In re Goshen District

• Decision Date: 19 November 1930
• Docket Number: 1578
• Citation: 42 Wyo. 229,293 P. 373
• Parties: IN RE GOSHEN DISTRICT; v. GOSHEN IRRIGATION DISTRICT, ET AL LINCOLN LAND CO.
• Court: Wyoming Supreme Court

293 P. 373

42 Wyo. 229

IN RE GOSHEN DISTRICT;

LINCOLN LAND CO. v. GOSHEN IRRIGATION DISTRICT, ET AL

No. 1578

Supreme Court of Wyoming

November 19, 1930

APPEAL from District Court, Goshen County; CYRUS O. BROWN, Judge.

Proceedings by the Goshen Irrigation District and Board of Commissioners for assessment of benefits and cost of construction. From a judgment overruling objections by the Lincoln Land Company to the inclusion of certain lands within district, the objector appeals.

Affirmed.

For the appellant there was a brief by John L. Sawyer, of Torrington Wyoming, and Mothersead & York, of Scottsbluff, Nebraska, and oral argument by Mr. Sawyer, Mr. Mothersead and Mr. York.

Appellant being the owner of more than one hundred sixty acres in Federal Reclamation projects, the only source of water supply for the irrigation thereof being under a government contract the Irrigation District cannot furnish any water for irrigation to appellant. Rec. Act. Sec. 5, 43 U.S.C. A. 431; Warren Act., Secs. 1, 2, 43 U.S.C. A. 523, 524. If land will not be specially benefited there can be no special assessment. 25 R. C. L. 139; Norwood v. Baker, 43 L.Ed. 443; Owenboro v. Sweeney, 129 Ky. 607, 111 S.W. 364; Kalamazoo v. Crawford, 154 Mich. 518, 117 N.W. 572; Elliott v. Macree, (Ida.) 130 P. 785; Gourd v. Morrison, (Minn.) 136 N.W. 874; Williams v. Osborn, (Ind.) 104 N.E. 1027; Doughen v. Camden, 63 A. 170; Watson v Armstrong, (Ind.) 102 N.E. 373; Union Trust Co. v Carnhope Irr. Dist., (Wash.) 232 P. 341; Witcher v. Bonneville Irr. Dist., (Utah) 236 P. 785; Cosman v. Chesnut Valley Irrigation, (Mont.) 238 P. 879; Myles v. Brd. of Comm'rs., (U. S.) 60 L.Ed. 392; Laycock, et al. v. Lake Chelan Rec. Dist., 214 P. 1054; Proprietors Mt. Auburn Cem. v. Brd. of City of Cambridge, et al., (Mass.) 22 N.E. 66. Levies made for irrigation districts, are apportioned according to benefits to particular lands. Sullivan v. Blakesley, (Wyo.) 256 P. 918; Erickson v. Nine Mile Irr. Dist., 109 Neb. 189; Interstate Trust Co. v. Montezuma Valley Irr. Dist., (Colo.) 181 P. 123; Fallbrook Irr. Dist. v. Bradley, 41 L.Ed. 369; Witcher v. Bonneville Irr. Dist., (Utah) 236 P. 341; Laycock, et al. v. Lake Chelan Rec. Dist., 214 P. 1054. Assessments without special benefits violate constitutional rights. Norwood v. Baker, supra. Property includes the thing itself and right to use and benefit thereof. Buchannan v. Warley, (U. S.) 52 L.Ed. 149; McInnis v. McCabe, 141 A. 699. A flat assessment regardless of benefits cannot be sustained. Wyoming Comp. Stats., Sec. 964; Cosman v. Chesnut Valley Irr. Dist., (Wash.) 232 P. 879; Union Trust Co. v. Carnhope Irr. Dist., (Wash.) 232 P. 341; Rec. Dist. No. 537 v. Berger, (Cal.) 55 P. 156; Kersteen v. City of Milwaukee, (Wis.) 81 N.W. 948; Town of Alma v. Carney, (Wash.) 37 P. 707; State ex rel. Cunningham v. Dist. Court of Ramsey Co., (Minn.) 11 N.W. 133. The principle of estoppel cannot apply as against appellant. 10 R. C. L. 692; Greey v. Dockenclark, 58 L.Ed. 339; Fraser v. Portland, (Ore.) 158 P. 514; City of Henderson v. Lieber, (Ky.) 192 S.W. 830; Dennison v. Dawes, (Me.) 117 A. 314; Dibson v. Babes, (Mass.) 63 N.E. 908; Newhall v. Hatch, (Cal.) 66 P. 266; Beechley v. Beechley, (Ia.) 108 N.W. 762; Sheffield Car Co. v. Constantine Hydraulic Co., (Mich.) 137 N.W. 305; New York Rubber Co. v. Roshey, (N. Y.) 14 N.E. 269; Blanck v. Pioneer Mining Co., (Wash.) 159 P. 1077; Campbell v. Lynch, (W. Va.) 106 S.E. 869. There was no intent to defraud. Milburn v. Michel, (Md.) 112 A. 581; Shipler v. Potomac Copper Co., 220 P. 1097. Evidence will be construed against estoppel if possible. 10 R. C. L. 845; Standard Sanitary Mfg. Co. v. Arrott, 135 F. 750; Hougen v. Skjeroheim, (N. D.) 102 N.W. 311; Campbell v. Lynch, (W. Va.) 209 S.E. 869; International Text Book Co. v. Pratt, (Colo.) 158 P. 712; Mackey Wall Plaster Co. v. U. S. Gypsum Co., 244 F. 275; White v. Continental Nat. Bank, 64 N.Y. 316; Jewell v. Huhn, (Ia.) 155 N.W. 174.

For the respondents there was a brief by W. J. Burke, of Billings, Montana, and Reid & More, of Torrington, Wyoming, and oral argument by Mr. Reid.

The burden of proof was upon remonstrant. 987 C. S. Hunt v. Laramie, (Wyo.) 181 P. 137. Findings on conflicting evidence will not be disturbed. Baylies v. Vandenboom, 278 P. 551; Stahley Co. v. Beckstead, 192 P. 1056; McMahon v. Co., (Wyo.) 252 P. 1027; Kamp v. Kamp, 254 P. 689; and cases cited. Appellants' lands are benefited and the assessments are valid. The Reclamation Act does not limit holdings. 43 U.S.C. A., Secs. 511-513. Appellants' lands were benefited. Synod v. State, (S. D.) 50 N.W. 632; Garrett v. St. Louis, 69 Am. Dec. 475; R. R. Co. v. Stickney, 37 N.E. 1098; Fahnestock v. Peoria, 49 N.E. 496; Barr v. Omaha, (Nebr.) 60 N.W. 591; Lipes v. Hand, (Ind.) 1 N.E. 874; Henderson Mills v. Trigg, 27 N.W. 577; Ball v. Merriam, 245 S.W. 1012; R. R. Co. v. Paving Co., 197 U.S. 430; R. R. Co. v. Decatur, (Ga.) 73 S.E. 830; R. R. Co. v. Seattle, (Wash.) 91 P. 244; benefits were properly assessed. R. R. Co. v. Co., 197 U.S. 430. The commissioners made a proper report. 964 C. S. Sullivan v. Blakesley, (Wyo.) 246 P. 918; Laws 1925, Ch. 52; 43 U.S.C. A. Chap. 12, page 702. Appellant acquiesced in the contract of which it complains and is therefore estopped, to question an assessment for benefits. Laws 1925, Ch. 53. Appellants' lands were properly included. 951 C. S. The contract with the United States was valid. 963 C. S. As amended by Laws 1923, Ch. 53; U.S.C. A. 462-473-500. Appellant had legal notice. 14 C. J. 922. Kranich v. Bach, 204 N.Y.S. 320; Packing Co. v. Doermann, 293 F. 315; McCullough v. Satterwait, 11 F.2d 111-114; Wright v. Co., (N. C.) 136 S.E. 716. Acquiescence may exist even where complete estoppel in pais is not shown. Pollitz v. Wabash R. Co., (N. Y.) 100 N.E. 721; Rothchild v. Co., (N. Y.) 97 N.E. 879. Appellant's action is a collateral attack, upon a contract in the absence of one of the parties thereto. Barnigan v. Schenck, et al., (S. D.) 208 N.W. 718; In re King Hill Irr. Dist., 221 P. 839.

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

OPINION

KIMBALL, Justice.

This appeal presents questions affecting the legality of the assessment of benefits and construction charges by respondent, Goshen Irrigation District, against lands of appellant, Lincoln Land Company, for irrigation works constructed by the United States as a part of the Ft. Laramie Unit of the North Platte irrigation project.

The North Platte Project was one of the first projects undertaken by the United States under the Federal Reclamation Act of June 17, 1902 (32 Stat. 388). The project was divided into the Interstate and Ft. Laramie Units. The Interstate Unit, which is not affected by this controversy, was constructed first. The construction of the works for the Ft. Laramie Unit was long delayed, and not undertaken until 1915. (Report of Reclamation Service, 1915-1916, p. 271). The irrigable lands in this unit include a considerable acreage held in private ownership. In May, 1912, the consulting board made a report recommending commencement of construction on condition that at least 95 per cent. of the owners of deeded lands sign trust deeds, thereby insuring the repayment of the building charges to the reclamation fund. This recommendation was approved by the Secretary of the Interior, and forms of trust deeds were submitted to the landowners for signatures. (Reports of Reclamation Service, 1911-1912, p. 127; 1913-1914, p. 191). Later, by Section 12 of the Reclamation Extension Act of Aug. 13, 1914 (38 Stat. 689, [43 USCA, Sec. 418]), it was provided:

"That before any contract is let or work begun for the construction of any reclamation project hereafter adopted the Secretary of the Interior shall require the owners of private lands thereunder to agree to dispose of all lands in excess of the area which he shall deem sufficient for the support of a family upon the land in question, upon such terms and at not to exceed such price as the Secretary of the Interior may designate; and if any landowner shall refuse to agree to the requirements fixed by the Secretary of the Interior, his land shall not be included within the projects if adopted for construction."

It seems that the Secretary of the Interior was unwilling to authorize construction of the Ft. Laramie Unit until the deeded lands were pledged for their proportionate part of the cost of construction. For some time, the department was insisting on trust deeds covering 95 per cent. of the deeded lands, as recommended in 1912 by the consulting board, but in October, 1914, the Secretary reduced the requirement to 90 per cent. June 7, 1915, there was made to the director and chief engineer of the reclamation service report "to the effect that 90 per cent. of the irrigable area in private ownership was then subscribed, and shortly thereafter direction was given that final location surveys be made for the purpose of early advertisement of earthwork and the beginning of construction." The first advertisement was made August 7, 1915. (Report of Reclamation Service, 1915-1916, pp. 271, 272).

The appellant, Lincoln Land Company, was the owner of much of the deeded lands included in the Ft. Laramie Unit. For convenience in discussion, the appellant's lands have been divided into two tracts, one, the Rock Ranch lands, which may be disregarded for the present; the other, the Horse Creek lands, of which we now speak.

On May 12, 1915, the appellant as grantor gave a trust deed of its Horse Creek lands to the Wyoming Trust and Savings Bank. The deed bears the endorsement "Form approved by Secretary of Interior January 21, 1915," and contains these recitals or premises:

"WHEREAS the lands hereinafter described lie within the...