Horse Creek Conservation District v. Lincoln Land Company

• Decision Date: 11 July 1939
• Docket Number: 2093
• Parties: HORSE CREEK CONSERVATION DISTRICT v. LINCOLN LAND COMPANY
• Court: Wyoming Supreme Court

92 P.2d 572

54 Wyo. 320

HORSE CREEK CONSERVATION DISTRICT v. LINCOLN LAND COMPANY

No. 2093

Supreme Court of Wyoming

July 11, 1939

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

Proceeding by the Horse Creek Conservation District against the Lincoln Land Company before the State Board of Control to secure a declaration of for-feiture of an appropriation of the waters of Horse Creek in Goshen County, Wyoming, made by the predecessors in interest of the defendant. The State Board of Control entered an order declaring that the water rights had been abandoned. On appeal to the district court, it entered a judgment reversing the order of the State Board of Control and denied a forfeiture of the water rights. From an order of the district court granting a new trial to the plaintiff, the defendant appeals.

Reversed with Instructions.

For the defendant and the appellant, there was a brief by Erle H Reid of Torrington, Wyoming, and Mothersead and York of Scottsbluff, Nebraska, and oral arguments by Mr. Reid and Mr York.

The trial court was without jurisdiction to grant a new trial. Borowicz v. Hamann (Wis.) 207 N.W. 426; Edelstein v. Levine, 228 N.W. 568; Warehouse Company v. Taylor, 77 S.W.2d 1031; Sinko v. District Court, 208 P. 952; Connor v. Automobile Ins. Co., 9 P.2d 863; Kraft v. Lampton, 57 P.2d 171. The State Board of Control had jurisdiction only to consider the question of forfeiture for nonuser, as defined in § 122-421, R. S. 1931; § 122-422, R. S. 1931. On review in the District Court no issues could be considered except those that were before the State Board of Control. Van Tassell Real Estate and Live Stock Company v. City of Cheyenne, 54 P.2d 906; Swan v. Justices of Superior Court, 111 N.E. 396; Wharf Company v. Coal Company, 54 N.Y.S. 566; Railroad Company v. County (Iowa) 122 N.W. 820; Summers v. Automobile Ins. Co., 230 N.W. 449. The only issue is the question of nonuser for five years immediately preceding the institution of the action. Smith v. Hawkins, 100 Cal. 122, 42 P. 453; Van Tassell Company v. Cheyenne, supra. The forfeiture provided for by Section 122-421, R. S., is not effective until declared. U. S. v. Whitney, 176 F. 593; R. Co. v. Washington R. Co., 219 U.S. 166; Bybee v. Oregon & California R. R. Co., 139 U.S. 663; Carns v. Reservoir Company (Idaho) 202 P. 1071. Abandonment as distinguished from forfeiture for nonuser requires an intent to abandon. Kinney on Irrigation, 2d Ed., Sec. 1101; Weil Water Rights, 2d Ed., Sec. 230; Van Tassell Company v. Cheyenne, 54 P.2d 906; Wyoming Hereford Ranch Company v. Hammond Packing Company (Wyo.) 236 P. 764. Forfeitures being abhorred the evidence of abandonment must be clear and satisfactory. Kinney on Irrigation, 2d Ed., Sec. 1116. The right to have abandonment declared for nonuser for the period between 1888 to 1908 was lost by laches and it was unnecessary to formally plead laches. Richards v. Mackall, 124 U.S. 183; Baptist Church v. United Baptist Church (Ky.) 129 S.W. 543; Badger v. Badger, 2 Wall. 94; Taylor v. Slater, 21 R. I. 104; Coon v. Seymour, 71 Wis. 340; Melms v. Pabst Brewing Company (Wis.) 66 N.W. 518; Warburton v. Davis (Md.) 91 A. 163; Hughes v. Kershow (Colo.) 93 P. 1116; Suhr v. Lauterbach (Cal.) 130 P. 2. The plaintiff would not be "affected" by a declaration of abandonment within the meaning of Section 122-422, R. S. 1931. Harris v. Friend, 24 N. M. 627; McCormick v. Central Coal and Coke Co. (Kans.) 232 P. 1071; Butterfield v. Butler (Okla.) 150 P. 1078; U. S. v. Haga, 276 F. 41; State v. American Fruit Growers (Wash.) 237 P. 498; Water Supply & Storage Co. v. Reservoir Company (Colo. ) 53 P. 386. The case presents two main questions, viz: (1) Did the District Court have any jurisdiction to grant a new trial eighteen days after being notified that the record on appeal and specifications of error were on file in the Clerk's office? (2) If the Court had jurisdiction was there any ground for granting a new trial? The second proposition must be further subdivided: (a) What was the real issue before the Court? (b) If the issue was properly presented as to the question of abandonment occurring some time between the years 1888 and 1908, was there any evidence from which the court could decree such abandonment? The authority of the District Court to grant a new trial is specified by Section 89-4910, R. S. 1931. This statute has been considered by this court in Allen v. Lewis, 177 P. 433; Carstensen v. Brown, 185 P. 567; McClintock v. Ayres, 245 P. 298. Other authorities dealing with the question are: Borowicz v. Hamann, 207 N.W. 426; Linglebah v. Carriveau, 248 N.W. 117; Edelstein v. Levine, 228 N.W. 568; Dallas Co. v. Taylor, 77 S.W.2d 1031; Mfg. Company v. Court (Calif.) 250 P. 705; Rubens v. Whittemore, 38 P.2d 153. The method of application of water is immaterial. McCall v. Porter (Ore.) 70 P. 820; Morris v. Bean, 146 F. 423. Abandonment was not an issue in the case. § 122-422, R. S. 1931 is the sole authority for this proceeding before the Board of Control. It is clear that the Board was without jurisdiction to act. The issues presented in the District Court must be the same as before the Board of Control. The proceedings in the District Court are in the nature of a review. Van Tassell v. Cheyenne, supra; Swan v. Court, 111 N.E. 396; Dumas v. Trustees (N. C.) 95 S.E. 775; R. Company v. County (Iowa) 122 N.W. 820; Summers v. Automobile Ins. Company, 230 N.W. 449. The forfeiture provided by section 122-421 does not become effective until declared. Bybee v. R. Co., 139 U.S. 663; Carns v. Reservoir Co., 202 P. 1071. The evidence would not justify a finding of abandonment between 1888 and 1908. 2 Kinney on Irrigation, Sec. 1101; Van Tassell Company v. Cheyenne, supra; Hereford Ranch v. Hammond Packing Company, 33 Wyo. 14. A plea of laches is unnecessary. Richards v. Mackall, 124 U.S. 183; American Mining Company v. Mining Company (Mont.) 104 P. 525; Taylor v. Slater, 21 R. I. 104, 41 A. 1001; Coon v. Seymour (Wis.) 37 N.W. 243; Warburton v. Davis (Md.) 91 A. 163; Hughes v. Kershow (Colo.) 93 P. 1116; Suhr v. Lauterback (Cal.) 130 P. 2. Plaintiff could not be "affected" by a declaration of abandonment. Harris v. Friend, (N. M.) 175 P. 722; McCormick v. Coke Company (Kans.) 232 P. 1071; Hodgson v. Midwest Oil Co., 17 F.2d 71; Hagie v. Lincoln Land Company, 18 Fed. Sup. 637; Ranch Company v. Hammond Company, supra. The record fails to show a secondary permit for the use of water through what is referred to as 66-Pastures Reservoir. The trial court had no jurisdiction to grant a new trial. If it had jurisdiction, there was no ground for granting it.

For the respondent, there was a brief by James A. Greenwood of Cheyenne and John L. Sawyer of Torrington, and oral argument by Mr. Greenwood.

Appellant seeks a reversal of an order by the trial judge granting a new trial under Section 89-4910, R. S. 1931. The order of the trial court is based upon substantial evidence and should not be disturbed. Montgomery Ward & Co. v. Arbogast (Wyo.) 81 P.2d 885. The language of section 89-4910, R. S. 1931 raises a question of jurisdiction. Allen v. Lewis, 26 Wyo. 85; Miller v. New York Oil Company (Wyo.) 235 P. 323; Coffee v. Harris, 27 Wyo. 494, 199 P. 931; State v. Genero (Wyo.) 271 P. 17; Carstensen v. Brown (Wyo.) 185 P. 567. The dereliction of the Clerk should not defeat the substantial rights of a litigant to have the trial court review the record. Samuelson v. Tribune Publishing Company, 41 Wyo. 487; Lincoln Land Company v. Burritt, 50 Wyo. 223. The issue was whether the water rights were abandoned. § 122-427, R. S. 1931. There was no evidence from which the court could decree abandonment, even if that issue was properly presented. Elliott v. Sloan, 38 Wyo. 282. Specifications of error by appellant were unnecessary. Elliott v. Sloan, supra. The issue was whether the water right had been used. Van Tassell Company v. Cheyenne, 49 Wyo. 333. The language of § 122-421, R. S. 1931 is clear. It states that failure to use the water for beneficial purposes during any five successive years is an abandonment. Wyoming Hereford Ranch v. Hammond Packing Company, 33 Wyo. 14; Hewitt v. Storey, 64 F. 510; Long on Irrigation, p. 328, § 181. An abandonment of a water right cannot be established in the absence of an express declaration of intent to that effect. Long on Irrigation, § 185; Van Tassell v. Cheyenne, supra; 2 Kinney on Irrigation, 2d Ed. 1103, et seq.; Anderson Land Company v. McConnell, 188 F. 818; Hewitt v. Storey, supra; Smith v. Hawkins, 42 P. 453; Gila Water Company v. Green, 241 P. 307; In re Willow Creek, 146 P. 475; Moran v. Horsky, 178 U.S. 205. Intent may be based on the conduct of the parties. District of Columbia v. Thompson, 281 U.S. 25; Deseret Company v. Hooppiania, 239 P. 474; Hammond v. Johnson, 66 P.2d 894; Hutchinson v. Stricklin, 28 P.2d 225; Commonwealth v. Water Users' Ass'n., 45 P.2d 622. A water right may be lost by laches. Washington v. Oregon, 297 U.S. 517; Hurst v. Reservoir Company, 246 P. 24. A right lost is not subject to reversal. Coffee v. Harris, 27 Wyo. 494. The order of the trial court granting a new trial should be affirmed.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

So far as appellate procedure is concerned, this cause is here pursuant to the provisions of Section 89-4910, W. R. S. 1931 a portion of the law governing direct appeals to this court for the purpose of obtaining the review of an order of the district court of Goshen County granting a new trial. The appellant, Lincoln Land Company, will be generally hereinafter referred to as the "defendant" or the "Land Company," and the respondent, Horse Creek Conservation District, as the "plaintiff" or the "District." While...