to the ownership of an irrigating ditch. (Hamp v. State, 118 P. 653; C. B. & Q. R. Co. v. McPhillamey, 118 P. 682.) The Board of Control specifically found that there had been no abandonment of the ditch on the part of Nina V. White or her successors in interest, the finding in that particular reciting that all of the parties had used the ditch in proportion to their respecive needs. It is clear that the board and court erred in denying a certificate of appropriation to the plaintiffs in error. Their right to use the ditch was clearly established, as well as the fact of the use of the water by them and their predecessors in interest.
J. H. Ryckman, for defendant in error.
No questions of law appear to be involved, and all the issues of fact were found by the Board of Control and by the District Court in favor of the defendant in error. The findings are sustained by abundant evidence, and ought not, therefore, to be disturbed by this court. There is no such thing as a water right without a ditch through which to conduct the water, and when the board found that the defendant in error had a water right, it follows that it also found that the water was diverted where the defendant in error claimed he had diverted it. While the board does not try and determine the title to lands or rights of way or easements, it does adjudicate water rights, and, therefore, must necessarily determine everything incidental thereto. The irrigation of the land of plaintiffs in error was not constant, but intermittent and spasmodic, and the board very properly found that they were not entitled to a water right.
This case comes to this court from a decision of the District Court of Uinta County affirming the order and findings of the Board of Control in the following cases, viz: William Morgan Sr., contestant, v. Sylvester Collett and T. K. Collett, contestees; William Morgan, Sr., contestant, v. Fred Roberts, contestee; and T. K. Collett, Sylvester Collett and Fred Roberts, contestants, v. William Morgan, Sr., contestee; and involving the adjudication of the rights of the appropriators of the waters of Bear River and its tributaries, made by said board December 21st, 1908. The facts out of which the several contests arose being substantially alike, they seem to have been considered together by the board and a single order made covering all of them, and were submitted on appeal to the District Court in the same way and are so submitted here. The evidence was taken before Pitt Covert, a superintendent of one of the water divisions of the state, and submitted in writing to the board and to the District Court. The facts as shown by the evidence are substantially as follows: In 1888 Nina V. White procured by purchase the right of way for and constructed the North Cokeville Ditch, which is the ditch in question in this case, and in the same year by means of said ditch conducted water upon and made final proof of her desert entry, consisting of the SE 1/4 of the SE 1/4 of Section 6, and the E 1/2 of the NE 1/4 of Section 7, in Township 24 North of Range 119 West, in Uinta County. In the same year she filed in the office of the County Clerk of Uinta County her statement and claim of appropriation of water through and by means of said ditch for the irrigation of said lands, according to the law then in force. In the same year she conveyed to one Tanner one acre of said tract, which he irrigated from that time up to 1901, using said ditch for that purpose. In 1890, White gave Sylvester and T. K. Collett permission to use the ditch to irrigate lands lying north of the White lands. Little, if any, of the White tract, except the Tanner acre, was irrigated between 1888 or 1889 until about 1897, when one Stoner rented it, fenced it and used it for a pasture, using the ditch for watering his stock and at times turning water on a portion of it. It was so used by him for several years. In 1901, Kinney purchased the White tract, irrigated and cultivated it, using the ditch and the water therein for that purpose each year thereafter until 1906, when he sold to Sylvester and T. K. Collett and Fred Roberts, who...
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