Holliday v. Templin

• Decision Date: 18 June 1940
• Docket Number: 2152
• Citation: 56 Wyo. 94,103 P.2d 408
• Parties: HOLLIDAY v. TEMPLIN
• Court: Wyoming Supreme Court

103 P.2d 408

56 Wyo. 94

HOLLIDAY v. TEMPLIN

No. 2152

Supreme Court of Wyoming

June 18, 1940

APPEAL from the District Court, Goshen County; SAM M. THOMPSON Judge.

Action by Clarence Holliday against Curtis L. Templin to quiet title to an undivided one-half interest in a ditch and water right. From a judgment for the plaintiff, the defendant appeals.

Reversed, with direction.

For the appellant, there was a brief by Bard Ferrall and John S Miller of Cheyenne, and oral argument by Mr. Ferrall.

The action is one to quiet title. The plaintiff can only recover upon the strength of his title and not upon the weakness of defendant's title. Simmons v. Ramsbottom (Wyo.) 68 P.2d 153; Davis v. Convention (Wyo.) 16 P.2d 48. Things appurtenant to land at the time of conveyance pass with it. 18 C. J. 295; Hurley v. Liberty Lake Co. (Wash.) 192 P. 4; Muscogee Mfg. Co. v. Mills (Ga.) 54 S.E. 1028. The plaintiff must show what water was appurtenant to the land on May 6, 1890. May v Penton, 45 Wyo. 82; McPhail v. Forney, 4 Wyo. 556. Before water can be appurtenant to land it must be used upon that land. Frank v. Hicks, 4 Wyo. 502; 2 Kinney on Irrigation 1790, et seq. Plaintiff failed to show what water was used on the land. Farm Investment Company v. Gallup, 13 Wyo. 20; Gustin v. Harting, 20 Wyo. 1. A water commissioner's testimony was competent. Conservation District v. Lincoln Land Company, 92 P.2d 572. Plaintiff's failure of proof or defendant's evidence lead to judgment for the defendant. Either is sufficient. Bamforth v. Ihmsen, 28 Wyo. 282. Plaintiff must rely upon the strength of his own title and cannot succeed by merely attacking defendant's title or relying upon the weakness thereof. McFadden v. Ferguson (Wash.) 170 P. 365; Sowards v. Meagher (Utah) 108 P. 1112. The use shown by defendant is sufficient to establish his title, even if plaintiff showed record title. 2 Kinney on Irrigation 1875; 67 C. J. 1055; Construction Company v. Allen Ditch Company (Ore.) 69 P. 455. Title to water can be obtained by adverse possession, even as against a prior appropriator. Verwolf v. Irr. Co. (Mont.) 227 P. 68; Maes v. Willburn (Colo.) 273 P. 886; Hays v. De Atley (Mont.) 212 P. 296; District v. Land Company, 92 P.2d 572. Plaintiff knew the situation before he purchased the land and cannot escape the consequences of actual and constructive notice. Nitchens v. Milner Townsite Co. (Colo.) 178 P. 575; Harris v. Chapman (Idaho) 5 P.2d 733; Ditch Co. v. Wooley (Colo.) 76 P. 1053. The territorial decree established defendant's rights. Johnston v. Irrigating Company, 13 Wyo. 208. The judgment is contrary to law and should be reversed.

For the respondent, there was a brief and oral argument by J. A. Greenwood of Cheyenne.

Evidence is not required to establish an allegation in a pleading as a fact when the allegation is admitted in the answer. Watts v. Lawrence, 26 Wyo. 367; Marcante v. Hein, 51 Wyo. 389. After the enactment of Chapter 8 of the Wyoming Session Laws of 1890, a water right could not be acquired in Wyoming except by compliance therewith. Whalen v. Company, 11 Wyo. 313; Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208; Hunt v. City of Laramie, 26 Wyo. 160. Under the laws of the territory, water lawfully diverted from a stream and beneficially applied to the irrigation of land became appurtenant to such land. Frank v. Hicks, 4 Wyo. 502; Investment Company v. Gallup, 13 Wyo. 20; Burnett v. Taylor, 36 Wyo. 12; Bothwell v. Keefer, 27 P.2d 65; Bank of Denver v. Hoeffer, 70 P. 156; Ditch Company v. Woolley, 76 P. 1053; Gelwicks v. Todd, 52 P. 788. The evidence in this case sustains the above principal, which is expressly true when the water right and the land are owned by the same party. 2 Kinney 811, Sec. 1014; Russell v. Irish, 118 P. 501; McPhail v. Forney, 4 Wyo. 556. Unless expressly reserved, a conveyance of the land and its appurtenances passes the water right, without an express reference thereto in the conveyance. 2 Long on Irrigation, 2d Ed. 314, Sec. 175; 2 Kinney on Irrigation, 1796, Sec. 1009; James v. Barker, 64 P.2d 598; King v. Ackroyd, 66 P. 906; Paddock v. Clark, 126 P. 1053; Burnett v. Taylor, 36 Wyo. 12; Bothwell v. Keefer, 27 P.2d 65; Investment Company v. Gallup, 13 Wyo. 20; Johnston v. Horse Creek Irrigating Company, 13 Wyo. 208. Appellant's answer admits the issuance of this patent by the United States to Meanea under the Desert Act, and such patent relates back to date of the entry. Long on Irrigation, 2d Ed. 350, Sec. 106; Wood v. Etiwanda Water Company, 54 P. 726; Roberts v. Hudson, 25 Wyo. 505. The water right in controversy is therefore appurtenant to the land. The declarations of a grantor against the title of his grantee, made after parting with title, are not admissible to impeach the title of the grantee. Cohn v. Cohn, 20 P.2d 61; Gallagher v. Gallagher, 276 P. 634; Josslyn v. Daly, 96 P. 568; Woodson v. Torgerson, 291 P. 663; Julien v. Herren, 271 P. 891; Rocha v. Rocha, 240 P. 1010; Overton v. Harband, 44 P.2d 484; Livestock Company v. Warren, 62 P.2d 206; Buhl Bank v. Glander, 56 P.2d 757. A water right could not be acquired by prescription or adverse use in Wyoming after 1890. Holt v. Cheyenne, 22 Wyo. 212; Ranch v. Hammond Packing Company, 33 Wyo. 14; Long on Irrigation, 2d Ed. 350, Sec. 196. A prescriptive right to water cannot be acquired against the state of Wyoming. 2 C. J. Sec. 4431; Allen v. Lewis, 26 Wyo. 85. Acts of a water official cannot aid one in establishing title to water by adverse possession and use. Irr. Co. v. Alsager, 277 P. 430; Water Company v. Ranch Company, 248 P. 264; Irrigation Company v. Hudson Bay Irr. Co., 16 P.2d 939; Ryan v. Tutty, 13 Wyo. 122; Ebell v. City of Baker, 299 P. 313. Appellant's claim of title by adverse possession is refuted by the testimony. 1 Amer. Juris. 807, § 31. Appellant and respondent were joint owners of the water right obtained by Meanea from Mason and so continued in the absence of a specific change in ownership. Fieldhouse v. Leisburg, 15 Wyo. 207; Rock Springs v. Strum, 39 Wyo. 494. Appellant's assignment of errors, numbered 5 to 20, inclusive, considered in the light of the evidence, will not be found to constitute prejudicial error affecting any substantial right of appellant. The property to which appellant claims title belongs to the State of Wyoming. Article 8, Section 1, Constitution; Long on Irrigation, 2d Ed., § 166. And the right of user must have reverted to the State before appellant could acquire any interest in it. Whalen v. Canal Company, 11 Wyo. 313. Water officials cannot determine priorities of right. In re Walla Walla River, 16 P.2d 939; Ryan v. Tutty, 13 Wyo. 122. The judgment should be affirmed.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The plaintiff, Clarence Holliday, brought this action against the defendant, Curtis Templin, to quiet his title to an undivided one-half interest in a ditch and water right which was acquired by one Frank A. Meanea on February 20, 1890, from one Marcus W. Mason. Judgment was rendered in favor of the plaintiff, and the defendant has appealed. The parties will hereinafter be referred to as in the case below. The facts are little, if any, in dispute.

Frank A. Meanea made desert land entry on a section of land, namely, the S/2 of the N/2 and the S/2 of Section 22, and the N/2 of the N/2 of Section 27, T. 20 N., R. 61 W., on February 23, 1887. He made proof in compliance with law at the land office at Cheyenne on February 21, 1890, and patent to the land was issued to him subsequently on October 2, 1891. It is agreed by the parties herein that the water right used on the land is the right under the Lowe Cattle Company's No. 1 ditch, hereinafter mentioned. Plaintiff and defendant both derive their title to the land from Meanea, each owning 320 acres thereof, the plaintiff owning the west half and the defendant the east half. The land will hereinafter be referred to by these or similar terms. Only the water and ditch right in connection therewith is in dispute.

The water right herein involves 15.8 cu. ft. p. s. t. from Horse Creek. A claim for this water was filed by the Lowe Cattle Company in the office of the county clerk of Laramie County on August 24, 1886, to be conducted through its ditch No. 1. The right of the Lowe Cattle Company was sold under execution and a sheriff's deed therefor was issued to Marcus W. Mason on May 7, 1889. Thereafter, on June 12, 1889, in an adjudication of the waters of Horse Creek, the district court of Laramie County confirmed the right in Mason, granting him a water right of 15.8 cu. ft. p. s. t. through the ditch above mentioned from Horse Creek to irrigate 640 acres of land (not describing the land), the right to have a priority as of May 10, 1884. On February 20, 1890, Mason conveyed to Meanea an undivided one-half interest in the foregoing ditch and water right. The conveyance did not describe any land upon which it was to be used. The consideration was $ 3200. Soon after, namely, on May 6, 1890, Meanea conveyed the west half of the foregoing lands to Mason, "together with the privileges, hereditaments, tenements and appurtenances thereunto in any way appertaining and belonging." The consideration for that, too, was $ 3200. The title to the east half of the foregoing land remained in Meanea until February 26, 1907, when he conveyed it to Howard W. Thomas, a predecessor in interest to the defendant, together with "an undivided one-half interest in and to that certain irrigation ditch known and called Lowe Cattle Company's Ditch No. 1, and also an undivided one-half interest in and to all water appropriated by said Lowe Cattle Company by means of said ditch."

In the trial of the case the court excluded some testimony...