Hamp v. State

• Decision Date: 06 November 1911
• Docket Number: 649
• Citation: 118 P. 653,19 Wyo. 377
• Parties: HAMP v. STATE
• Court: Wyoming Supreme Court

118 P. 653

19 Wyo. 377

HAMP v. STATE

No. 649

Supreme Court of Wyoming

November 6, 1911

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

The material facts are stated in the opinion.

Affirmed.

J. H Ryckman, S. T. Corn, and Ivan S. Jones, for plaintiff in error.

The control of a ditch or headgate by the water commissioner is a deprivation of or damage to private property within the inhibition of the constitution. Any authority or duty imposed upon a ministerial or executive officer to assume possession and control of property or the property rights of individuals, without their consent, can only be conferred by statute expressly conferring the authority or imposing the duty. The control given by statutes to water commissioners necessarily includes the physical control of the land occupied by the ditch and headgate. In the case at bar the act of the water commissioner added a burden to the land of Hamp by flowing water through his ditch for the use of Roberson. (Coal Co. v. Cozad, 79 O. St. 348, 20 L R. A. (N. S.) 1092.) It was contended by Hamp when he closed the headgate after it had been raised by the water commissioner, that the latter could not legally flow water through his ditch for the benefit of Roberson. The imposition of that easement on the land of Hamp for the use of Roberson was as much a taking of the land as though the officer had attempted to convey it to Roberson. (Yick Wo v. Hopkins, (U. S.) 30 L.Ed. 220; Janesville v. Carpenter, 77 Wis. 288, 20 Am. St. 123; People v. Hawkins, (N. Y.) 68 Am. St. 736; State v. Julow, (Mo.) 50 Am. St. 443; Block v. Schwartz, 27 Utah 387, 76 P. 22.) One of the most essential attributes of the ownership of property is the right to exclude all other persons therefrom and to use it without interference. (People v. Otis, 90 N.Y. 48; Re Jacobs, 50 Am. Dec. 636.) The act of a water commissioner in taking control of a headgate for the purpose of flowing water through it, or the ditch connected with it, is an invasion of private property, and violates the constitution. (Pumpelly v. Green Bay &c., 13 Wall. 166; Hooker v. New Haven &c., 14 Conn. 146; Rowe v. Bridge Co., 21 Pick. 344; Canal Aprs. v. People, 17 Wend. 604; Stevens v. Middlesex Canal, 12 Mass. 466.)

The board of control has no judicial power to determine the ownership of an irrigating ditch. (Farm Inv. Co. v. Carpenter, 9 Wyo. 110.) The legislature is without power to change the control of property from one party to another. (State v. Neff, 52 O. St. 375, 28 L. R. A. 409; Norman v. Heist, 5 W. & S. 171.) The statutes authorizing the regulation by water commissioners do not provide for due process of law, for no opportunity is given to the ditch or headgate owner to be heard. (Phila. v. Miller, 49 Pa. 448; Sterritt v. Young, 82 P. 946; State v. Hotel Co., 9 Mo.App. 455; Land Co. v. Buffalo, 7 Neb. 258; Kuntz v. Sumption, 117 Ind. 1, 60 N.E. 474; Pennoyer v. Neff, 95 U.S. 714; Stuart v. Palmer, 74 N.Y. 188.) The statute which provides for a notice to be affixed to the headgate setting forth that the same has been properly regulated and is wholly under the control of the commissioner, provides for a notice of an official act already done, and is therefore insufficient because the owner has not been heard. (8 Cyc. 1082, and cases cited; Pennoyer v. Neff, supra; Canon City v. Manning, 95 P. 537; Brown v. Denver, 7 Colo. 311; Jenks v. Stump, 93 P. 17.) What the law does not permit to be done directly may not be done indirectly.

A. Crawford and B. M. Ausherman, for defendant in error.

The matter of ownership, so far as the appellant is concerned, is only an inference under the evidence and is not to be determined by this court. Adverse possession of the right of way by Roberson has resulted in title. (Bashore v. Mooney, 87 P. 553.) It was not established that the appellant had acquired in any way a water right or a right of way in the ditch. D. O. Roberson is the only party shown to have any such right, since he is the only one shown to have had a certificate of appropriation. The points made by counsel for plaintiff in error and the authorities cited are foreign to anything in this case. The right of Roberson to have the water flow through the headgate attaches to his interest in the ditch. (Willey v. Decker, 11 Wyo. 544.) The headgate is an appurtenance to the ditch, and its use is subject to the statutes providing for the regulation of headgates.

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

OPINION

POTTER, JUSTICE.

Clark G. Hamp was tried and convicted before a justice of the peace of the statutory offense of willfully interfering with the headgate of an irrigating ditch without authority. He appealed to the district court, where he was again convicted and was fined in the sum of twenty-five dollars and ordered to pay the costs taxed in the case. The complaint or information charges that on the 26th day of May, 1908, in the county of Uinta, the said Hamp did "willfully and without authority, close, change and interfere with the headgate of the ditch known as the Desert Ditch No. 2 and the Hamp Extension Ditch (describing its location), which said headgate and ditch was then and there under the control and regulation of John W. Blackwood, an assistant water commissioner, contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming."

The statute declares that any person who shall willfully open, close or interfere with any headgate without authority shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not exceeding one hundred dollars or imprisonment in the county jail for a term not exceeding six months, or both such fine and imprisonment. (Laws 1890-91, Ch. 8, Sec. 42; Rev. Stat. 1899, Sec. 97; Laws 1901, Ch. 86; Comp. Stat. 1910, Sec. 817.)

The material facts are as follows: Daniel O. Roberson, the complaining witness, had been granted by an order of the board of control a certificate of appropriation of water from Fontenelle Creek through the ditch in question for the irrigation of land lying under the ditch; the certificate stating that such appropriation had been duly determined and established by said board of control on the 12th day of June, 1907. John W. Blackwood was appointed an assistant water commissioner in the manner provided by statute for the water district in which said ditch is situated, "for the purpose of aiding the water commissioner of said district, and particularly in the distribution of water from that ditch taken out from Fontenelle Creek in said district and known as Desert Ditch No. 2." By direction of the superintendent of the water division embracing such district, said assistant water commissioner took charge of the headgate described in the information, and raised and locked it so as to allow the passage of water into the ditch for the use of Roberson in accordance with his certificate of appropriation, and, at the same time, attached to the headgate a notice dated and signed by him in his official capacity, stating that the headgate had been properly regulated by him and was under his control, and that any person interfering with the same would be prosecuted to the full extent of the law. While the headgate was in that condition, and the commissioner remained in control, the defendant broke the lock and closed the headgate. There was testimony to the effect that he also tore off the official notice. He denied that or that he read the notice, but admitted that he saw it. We think the evidence clearly shows that, irrespective of the notice, the defendant assumed, if he did not know, that the headgate had been officially regulated by one claiming to have been appointed as assistant commissioner, and claiming authority to divide and distribute the water of the stream referred to and to regulate the headgate of this ditch, and that the acts of defendant were committed in willful defiance of such authority, claiming that Roberson had no right to use the ditch. Upon the trial the defendant attempted to justify his acts upon the ground that he had built and was the owner of both headgate and ditch, and that Roberson had no interest in or right to use the same.

The trial court ruled that the question of ownership of the ditch or headgate was immaterial in this case, stating, during the taking of the testimony: "Whether Roberson had any interest in this ditch would not make any difference. This is interference with an officer of the law." However, a limited amount of evidence was received relating to the construction and use of the ditch and headgate, and the ownership of the land crossed by the upper end of the ditch above the Roberson land, and upon which the headgate is located; the defendant claiming that a third party owned such land, and that he, the defendant, was the sole owner of the right of way for that part of the ditch. But such evidence is obviously lacking in a showing of all the facts necessary to a satisfactory conclusion, if the matter was to be conclusively determined, and which it may be supposed, would have been shown had the court held such facts to be material. Enough appears, however, to show that both parties had used the ditch, and that there was a dispute between them as to its ownership and Roberson's right to conduct his appropriated water through the same, or at least through that part of the ditch above his land. The fact was brought out in the evidence that at the hearing before the board of control resulting in the granting of Roberson's certificate of appropriation, the defendant had appeared and contested such right on the ground that Roberson had no interest in the ditch in question through which h...