Condict v. Ryan, 2827
| Decision Date | 03 March 1959 |
| Docket Number | No. 2827,2827 |
| Citation | 335 P.2d 792,79 Wyo. 211 |
| Parties | Aurilla P. CONDICT, as Executrix of the Estate of W. C. Condict, Deceased; Aurilla P. Condict, Maysel H. Condict, Winthrop C. Condict, Jr., and Alden Revelle Condict, as residuary devisees and legatees of Winthrop C. Condict, Deceased; State Board of Control of the State of Wyoming; and L. C. Bishop, as State Engineer, Appellants, (Defendants below), v. Cecil A. RYAN, Appellee, (Plaintiff below). |
| Court | Wyoming Supreme Court |
C. A. Brimmer, Jr., Rawlins, and Frank J. Trelease, Laramie, for appellee.
Before BLUME, C. J., and PARKER and HARNSERGER, JJ.
Appellee's petition for rehearing is advanced upon several grounds. It is said we did not mention and failed to apply § 71-613, W.C.S.1945. This law only became effective February 23, 1921, some five years after the mortgages whose foreclosure gave Condicts title to both lands and reservoir. Although the statute and its application was fully discussed in both brief and argument, it was not deemed necessary to especially mention it when it was decided that by virtue of the condition appended to the permit to construct the reservoir both the reservoir and the waters to be therein impounded were identified with and were appurtenant to the Edwin Ryan lands at the time the mortgages were given in 1916. In consequence, all provisions of the 1921 statute were ineffective as to this question.
The petitioner also claims the interpretation which we gave to the words imposing the condition upon the permit to contruct the reservoir was upon an initial theory not theretofore advanced. The suggestion is somewhat novel when the record shows that the very instrument wherein the condition appears was introduced as a joint exhibit by the contesting parties and was mentioned in the trial court's findings. It was evidence in the case but because of its nature it required an interpretation of its meaning. Although neither side saw fit to assist us in that effort, the court was not disposed to blind itself to what was apparent from that instrument or to give it the meaning which to us seemed obvious.
Petitioner claims the right to show the purported assignment of July 27, 1927, from Edwin Ryan to his brother Cecil was not defective and that the outcome of the appeal should not depend on notice of such purported assignment being given to Condict. Section 4 of Ch. 141, S.L. of Wyoming, 1921, now § 71-615, W.C.S.1945, was in effect on July 27, 1927, and provides:
'All deeds for reservoir water and water rights and all leases of the same for periods of three (3) years or more shall be executed and acknowledged as deeds are executed, and shall be recorded in the office of the County Clerk of the County in which the reservoir is situated and also filed in the office of the State Engineer. * * *'
This statute was violated as the instrument was not executed and acknowledged as deeds are executed and acknowledged. In the light of Frank v. Hicks, 4 Wyo. 502, 35 P. 475, rehearing denied 35 P. 1025, as quoted in the original opinion, it was, therefore, not effective as notice even though it had been filed with the state engineer and erroneously recorded in a county clerk's office. It should be unnecessary to say that at least one primary purpose of such recording was the giving of notice to...
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Diamond Hill Inv. Co. v. Shelden
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Stutzman v. Office of Wyo. State Engineer, 05-126.
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