Holt v. City of Cheyenne

• Decision Date: 14 January 1914
• Docket Number: 746
• Citation: 22 Wyo. 212,137 P. 876
• Parties: HOLT v. CITY OF CHEYENNE
• Court: Wyoming Supreme Court

137 P. 876

22 Wyo. 212

HOLT v. CITY OF CHEYENNE

No. 746

Supreme Court of Wyoming

January 14, 1914

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

The action was brought by Thomas D. Holt against the City of Cheyenne to recover damages for an alleged deprivation of water and water rights. A general demurrer to the petition was sustained, and thereupon judgment was rendered in favor of the defendant. The plaintiff brought error. The material facts are stated in the opinion.

Affirmed.

Herman V. S. Groesbeck and Cassius M. Eby, for plaintiff in error.

No bill of exceptions is necessary to preserve an exception to an adverse ruling on a demurrer when judgment is entered upon the demurrer, and an exception is allowed and appears in the journal entry of the order and judgment. (Perkins v McDowell, 3 Wyo. 328; Dobson v. Owens, 5 Wyo 85; Sawin v. Pease, 6 Wyo. 471; Underwood v David, 9 Wyo. 178; Comp. Stat. 1910, Secs. 4278, 4628, 4630). The objection that separate causes of action are not separately stated and numbered must be raised by motion and not by demurrer. (Kearney Stone Wks. v. McPherson, 5 Wyo. 178; Ramsey v. Johnson, 7 Wyo. 392; Miskimmons v. Moore, 10 Wyo. 41). One cause of action only is stated in the petition. (1 Ency. Pl. & Pr. 159, 161). There is no necessity for other parties to this action than this plaintiff and defendant. This is not a suit for an adjudication of water rights. No adjudication is needed for plaintiff claims a right by adverse possession. Neither is it sought to reform the decree adjudicating the water rights on the stream. Even if the decree was valid the city is allowed a quantity greatly in excess of its possible needs for all time, and it can claim under its appropriation only what it actually uses, since the decree allots the water only for the use of the "inhabitants" of the city, and not for a separate and distinct community outside of the city limits, such as Fort D. A. Russell. The decree of 1888 is void and incapable of enforcement. 1. It is indefinite, ambiguous, unintelligible and uncertain. 2. It is not a final decree, but at best merely interlocutory, and is not sought to be enforced but has become obsolete as well as void. 3. It allows more water than can possibly be necessary to irrigate sixty acres of city ground outside of the corporate limits. 4. That appropriation was invalid because the land was outside the corporate limits. 5. The several contracts with Fort Russell were void and against the decree. 6. The city has changed its water system so as to divert the water above the lands of plaintiff to his detriment which cannot legally be done without compensation, and that compensation is sued for in this action. The right of the city to seize the plaintiff's water rights is not denied, but it is insisted that it cannot be done except upon the payment of just compensation and by a proper condemnation proceeding.

It may be plain that the statement in the decree of the quantity of water allowed the city is a clerical error or a misprision of the clerk, but it is now too late to alter the decree in that respect. (Comp. Stat. 1910, Secs. 4650, 4659). It is recited in the decree that the court could not then definitely ascertain and fix the amount of water in feet and inches to which each party defendant is entitled. By that the court clearly meant each defendant. No proof is required as to matters of fact in science or in the arts, or which are generally within the common knowledge. No proof should be required to show that the quantity of water allowed by the decree to the City of Cheyenne was greatly in excess of any possible present or future needs of the city. The allegation to that effect in the petition must be taken as true upon demurrer. No effect can be given to a void judgment. (23 Cyc. 1095, 1096, 1235; Corey v. Campbell, 34 O. St. 204). A decree must be certain in its terms. (16 Cyc. 473; Water Co. v. Santa Barbara, 144 Cal. 578, 77 P. 1113). A decree concerning water rights should be as certain as the use of language can make it. (Anthers v. Bryant, 22 Nev. 242; 38 P. 439; Patterson v. Ryan, 108 P. 1118; 1 Wiel on Water Rights, (2nd Ed.) Sec. 639; Wallace v. Ditch Co., 130 Cal. 578, 62 P. 1078; 3 Farnham on Water & Water Rights, 2120; Irr. Co. v. Downer, 19 Colo. 590, 35 P. 787; Irr. Co. v. Jenkins, 8 Utah, 369, 31 P. 986; Smith v. Phillips, 6 Utah, 376, 23 P. 932; Springville v. Holley, 6 Utah, 378, 23 P. 933). A judgment granting water in excess of the quantity flowing in the stream, except in times of flood, should be reversed. (Hayes v. Land & Water Co., 136 Cal. 238, 68 P. 734). A decree settling a priority for a purpose not authorized by statute is improper. (Doll v. McEllen (Colo.) 121 P. 149). A priority confers no right to appropriate for storage in any greater quantity or at any other time than can be appropriated for irrigation as against a subsequent appropriator for irrigation, but whose right is prior to that of storage. (Colorado M. & E. Co. v. Irr. Co., 26 Colo. 47, 56 P. 185). A decree that the plaintiff as against the defendant is entitled to all the water in the stream is too vague and uncertain. (Steinberger v. Meyer, 130 Cal. 156, 62 P. 156). The decree in question did not fix definitely, or as the law required and requires now, the exact quantity of water allotted to each of the parties, or sufficient data upon which an exact allowance could be predicated. (1 Wiel on Water Rights, 702, 703, 726 and cases cited; 2 Id. 1133; Logan v. Guichard, (Cal.) 114 P. 989).

A judgment to be final must dispose of the case as to parties and the whole matter in dispute. The decree complained of does not appear to be a final adjudication of the water. (State v. Derry, 171 Ind. 18, 85 N.E. 785, 131 Am. St. Rep. 237; 11 Ency. Pl. & Pr. 820, 821 and cases cited; White Co. v. Gwin, 136 Ind. 562; U. S. v. Belsinger, 43 Mo.App. 571; Jones v. Pharis, 59 Mo.App. 254; Hill v. Hill, 28 Barb. 23; Whittaker v. Benson, Fed. Cas. No. 17,526; Hall v. Vanier, 7 Neb. 397; Rich v. Metz, 134 U.S. 632; Colby v. Ins. & Tr. Co., 160 Cal. 632, 117 P. 913; 35 L. R. A. (N. S.) 813; Powers v. Perry, 12 Cal.App. 77; Nicoll v. Sav. Co., 21 Okl. 591, 96 P. 744; Impl. Co. v. Cleveland, 32 Utah 1, 88 P. 670; Everett v. Jones, 32 Utah 489, 91 P. 360; Dusing v. Nelson, 7 Colo. 184, 2 P. 922; Sidesparker v. Sidesparker, 83 Am. Dec. 527; Gage v. Downey, (Cal.) 29 P. 635; Metcalf v. Hart, 3 Wyo. 513; In re Huntley, 85 F. 889; Hopkins v. Lee, 6 Wheat. 109). A decree to be operative must contain sufficient certainty in itself. It cannot be aided by presumption. (Watts v. Waddle, 6 Peters, 389; Russell v. Place, 94 U.S. 606). Estoppel by judgment must be mutual. (2 Farnham on Waters and Water Rights, 1866). A final decree is one which determines and disposes of the whole merits of a cause, or a branch of the case separate and distinct from other parts, reserving no question or directions for future determination. An interlocutory decree is one which leaves the equity of the case or some material question connected with it for future determination. (See notes to 59 Am. Dec. 657; 60 Am. Dec. 428; 16 Cyc. 471; State v. Derry, 171 Ind. 18, 85 N.E. 765; 131 Am. St. 237; Sims v. Sims, 94 Va. 580; Arnold v. Sinclair, 11 Mont. 556; Teaff v. Hewitt, 1 O. St. 511, 59 Am. Dec. 634; Freeman on Judg., Sec. 36; Young v. Young, 135 Mo. 624, 85 S.W. 562; 1 Black on Judg., Secs. 21, 24, 25). The doctrine of res judicata applies only to final judgments. (Smith v. Smith, (Neb.) 89 N.W. 799, 23 Am. St. 112). A decree to be final must be definite, certain and capable of enforcement immediately, so that subsequent proceedings are only the means of executing it. (Parmelee v. Schroeder, 61 Neb. 553, 85 N.W. 562, 87 Am. St. 466; Iron Co. v. Martin, 132 U.S. 91; Bostwick v. Brinkerhoff, 106 U.S. 3).

An appropriator may change the place of his diversion, provided that such change will not injure subsequent appropriators. (Ditch Co. v. Henry, 14 Mont. 558, 39 P. 1054; Judkins v. Bergin, 67 Cal. 267, 7 P. 684; Power v. Sweitzer, 21 Mont. 523, 55 P. 32; Union M. & M Co. v. Dangeburg, 81 F. 75). While the city might sell its surplus water, it is held in Edwards v. Cheyenne, 114 P. 677, that it cannot do so if that deprives subsequent appropriators of such water. (Hargrave v. Cook, 108 Cal. 72, 41 P. 18). The following cases sustain the proposition that there can be no change in the place of diversion when the right of a subsequent appropriator is injured. (Water Co. v. Estrada, 117 Cal. 168, 48 P. 1075; Ditch Co. v. Bennett, 30 Ore. 59, 60 Am. St. 777, 45 P. 472; Rameli v. Irish, 96 Cal. 214, 31 P. 41; Gallagher v. Water Co., 101 Cal. 242, 35 P. 770; Kidd v. Laird, 15 Cal. 161, 76 Am. Dec. 472; Ditch Co. v. Irr. Canal Co., 27 Colo. 515, 62 P. 847; Cole v. Logan, 24 Ore. 404, 33 P. 568; Ditch Co. v. Morgan, 19 Cal. 609; Irr. Co. v. Irr. Co., 46 L. R. A. 820; 3 Farnham on Waters, 2097; Miller v. Baker, (Wash.) 122 P. 604; Irr. Co. v. Water Supply Co., 49 Colo. 1, 111 P. 610; Head v. Hale, 38 Mont. 302, 100 P. 222; Hough v. Porter, 51 Ore. 310, 98 P. 1085; Vogel v. Canal & Reser. Co., 47 Colo. 534, 107 P. 1108; Becker v. Irr. Co., 49 P. 892; Hall v. Blackman, (Ida.) 126 P. 1047; White & Co. v. Watson, 64 Wash. 666, 117 P. 497; Johnston v. Irr. Co., 13 Wyo. 208; Willey v. Decker, 11 Wyo. 496, 100 Am. St. 939). As to the water used by the City of Cheyenne there has been both a change in place of diversion and a change in use to the damage and detriment of the plaintiff, and this is clearly shown by the petition. Even domestic purposes does not cover general municipal purposes, so as to include water for a lighting plant. In order to acquire that right the city must exercise eminent domain. (Crawford Co. v. Hathaway, 67 Neb....