Hagie v. Lincoln Land Co.
| Decision Date | 17 February 1937 |
| Docket Number | No. 2511.,2511. |
| Citation | 18 F. Supp. 637 |
| Parties | HAGIE v. LINCOLN LAND CO. |
| Court | U.S. District Court — District of Wyoming |
James A. Greenwood, of Cheyenne, Wyo., for plaintiff.
John C. Pickett, of Cheyenne, Wyo., and James G. Mothersead and R. T. York, both of Scottsbluff, Neb., for defendant.
This is a proceeding in which the plaintiff seeks to secure a decree of abandonment and declaration of forfeiture of water rights held by the defendant. A brief history of the litigation follows:
The plaintiff brought the proceeding before the State Board of Control under the provisions of the Wyoming statute, sections 122-401 to 122-432, Wyoming Revised Statutes 1931, to secure a declaration of abandonment and forfeiture of defendant's water rights represented by Fox creek ditch No. 2 and Fox creek ditch No. 3, appropriations, as of priority No. 22 in the adjudication of Bear creek and it tributaries, of which Fox creek is one. After a hearing, the Board of Control issued its order of abandonment and forfeiture. Under the provisions of the statute a certified copy of its order was filed in the office of the clerk of the district court of Goshen county where the property affected is located, and proceedings were there instituted looking to the trial de novo of the issues before the district court in accordance with section 122-427. During the pendency of the proceeding there the defendant, Lincoln Land Company, in due time, interposed its petition for removal to the federal court upon the ground that the controversy involved an amount in excess of $3,000, exclusive of costs, and that the defendant was a resident and citizen of another state, being a corporation organized and existing under and by virtue of the laws of the state of Nebraska, with its principal place of business at the city of Lincoln in that state. The proceeding was accordingly removed to this court, where a challenge to the jurisdiction of the court was made by plaintiff and overruled, and this court then directed that the issues should be put in the form of pleadings in substantial accordance with the provisions of said section 122-427. To the petition a demurrer was interposed by defendant but overruled and an answer subsequently filed. The cause was set down for final hearing, evidence taken, and the matter submitted upon oral argument, supplemented by trial briefs of the parties. Upon the oral arguments and in the briefs only the merits of the controversy are discussed.
The material facts in the case are not in serious dispute. The water rights of defendant represented by appropriations in connection with the Fox creek ditches were taken out for the purpose of irrigating lands adjacent to Fox creek, which is a tributary of Bear creek. These water rights dated from the early 90's and represented very early appropriations in the adjudication by court decree of Bear creek and its tributaries. The evidence is not clear as to what was actually done in the earlier days by way of irrigation of the lands through the Fox creek ditches, although it is evident that there was some irrigation of the lands for which the water was appropriated. Some time in the year 1913 or 1914 a dam was constructed across Fox creek, and by means of a constructed ditch and the natural contour of the area the entire stream was diverted into a new course over and through a substantial portion of the lands for which the appropriations were made. At a point farther down, the water so diverted found its way back to the regular channel of the stream and was used by later appropriators upon lands adjacent to Fox creek before it reached its confluence with Bear creek. This was the only form of applying the water to the lands for which it had been appropriated, as no laterals were built from the diverted stream. The evidence shows that through the peculiar soil formation a seepage resulted which was successful in enriching the meadows through and adjacent to which the diverted stream ran. It was testified substantially without contradiction that through this method of irrigation the productivity of the meadows had been increased from about 300 tons to 500 tons of hay annually. The water rights of the plaintiff who seeks to invoke a decree of abandonment are as of date some twenty years later in point of time than those of defendant and concern the application to lands on Bear creek some ten miles above the point where Fox creek empties into it. The testimony seems to show that other appropriators on Fox creek and on Bear creek below Fox creek much earlier than those of the plaintiff consume all of the available water in the irrigation season which are produced by both Fox creek and Bear creek without having their respective maximum of appropriations fulfilled.
Counsel seem to agree that two points are determinative of the respective rights. It is claimed by the defendant that the plaintiff is not legally qualified to challenge the water rights of the defendant because of the fact that he does not come within the provisions of the statute as one eligible to present a contest. Section 122-422, W.R.S. 1931, provides in part: "When, pursuant to the provisions of § 122-421, any water user who might be affected by a declaration of abandonment of existing water rights, desires to bring about a legal declaration of such abandonment, he shall present his case in writing to the board of control."
In respect of this statute it is urged that the plaintiff is in no wise affected through the use of water by the defendant in the manner which has been above outlined. If it be held that the plaintiff is affected through the use of water by defendant on Fox creek, ten miles below plaintiff's land under the facts in this case, it would mean that pure theory must place plaintiff in a position to become a contestant of defendant's rights. The evidence in this case from the practical standpoint shows rather conclusively that the plaintiff's rights could in no way be affected injuriously or otherwise by the exercise of the defendant in its claimed right of appropriation. Apparently the Supreme Court of this state has not passed upon this feature of the statute. Cases from other jurisdictions have been cited which announce the principle that one purporting to complain of a diversion must show that he will suffer from it. In United States v. Haga (D.C.) 276 F. 41, the principle is stated in the syllabus as follows: "An appropriator from a main channel can complain of a diversion from a tributary only if and when such tributary would, if not interfered with, make a valuable contribution to the main stream."
It would seem to be at least a...
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