Grover Irrigation and Land Company v. Lovella Ditch, Reservoir and Irrigation Company, 705

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: POTTER, JUSTICE.
• Citation: 131 P. 43,21 Wyo. 204
• Decision Date: 07 April 1913
• Docket Number: 705
• Parties: GROVER IRRIGATION AND LAND COMPANY v. LOVELLA DITCH, RESERVOIR AND IRRIGATION COMPANY

131 P. 43

21 Wyo. 204

GROVER IRRIGATION AND LAND COMPANY
v.
LOVELLA DITCH, RESERVOIR AND IRRIGATION COMPANY

No. 705

Supreme Court of Wyoming

April 7, 1913

ERROR to the District Court, Laramie County; HON. RODERICK N. MATSON, Judge.

This was a proceeding for the condemnation of certain land in this state for a headgate and part of an irrigation ditch brought by the Lovella Ditch, Reservoir and Irrigation Company against the Grover Irrigation and Land Company. Judgment was rendered in favor of the petitioner and the defendant brought error. The material facts are stated in the opinion.

Reversed.

Clark & Clark, for plaintiff in error.

The only points desired to be presented arise upon the demurrer to the amended petition. The contention that said petition is insufficient is based upon two grounds: 1. Because the plaintiff acquired no permit from the state engineer authorizing the diversion of any water. 2. Because the proposed use is not public with respect to this state. It is not the law in this state that the necessity of an appropriation of land is left to the decision of the condemning party, nor has that been determined by the Legislature. It is provided by statute (Comp. Stat. 1910, Sec. 3874) that a corporation requiring a way of necessity for an irrigation ditch may condemn so much land as is "necessary therefor." The petition in a condemnation proceeding must allege the "immediate necessity for the appropriation." (Sec. 3876.) Before commissioners can be appointed to appraise the damages the court must hear the allegations and proofs touching "the immediate necessity of the appropriation," and that question must be determined in favor of the plaintiff. (Id. Sec. 3879). No such showing as that required by the sections of the statute cited can be made in the case of an irrigation ditch in the absence of a valid permit from the state engineer authorizing the construction of a ditch and the diversion of water through it. (Id., Secs. 727, 730.) The right to condemn property is not inherent in any person or corporation; it is a matter of grace on the part of the sovereign, which may refuse it altogether, or in granting it, may annex conditions to its exercise. The right can be exercised only where the proposed use will constitute a public benefit, although it may not be necessary that it be a public use. The digging of a ditch is not a public benefit; the public benefit is found in the irrigation of lands. The party seeking to take property for an irrigation ditch must therefore establish his right to divert water through it. (Castle Rock Irr. C. & W. P. Co. v. Jurisch, 67 Neb. 377, 93 N.W. 690.) The petition does not show the securing of the necessary permit for the construction of the ditch and the appropriation of the water. It shows certain applications and the action taken thereon by the engineer, but it is contended on behalf of plaintiff in error that those proceedings did not amount to such an approval of the application as to give the defendant in error any right whatever. No indorsement made by the engineer upon either of the applications contains the essential elements of an affirmative indorsement specified in Section 732. If it should be held that by the engineer's indorsement the application of the defendant in error was approved, then the question arises whether the engineer has authority under our statutes to issue a permit for the diversion of water in this state to be used for irrigating lands in another state. The authority of the engineer to issue a permit may be attacked collaterally, since the only right to an appeal is given to the applicant for a permit. (Sec. 733.) Therefore, if the authority to issue a permit can be questioned at all it must be done collaterally.

The proposed use is not public with respect to Wyoming, and will not justify the condemnation of land in Wyoming. The only justification for extending the power of eminent domain to a private use is found in the resulting benefit to the state as a whole. The irrigation of lands in Colorado is in no sense a benefit to this state authorizing the taking of land in this state. (Lewis on Em. Dom., Secs. 1, 282, 310, 315; Mining Co. v. Sewell, 11 Neb. 394; Strickley v. Highland Boy Co., 200 U.S. 527; Potlach Lumber Co. v. Peterson, 12 Ida. 769, 88 P. 426; Healy Lumber Co. v. Morris, 33 Wash. 490, 74 P. 681; Columbus W. W. Co. v. Long, 121 Ala. 243, 25 So. 702.) In the last case cited it was said to be an admitted fact generally that the power of eminent domain inheres in a state for domestic uses only, to be exercised for the benefit of its own people, and cannot be extended merely to promote the public uses of a foreign state. Citing that case it is said in Lewis on Eminent Domain: "The public use for which property may be taken is a public use within the state from which the power is derived." (Sec. 310.)

Kinkead & Mentzer, for defendant in error.

The defendant below having answered after the overruling of its demurrer and allowed the trial to proceed on the merits there can be no review of the ruling upon the demurrer. (Griffin v. Wattles, (Mich.) 78 N.W. 122; 2 Cyc. 646; Wheeler v. Baker, (Neb.) 71 N.W. 750; Prosser v. Chapman, 29 Conn. 515; Love v. Johnson, 34 N.C. 367; Jordan v. Wickham, 21 Mo.App. 536; Ry. Co. v. Murray, 87 F. 647; Davis v. Lumber Co., 14 Wyo. 517; Johnston v. Irrigation Co., 4 Wyo. 164; Perkins v. McDowell, 3 Wyo. 328.) If the plaintiff might have amended its petition, if amendment was necessary, so as to support the judgment, the defendant could not have been prejudiced by the overruling of the demurrer, even though such amendment was not filed. (Ry. Co. v. Pollock, 16 Wyo. 321; Kuhn v. McKay, 7 Wyo. 42.)

There was no proper exception to the decision upon the demurrer; the entry showing the ruling not containing the grounds of the objection, and there being no bill of exceptions. (Comp. Stat. 1910, Secs. 4594, 4595, 4597-9, 5107, 5109; Burns v. Ry. Co., 14 Wyo. 498.)

The validity of a water right cannot be questioned in an action to condemn a right of way for the ditch. (Schneider v. Schneider (Colo.), 86 P. 347; Denver P. & I. Co. v. Ry. Co. (Colo.), 69 P. 568.) A lawful appropriation of water is not under the law of this state a condition precedent to acquiring a right of way for a ditch by purchase nor to the right to construct a ditch. Hence, if the defendant by its conduct in this case has acquiesced in the condemnation proceedings by stipulating that the question of damages which it would sustain by reason of the taking should be submitted to the court for adjudication, it could not repudiate its own act. The allegations of the petition upon which the final judgment was rendered alleges the facts as to the applications filed in the engineer's office and the official action taken thereon, and that a right to construct the ditch and divert water was acquired. Whether such right was acquired was a question of fact in the case, and that question was finally decided against the defendant by the lower court upon the evidence submitted, and as the evidence is not before this court, the decision of the trial court upon the question is not here for consideration. The pleadings show the necessary affirmative action by the state engineer upon the application of the plaintiff, defendant in error here, and is thus sufficient to sustain the judgment. The acts of public officers are presumed to be legal and regular until the contrary affirmatively appears. (Cicero v. Ry. Co. (Ind.), 97 N.E. 389.) The case cited by opposing counsel (Castle Rock &c. Co. v. Jurisch, 93 N.W. 690) is not in point, for the reason that in that case the petitioner in the condemnation proceeding had been refused a permit to appropriate water for its proposed ditch. The state is the only party competent to question the acts of the engineer in the exercise of the power granted him by the constitution and statutes to supervise the waters of the state and their distribution. (Water Works v. Peralta (Cal.), 45 P. 169; Quigley v. Birdseye (Mont.), 28 P. 741.) The state engineer has the power to approve an application for and thereby to permit the diversion of water in this state for the purpose of irrigating lands lying wholly within a neighboring state. (Willey v. Decker, 11 Wyo. 496; Bean v. Morris, 221 U.S. 485; Atchison v. Peterson, 20 Wall. 507; Basey v. Gallagher, id. 681; Kansas v. Colo., 206 U.S. 46; Rickey L. & C. Co. v. Miller, 218 U.S. 258; Morris v. Bean, 146 F. 423; Bean v. Morris, 159 F. 651; Hoge v. Eaton, 135 F. 411; Anderson v. Bassman, 140 F. 14; Howell v. Johnson, 89 F. 556; Const., Art. I, Sec. 31; Art. VIII, Secs. 1, 2, 3, 5; Farm Inv. Co. v. Carpenter, 9 Wyo. 110; Cline v. Stock (Neb.), 98 N.W. 454; Brown v. Cunningham, 82 Ia. 512, 48 N.W. 1042; Rosmiller v. State, 89 N.W. 839; Perkins Co. v. Graft, 114 F. 441.) From a review of the authorities cited it is apparent that where, as appears in this case, the legitimate demands of this state as to the waters of Crow Creek having been satisfied, the State of Colorado and this plaintiff have the right to insist upon the natural flow of the surplus waters of the stream into Colorado. Plaintiff's diversion being at a point below any possible subsequent diversion for useful purposes within this state, and the plaintiff having lawfully appropriated and acquired the right to divert such waters at a point just over the line in the other state, its taking of the water in this state as desired is merely taking that which already belongs to it by virtue of its appropriation under the laws of Colorado. In permitting such appropriation and diversion in this state the engineer guarded every interest, and followed the spirit and plain intent of the constitution.

Upon the facts alleged in the petition this state was required to permit the waters of the stream in question to flow in their natural channel, without further diminution, into the State...