Groo v. Sights

• Decision Date: 19 July 1913
• Docket Number: 724
• Citation: 134 P. 269,22 Wyo. 19
• Parties: GROO v. SIGHTS
• Court: Wyoming Supreme Court

134 P. 269

22 Wyo. 19

GROO v. SIGHTS

No. 724

Supreme Court of Wyoming

July 19, 1913

ERROR to the District Court, Uinta County; HON. DAVID H. CRAIG Judge.

The action was brought by O. H. Groo against John M. Sights, the nature of the controversy being stated in the opinion. From a judgment for defendant the plaintiff brought error.

Affirmed.

J. H Ryckman, for plaintiff in error.

The only point involved is plaintiff's right to change the point of his diversion. The case seems to have been decided upon the theory that no decree is required to enable the plaintiff to make a change in the place of such diversion and that if any authority to do so is necessary it should be secured from the board of control or the water division superintendent. While one who has a lawful appropriation of water for irrigation purposes may change the place of diversion without losing his right or priority without any decree of the Court or permission of the board of control, it does not follow that he may not apply to a court for a decree declaring his right to make such change, upon showing that the rights of others are not injuriously affected by such change.

B. M. Ausherman, for defendant in error.

The issues in this case were the same as those involved in the action determined by the decree of the District Court in 1890. The entering of such decree is alleged in the answer, and it is here contended that it denied the right now claimed by the plaintiff, and as between the parties, the matter has therefore been fully settled and determined. An appropriator cannot change his point of diversion except in the manner prescribed in the statutes. (Comp. Stat. 1910, sec. 726 et seq.) The statutes make it imperative that application must be made in some form to the state engineer or board of control. The statute furnishes a special method of procedure, with a right of appeal from the decision of the board to the court. Plaintiff is not seeking merely to change the place of his diversion, but his purpose is to take from the defendant his place of diversion and his ditch, and thereby destroy the defendant's appropriation which had been established in his favor on the trial of the former action.

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

OPINION

POTTER, JUSTICE.

The plaintiff in error brought this action in the District Court of Uinta County against the defendant in error, and brings this proceeding in error to reverse the judgment rendered in favor of the defendant. The action was for damages for alleged interference by the defendant with an alleged water right of the plaintiff, and for an injunction restraining further interference. The petition alleged plaintiff's ownership and possession of certain described land, and then alleged a water right therefor, and interference by the defendant with such right, as follows: "That by decree of this Court made and entered the plaintiff became the sole and absolute owner of a water right for said land, and that he has ever since used said water right for the irrigation of his said land, except when interfered with and deprived of the same by the defendant as hereinafter set out. * * * * That in the season of 1906, and every season since, the defendant has diverted the plaintiff's water to defendant's own use, and interfered with the plaintiff's said water and water right, and has prevented the plaintiff from using the same on portions of said land," describing a part of the land. The answer denied any interference by the defendant with the plaintiff's water right, and alleged that the plaintiff had unlawfully cut the defendant's ditches and interfered with his water right, and claimed damages therefor.

By oral stipulation at the commencement of the trial all claim for damages by either party was waived. Each of the parties has an established right to the use of water, principally for irrigation, from Spring Creek, a small stream, a tributary of Bear River, fed by springs at its source and along its course. The source of the stream is apparently in Section 4, Township 25 North, Range 119 West of the Sixth Principal Meridian, and, pursuing generally a southwesterly course, it flows into and crosses the southeast corner of section 5, the north half of section 8, the northeast quarter of section 7 and a part of the southeast quarter of section 6, in said township and range. The defendant is the owner of land in the southeast quarter of section 5 and the northeast quarter of section 8, and the plaintiff is the owner of a tract of 160 acres lying partly in section 7 and partly in section 6, and it seems also that he has or had a desert entry covering 40 acres in section 6 and 40 acres adjacent thereto in the southwest quarter of section 5. The defendant's land is nearer the source of the stream than the land of the plaintiff, but the right of the plaintiff to the quantity of water appropriated by him is prior to that of the defendant. The only appropriation made by the plaintiff has a priority dating from 1879. Defendant's first appropriation appears to have been made in April and May, 1888, and he made a second appropriation dating March 6, 1907. By decree of said District Court in 1890 the previously acquired and then existing rights of the parties, as against each other, to the use of the water of said stream were established. That decree recites that the court found upon the evidence that in 1879 the plaintiff appropriated 920 cubic inches of water per second; that his ditch and dam were located on said stream at a point near the southeast corner of the southwest quarter of the southeast quarter of section 6, township and range aforesaid, said point being located on said section 6; that during the months of April and May, 1888, the defendant appropriated water from said stream by the construction of a dam and ditch on the southeast quarter of section 5. The judgment of the court upon those findings was expressed as follows:

"It is therefore considered and adjudged by the Court that by reason of the appropriation by said plaintiff as aforesaid, he, the said plaintiff, as against said defendant, of the waters flowing in said creek at the point on said section six where said appropriation was made hath a prior right, and that the amount of water to which he hath such prior right is nine hundred and twenty inches per second, for beneficial uses, and it is further decreed that said defendant by reason of the appropriation made in April and May, 1888, by means of his ditch and dam aforesaid constructed on said section five appropriated as against said plaintiff all the water running in said stream to the full capacity of his said ditch for beneficial uses saving to the plaintiff at all times nine hundred and twenty cubic inches per second at said point on section six, and it is further ordered that each of the parties hereto pay and bear his own costs in this behalf expended."

By an adjudication of the State Board of Control concluded in December, 1908, that decree appears to have been followed, and for the rights therein determined certificates of appropriation were issued in accordance with the order of the board. A certificate was issued to Orson H. Groo, the plaintiff, describing his appropriation as follows: "Amount of Appropriation .52 cu. ft. per sec.; Date of Appropriation 1879; Description of land to be irrigated and for which this appropriation is determined and established; Total Acreage Thirty-seven (37) acres. 18 A. NW. 1/4, 25 SE. 1/4, Sec. 6, Tp. 25 N., R. 119 W. 19 A. SW. 1/4, SE. 1/4, Sec. 6, Tp. 25 N., R. 119 W. The water for said land to be taken from Spring Creek at a point near the SE. corner of SW. 1/4, SE. 1/4, Sec. 6, Tp. N., R. 119 W. * * * * The right to water hereby confirmed and established is limited to irrigation and the use is restricted to the place where acquired and to the purpose for which acquired; rights for irrigation not to exceed one cubic foot per second for each seventy acres of land for which appropriation is herein determined and established." A certificate based upon said adjudication was also issued to John M. Sights, the defendant, showing his appropriation to be .42 cubic feet per second, dating April and May, 1888, for stock purposes and the irrigation of thirty acres in the SW. 1/4 of the SE. 1/4, Sec. 5, Tp. 25 N., R. 119 W., and restricting such use to the place where acquired and the purpose for which acquired, and to one cubic foot per second for each seventy acres of land. Based, as we suppose, upon a permit previously granted, the Board of Control on March 26, 1910, issued a certificate to the defendant for an appropriation from said stream of .57 cubic feet, dating March 6, 1907, for the irrigation of 39.93 acres of land in the NW. 1/4 of NE. 1/4, Sec. 8, and SW. 1/4, SE. 1/4, Sec. 5. The right so granted was also restricted as in the other certificates to the place where acquired, the purpose for which acquired, and to one cubic foot per second for each seventy acres of land.

It developed upon the trial, during the examination of the plaintiff as a witness in his own behalf, that he was not complaining of any interference with his right to take the amount of water appropriated by and allowed to him from the place of diversion specified in the decree aforesaid and in his certificate of appropriation, but that if defendant had been guilty of any interference with plaintiff's right or alleged right, it was an interference with an attempted diversion by the plaintiff about a mile farther up the stream and at or near the place of defendant's diversion. It appeared that on one occasion in 1906 the plaintiff turned the water of the stream into a ditch at the place last mentioned for the purpose, as he says, of irrigating the two north...