Hunt v. City of Laramie

• Decision Date: 02 June 1919
• Docket Number: 962
• Parties: HUNT v. CITY OF LARAMIE
• Court: Wyoming Supreme Court

181 P. 137

26 Wyo. 160

HUNT v. CITY OF LARAMIE

No. 962

Supreme Court of Wyoming

June 2, 1919

ERROR to District Court, Albany County; HON.W. C. MENTZER, Judge.

James Hunt, as executor of the last will and testament of Alice Hunt, deceased, applied to the State Engineer for a permit to divert and appropriate waters. The application was rejected and, on appeal to the State Board of Control, the ruling of the State Engineer was reversed, and the City of Laramie claiming ownership of the waters applied for, appealed to the District Court, where a judgment was rendered in its favor petitioner and the Board of Control bring error.

Affirmed.

S. C Downey and W. L. Walls, attorney general, for plaintiff in error.

The City of Laramie was not an aggrieved party within the meaning of Section 733, Comp. Stats. 1910, or Section 779, Comp. Stats. 1910. (Dailey v. Anderson, 7 Wyo. 1, 48 P. 839; McFarland v. Pierce, 45 N.E. 706; Phillips v. Levy, 3 N.Y.S. 664; Kineally v. Macklain, 67 Mo. 95; State ex rel. Kineally v. Boyd, 6 Mo.App. 57-58; Street v. Bradstreet, 33 Mass. 264; Tellinghaust v. Brown Univ. 52 A. 891-892; Ross v. Wigg, 3 N.E. 180-181.) The appeal bond was insufficient, not being signed by the city. (28 Cyc. 140.) The court erred in admitting the contract in evidence on rebuttal. The contract was not established as an existing and valid contract between the city and its grantor. A contract between parties rendered void by nonperformance cannot adversely affect the interests of third parties, or establish the right of a third party to appeal from a ruling of the Board of Control. The petition on appeal was unverified. Verification is required. (Section 4422 Comp. Stats. 1910. Conn v. Rhodes, 26 O. S. 644; Hanover v. Sperry, 35 O. S. 245; Bingham v. Hill, 38 O. S. 657; State v. Sullivan, 15 C. C. 477.) A pleading without verification where such is required has no standing. (Waites Prac., Vol. 11, p. 243; 22 Enc. P. P. 1040.) The motion to strike should have been sustained. (Warner v. Warner, 11 Kans. 100.) The Board of Control is a necessary party on appeal from its decisions, and this is especially true if the real party in interest should refuse to follow the appeal. Moreover, the attorney general is required to appear on behalf of the Board of Control in such cases. (Sections 733, 780, 781 and 783, Comp. Stats. 1910.) A party failing to offer evidence but appearing merely to cross-examine witnesses of the adverse party acquires no appealable interest. The city's grantor had submitted himself to the jurisdiction of the State water officers in seeking an appropriation of the water in question, and is for that reason estopped from denying the jurisdiction of State water officers in the premises. The State having acquired jurisdiction, retained it. (Const., Art. II, Sec. 31; Art. VIII, Sec. 1.)

Cortherr, McCollough & Corthell, for defendant in error.

The water in question is an artificial supply of a private as distinguished from a public character, and the Board of Control has no jurisdiction to permit its appropriation and no rights were acquired by Hunt under his permit. State waters are defined by the Const., Art. VIII, Sec. 1. The supervision of the Board of Control is limited to waters of the State. (Const., Id. Art. VIII, Sec. 2.) A water right is a right to use waters of the State. Section 724, Comp. Stats. 1910, appropriations of which are initiated by application to the State Engineer for permit. The law of natural water courses does not apply to waters artificially developed. (Wiel, 52 and 53.) The question of jurisdiction persisted throughout the proceedings and was fundamental at all stages thereof. The question was determined by the Ditrict Court in favor of defendant in error and against plaintiffs in error upon the evidence. If there was evidence to sustain this finding, it will not be disturbed on appeal. (Ketchum v. Davis, 3 Wyo. 164, 167; Columbia C. M. Co. v. Dutchess M. M. & Co., 13 Wyo. 244, 256; Slothower v. Hunter, 15 Wyo. 189, 204; Riordan v. Horton, 16 Wyo. 363, 374; Yount v. Strickland, 17 Wyo. 526, 534; City of Rawlins v. Murphy, 19 Wyo. 238, 252; Saratoga Land & Inv. Co. v. Jensen, 20 Wyo. 323; Stockgrowers Bank v. Gray, 24 Wyo. 18, 40.) There is abundant evidence to sustain the findings of the trial court. The appeal was executed by the City of Laramie, as principal, and by A. C. Jones, as surety. The body of the bond and attestation clause show it to be an obligation of the city. It was executed by the mayor and clerk under the seal of the city. The omission of the name of the city at the end of the instrument is immaterial. The point urged as to the verification of the original petition is without merit. An amended petition was subsequently filed upon which the case proceeded and there was no question as to its verification. The fact that Pope applied to the State for a permit could not confer jurisdiction where jurisdiction did not exist. Jurisdiction cannot be conferred by consent. (11 Cyc. 673.) The private character of the waters was established by evidence of physical facts and conditions; the doctrine of estoppel does not apply. The case lacks all the elements of estoppel. (Gustin v. Harting, 20 Wyo. 1.) Hunt, by sharp practice, sought to appropriate the benefits of labor and expenditures by the city and its grantor, Pope. The city has prosecuted its claim with diligence. The judgment should be affirmed.

BURGESS, DISTRICT JUDGE. POTTER, J., and WINTER, DIST. J., concur. HON CHARLES E. WINTER and HON. JAMES H. BURGESS, DISTRICT JUDGES, were called in to sit in place of BEARD, C. J., and BLYDENBURGH, J., who were unable to sit by reason of illness.

OPINION

BURGESS, DISTRICT JUDGE.

On June 5, 1913, James Hunt, as executor of the last will and testament of Alice Hunt, deceased, caused to be filed in the office of the State Engineer of the State of Wyoming an application for a permit to divert and appropriate, through the means of a ditch, for irrigation and stock purposes, the waters of a certain spring situated in Albany County, Wyoming, and known as "Pope Spring". On June 30, 1914, the State Engineer rejected the application and endorsed thereon as the reason therefor, "Owing to insufficient water supply, the proposed ditch is not feasible." From this action of the State Engineer Hunt appealed to the State Board of Control of the State of Wyoming, which, on January 19, 1915, entered an order sustaining the action of the State Engineer in rejecting the application, for the reason, as stated in the order, "That the source of supply is underground and artificially developed." A rehearing of the matter having been granted by the Board, the proceedings finally resulted in an order and determination, November 17, 1915, setting aside its order dated January 19, 1915, reversing the action of the State Engineer, and requiring that the application be granted. In this final order the Board found that the waters of Pope Spring were subject to appropriation. In the proceedings before the Board resulting in the order and determination of November 17, 1915, the City of Laramie appeared and participated therein.

On December 10, 1915, the City of Laramie filed in the District Court of Albany County, Wyoming, its notice of appeal and appeal bond, and on December 17, 1915, its notice of perfecting appeal. On May 11, 1916, it filed in said court its petition on appeal, which was superseded by an amended petition filed March 29, 1917. In its amended petition the City of Laramie alleged, among other things, that the waters of Pope Spring, which were sought to be appropriated under the application of Hunt, were not the waters of any natural stream, spring, lake or other collection of still water, but were waters wholly discovered and developed artificially by excavation and other artificial means by one Pope, who was the owner of the lands upon which the spring in question was and is situated, and that the waters of said spring were the absolute property of said Pope; that by an agreement in writing dated February 14, 1915, between it and Pope and others, whom he had associated with him in the ownership and control of these waters, the city acquired the right to purchase said waters and to enter into the possession thereof, and, further, to explore and develop the same, and that it became obligatory upon the city to make such purchase upon the conditions set forth in the agreement; that thereafter it had entered into the possession of said waters and was using the same; that Hunt, assuming to act under and by virtue of the authority of the permit of appropriation approved by the Board of Control, had gone upon the land upon which said spring was situated and constructed ditches and other conduits and waterways, and had seized and led away the waters of said spring.

An answer was filed admitting many of the allegations of the petition, but denying, among other things, that the waters of the spring were developed artificially or that the waters were the property of the said Pope.

The cause having come on for trial, the District Court rendered judgment on November 27, 1917, and found generally in favor of the City of Laramie.

Hunt, as executor, and the Board of Control having filed motions for new trial, which were overruled, have brought the case here by proceedings in error.

The plaintiffs in error, in seeking a reversal of the judgment, contend:

First: That the Board of Control was a necessary party to the appeal taken by the City of Laramie in this case to the district Court from the order of the Board of Control granting the application of Hunt, and that it was not made a party.

There is no statute requiring in appeals of this nature from the State Board of Control to the District Court that...