Horse Creek Conservation District v. Lincoln Land Co., 1983

• Decision Date: 21 July 1936
• Docket Number: 1983
• Citation: 59 P.2d 763,50 Wyo. 229
• Parties: HORSE CREEK CONSERVATION DISTRICT v. LINCOLN LAND COMPANY
• Court: Wyoming Supreme Court

59 P.2d 763

50 Wyo. 229

HORSE CREEK CONSERVATION DISTRICT v. LINCOLN LAND COMPANY

No. 1983

Supreme Court of Wyoming

July 21, 1936

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

Proceeding for a declaration of abandonment of a water right by the Horse Creek Conservation District against the Lincoln Land Company. From an order of the district court dismissing the proceedings after the board of control had entered an order declaring the water right abandoned, the defendant appeals.

Reversed and remanded.

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

The proceeding was commenced under Section 122-422, R. S. 1931 for a declaration of abandonment of the water right for Horse Creek Ditch Company No. 1, Priority No. 52. The hearing was had before the State Board of Control on petition of Horse Creek Conservation District on April 20, 1934, declaring the water right for Horse Creek Ditch No. 1, Priority No. 52 to be abandoned in its entirety. Said order was filed in the office of the district court of Goshen County, Wyoming, and a notice issued to Lincoln Land Company on July 9, 1934. A further notice was issued on November 17, 1934, of the order declaring abandonment of said water right, which notice was served by the sheriff. Thereafter objections to the jurisdiction of the district court of Goshen County, Wyoming were made by special appearance on behalf of Lincoln Land Company. It sought by petition the removal of the cause to the United States District Court for the District of Wyoming, which petition was granted. Upon hearing in the United States court on March 22, 1935, objections of the Horse Creek Conservation District to jurisdiction were sustained and the cause was remanded to the state court. On January 15, 1936, objections to the jurisdiction were sustained by the district court of Goshen County. From that order the cause was appealed to this court. The omission of the State Board of Control to file a certified copy of its order of April 20, 1934, with the clerk of the district court of Goshen County, Wyoming, within sixty days thereafter did not defeat the jurisdiction of the district court. Fischer v. Davis, et al., (Idaho) 133 P. 910; Lumber Company v. Nelson, (Idaho) 218 P. 367; Mining Co. v. Patrick, (Ida.) 218 P. 367; State v. Ricks, et al., (Idaho) 201 P. 827; Moody v. Crane, (Idaho) 199 P. 652; Durand, et al. v. Gage, (Mich.) 43 N.W. 583; Goetz Company v. Waln, (Nebr.) 139 N.W. 230; Armstrong v. Spokane International Ry. Co., (Wash.) 172 P. 578; Insurance Company v. Phinney, 178 U.S. 327; Hoff v. Shockley, (Iowa) 64 L.R.A. 538; Rawleigh Company v. Laursen, (N. D.) 48 L.R.A. (L.R.A.) 198; Snuffer v. Spangler, (W. Va.) L.R.A. 1918E, 149; Mining Co. v. Reed, (Idaho) 153 P. 564; Reynolds v. Morton, 22 Wyo. 478; Holliday v. Bundy, 42 Wyo. 61. The decision of the State Board of Control is a final determination of the question before it for consideration in the absence of a review by the district court upon objections filed thereto. Const. Article VIII, Section 2; Secs. 122-426-427, R. S. 1931; Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14; Farm Investment Co. v. Carpenter, 9 Wyo. 110; Van Tassell Company v. Cheyenne, (Wyo.) 54 P.2d 906. The filing of a copy of the decision of the State Board of Control enables any person objecting thereto to have the decision reviewed by the district court. The review proceedings are not a condition precedent to the binding effect and finality of the decision of the Board of Control. The district court had jurisdiction. Reynolds v. Morton, supra. Failure of the board to transmit the order within the sixty-day period is not a ground for defeating the jurisdiction of the district court to review the board's order. Such failure does not shorten the period within which objections may be filed. Insurance Company v. Phinney, supra; Holliday v. Bundy, et al., supra. The filing of a decision by the board is not a part of the appellate proceedings. The decision of the State Board of Control is valid and may be reviewed by the district court. Sec. 89-4802, R. S. If no objections are filed, the district judge should enter an order affirming the decision of the board. Section 122-427, R. S. The district court may hear objections under the same statute. The order of the district court should be reversed with directions that the parties proceed to have the decision of the board reviewed, if respondent desires such review, by the filing of objections in accordance with the requirements of Sec. 122-427, R. S. 1931. Failure to file certified copy of order of abandonment of the Board of Control * * * is jurisdictional. Sangren v. Bundy, 42 Wyo. 66; Copper Company v. Board, 42 Wyo. 67; Bolln Company v. Freeman, 42 Wyo. 375; Caldwell v. State, 12 Wyo. 206; Goodrich v. Bank, 26 Wyo. 42; Porter v. Carstensen, 44 Wyo. 49; Samuel v. Christensen, 47 Wyo. 331; Samuelson v. Tribune Company, 41 Wyo. 487; Lion Coal Company v. Contas, 42 Wyo. 94.

For the defendant and respondent, there was a brief by John C. Pickett of Cheyenne, Wyoming, and Mothersead & York of Scottsbluff, Nebraska, and oral arguments by Messrs. Pickett and York.

The findings and order of abandonment by the State Board of Control were not filed in the office of the clerk of court of Goshen County, Wyoming, until July 9, 1934, eighty days after the order was made, and summons was not issued therein until November 17, 1934. The respondent filed objections to the jurisdiction of the court; the case was removed to the federal court and was thereafter remanded to the state court and the objections to the jurisdiction of the state court were heard on January 15, 1936, which were sustained, and the plaintiff has prosecuted its appeal to this court. The only question involved is whether Section 122-427, R. S. 1931, requiring the filing of a certified copy of the decision of abandonment, is mandatory and jurisdictional. The proceedings for determination of the abandonment of a water right by the State Board of Control are purely statutory. Sections 122-422-427, R. S. 1931. The proceeding is unknown to the common law * * * and the filing of the order of abandonment in the office of the clerk within the sixty-day period is mandatory in order to obtain jurisdiction. Partee v. Railroad Company, 204 F. 970 (8th Cir.); Harrisburg v. Rickards, 119 U.S. 199; Hilty v. Company, 82 F.2d 77 (9th Cir.); Rogulj v. Mining Company, 288 F. 549 (9th Circuit). Failure to file the order of the Board of Control within the specified time defeats the jurisdiction. Coffee v. Harris, 27 Wyo. 394; Harvester Company v. Lumber Company, 25 Wyo. 367; Arnold v. Nichols, 25 Wyo. 458; Griffis v. State, 23 Wyo. 303; Foree v. State, 14 Wyo. 296; State v. Blake, 5 Wyo. 107. If the procedure is considered as an involuntary arbitration, the rule as to arbitrations is that unless the award is filed in court within a specified time, the court acquires no jurisdiction and the award is of no avail. 5 C. J. 122; Bent v. Telephone Company, 144 Mass. 165; Abrams v. Brennan, 84 P. 363. Considering the Board of Control as an inferior tribunal, the rule is established that a successful litigant before an inferior tribunal loses the benefit of his judgment if such inferior tribunal fails to act within the time limited by statute. Worrall v. Chase, 144 Iowa 655; Worley v. Shong, (Nebr.) 53 N.W. 72; May v. Grawert, (Minn.) 90 N.W. 383. The order of abandonment made by the Board of Control has no effect without review in court. Van Tassel Company v. Cheyenne, 54 P.2d 906; Re Willow Creek, 144 P. 505; Livestock Company v. Lewis, 241 U.S. 440. Appellant relies on the case of Reynolds v. Morton, 22 Wyo. 478, but the point was not decided in that case. An examination of authorities cited by appellant shows that no jurisdictional question was involved, such as in the present case. The hearing before the board is in the nature of an inquiry had before the commencement of suit. Section 122-427, R. S. The trial in the district court is de novo on the issue as to whether water rights have been abandoned. It takes judicial action to vitalize and give effect to the order of the Board of Control. Van Tassel Company v. Cheyenne, supra. The rule requiring a thing to be done within the time fixed by the statute is applicable to the case at bar. There is no provision authorizing an enlargement or extension of the time and it was the duty of the Goshen County court to dismiss these proceedings, the record showing that the statute had not been followed. There is no provision for extending the sixty-day period required by the statute, within which the declaration of abandonment must be filed in the district court, and said declaration not having been filed as the statute requires until some eighty days had expired, the district court acquired no jurisdiction.

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

OPINION

KIMBALL, Chief Justice.

This is a proceeding under sections 122-422 to 122-427, R. S. 1931, to bring about a declaration of abandonment of a water right for lands in Goshen County.

Section 122-421 declares that a water right shall be limited and restricted to so much thereof as may be necessarily used irrespective of the carrying capacity of the ditch, and that all the balance of the water not so appropriated shall be allowed to run in the stream, and shall not be considered as having been appropriated; and in case the owner of any irrigation works shall fail to use the water therefrom for beneficial purposes during any five successive years, he shall be considered as having abandoned the same, and shall forfeit all water rights, easements and privileges appurtenant thereto, and the water formerly appropriated...