Farm Investment Company v. Gallup

• Decision Date: 24 May 1904
• Citation: 76 P. 917,13 Wyo. 20
• Parties: FARM INVESTMENT COMPANY v. GALLUP ET AL
• Court: Wyoming Supreme Court

76 P. 917

13 Wyo. 20

FARM INVESTMENT COMPANY v. GALLUP ET AL

Supreme Court of Wyoming

May 24, 1904

ERROR to the District Court, Johnson County, HON. JOSEPH L. STOTTS Judge.

The material facts are stated in the opinion.

Reversed.

Alvin Bennett, for plaintiff in error.

In taking its mortgage the plaintiff in error had a right to rely upon Section 1340, Revised Statutes of 1887, providing for the filing of statements of claims to water rights. It was under no obligation to look for other record as to ditch or water rights belonging to the land covered by its mortgage, and it had no other source of information. The mortgage from Snider to Bacon, under which the defendants in error Gallup claimed title, covered only so much of the ditch in controversy as was necessary for use upon or appurtenant to the land conveyed. Such is the only construction possible to be placed upon the words in the mortgage describing the interest conveyed.

The defendants Gallup are entitled only to the rights possessed by their predecessor, Carpenter, and the latter conceded in her answer two cubic feet to the plaintiff for the land claimed by it, and the present defendants are bound thereby. (20 Ency. Pl. & Pr., 1061.) The defendants Gallup were not entitled to affirmative relief granted by the judgment, for they were not in possession of that portion of the ditch in controversy running through the land owned by the plaintiff hence an action to quiet title to such portion of the ditch could not be maintained. (R. S., Sec. 4104.) The action was to quiet title of the plaintiff in and to its alleged water right, and the affirmative relief asked by the defendants was not germane to the relief sought by the plaintiff.

Parmelee & Hill, for defendants in error, Gallup, Gorgen and Fischer.

The county records respecting the particular tract of land owned by the plaintiff disclose nothing as to the ditch belonging to it, and the records respecting the ditch in controversy contain no description of the land irrigated from it. But, if true that the record of ditch statement would be notice of existing rights at the time when made, it cannot take precedence of the record of the subsequent transfer. The use of water on the land of plaintiff from the ditch in controversy is admitted, but the right to such use is denied by the answer of defendant. The occasional, spasmodic and permissive use of water through the ditch through no new appropriation, and too short of duration to ripen into a prescriptive right, falls short of the dignity of an admitted water right. Having parted with his right in the ditch Snider and his successor, the plaintiff, had no means of conveying any water, which is essential to the maintenance of a water right. (McPhail v. Forney, 4 Wyo. 556.) The description of the interest in the ditch conveyed by the mortgage under which the plaintiffs claim can only be construed as a sale and conveyance of the entire interest owned by the mortgagor, Snider, in the ditch described. No words are used which can be given a restrictive meaning. The statement with reference to the use of the ditch is to be understood as a statement of the mortgagor that all his interest in the ditch was necessary for the irrigation of the land described in the instrument.

The testimony fails to show that the ditch is capable of irrigating more than the land of defendant, and hence the position of plaintiff fails, for lack of proof, to show that it acquired any interest in the ditch. Moreover, the plaintiff being the claimant of a residuary interest by grant from Snider, the mortgagor, is in privity with him, bound by his deed, and is estopped, not only by the express grants, but by the recitals therein. (11 Ency. Law (2d Ed.), 400.)

The defendants Gallup are not bound by the answer of Mrs. Carpenter, whom they succeeded. While it is true that a substituted party usually takes the place of the original party, and that no new pleadings are necessary, still as an original party it would not be bound by admissions of a former answer on the filing of an amended one by leave of the court; so the defendants, having filed their own answer upon leave granted, are not bound by any former answer. If the mortgage from Snider to Bacon was admissible for any purpose, there was no error in admitting the same, even though the defendants might not be entitled to affirmative relief. A decree which quiets the use of water in the defendants, instead of the plaintiff, is clearly germane to the relief sought by the plaintiff. (Bartholemew v. Luth. Cong., 35 Ohio St. 567.) The court having acquired jurisdiction, will retain it to do full justice between the parties and prevent future litigation concerning the rights involved. There is nothing in the record which shows that the defendants were not in possession of the entire interest in the ditch claimed by them, and nothing is to be presumed against the correctness of the judgment appealed from.

The grant of a ditch carries with it the water right without special mention. (Williams v. Harter (Cal.), 53 P. 406; McPhail v. Forney, 4 Wyo. 556.) A water right may be sold separate from the land. (Frank v. Hicks, 4 Wyo. 502; McPhail v. Forney, supra.) There is an entire failure of proof that the mortgagor's interest in the ditch carried any more water than was necessary for the irrigation of the land of defendants. It may be true that one appropriator, having a sufficient water right to irrigate all his land, and actually enjoying that privilege, cannot, as against subsequent appropriators, acquire a right to an additional amount of water for the same land; but it is conceivable that the owner of such franchise may with entire propriety purchase the right of an earlier appropriator and thus acquire a valuable privilege, and, though he might not receive a right to use any more water than he was originally entitled to, his priority would be advanced to a higher rank. But if it were a fact that the defendants or their grantors had a sufficient water right and were thereby prevented from having a title to the water of the mortgagor, it does not rest with the latter or his privies to deny the efficacy of the grant. A subsequent appropriator might urge such a matter, but not the grantor himself. (Ins. Co. v. Corey, 31 N.E. 1095.)

Abandonment of a water right results from any unequivocal act of the claimant showing the intent to relinquish without the purpose of reclaiming. (Pomeroy Riparian Rights, Sec. 89; Long on Irr., Secs. 83, 86, 87; Smith v. O'Hara, 43 Cal. 371.) And there can be no more complete or positive proof of a relinquishment than a deed solemnly executed and acknowledged.

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

This action was brought by the plaintiff in error in the District Court sitting in the County of Johnson for the purpose of having its alleged right to the use of certain of the waters of French Creek quieted, and having said right adjudged superior and prior to the rights of the several defendants. The original defendants were Mary L. Carpenter, Juliet H. Taylor, Verling K. Hart, Fred W. Foster, Alice S. Rapelyea, John A. Fischer, Robert Foote and Peter Gorgen. Previous to the trial Warren Gallup, James D. Gallup and Garret B. Gallup were substituted for Mary L. Carpenter, they having succeeded to her interest in the subject of the controversy.

Answers were filed by all the original defendants, with the exception of Alice S. Rapelyea, and, after their substitution, in the place of defendant Carpenter, the defendants Gallup filed a separate answer substantially similar to the answer of their predecessor in interest, but containing a prayer for affirmative relief. It appears that the appropriation to which they had succeeded and the appropriation claimed by the plaintiff were made by means of the same irrigating ditch and by the same party, one E. U. Snider, who formerly owned the lands claimed by the defendants Gallup and the plaintiff, respectively, and that whatever water right they had and have, so far as this suit is concerned, was acquired through Snider. And, claiming to have succeeded to the title of Snider in that ditch, the defendants Gallup prayed that the title thereto be quieted in them as against the plaintiff. The ditch had been constructed by Snider and others jointly, and it is admitted that he owned an undivided one-half interest in it. Snider had entered the land now owned by plaintiff under the desert land act, and the lands now owned by the Gallups as a homestead, and had obtained a patent for both tracts, and, having separately mortgaged both tracts, and defaulted in the mortgages, the lands were sold upon foreclosure, and Mary L. Carpenter became the purchaser of the homestead tract, and the plaintiff of the other. Subsequently, and after the commencement of this suit, Mary L. Carpenter conveyed her premises to the Gallups. The mortgage of the homestead had been executed to one Alfred Bacon in 1889, and that covering the land acquired under the desert land act to the plaintiff in 1891.

The cause was tried and there was a general finding for the defendants, but the court also found specially that the said Snider had, by his mortgage of the homestead to Bacon conveyed to the latter all his interest in and to the ditch referred to, and that the defendants Warren Gallup, James D. Gallup and Garret B. Gallup were the owners of that interest and entitled to have their title quieted. Judgment was thereupon entered denying the relief demanded by the plaintiff, quieting the title of the defendants Gallup in the ditch and awarding them a judgment for their costs against the plaintiff, and it was ordered that the other defendants go hence without day and recover...