In re Water Rights In Big Laramie River

• Decision Date: 04 October 1920
• Docket Number: 781
• Citation: 27 Wyo. 88,192 P. 680
• Parties: IN RE WATER RIGHTS IN BIG LARAMIE RIVER. v. AKIN, ET AL PIONEER CANAL CO. ET AL
• Court: Wyoming Supreme Court

192 P. 680

27 Wyo. 88

IN RE WATER RIGHTS IN BIG LARAMIE RIVER.

PIONEER CANAL CO. ET AL v. AKIN, ET AL

No. 781

Supreme Court of Wyoming

October 4, 1920

Rehearing Denied December 13, 1920, Reported at: 27 Wyo. 88 at 121.

ERROR to the District Court, Laramie County; RODERICK N. MATSON Judge.

Proceedings for the adjudication of priority of the right to the use of the water of the Big Laramie River and its tributaries, which were instituted as provided by the statute by the filing with the State Board of Control claims of right by individuals and such contests by others against such individual claims as were filed under the statutory provisions. There were appeals from the order of the Board of Control to the District Court which appeals were consolidated and judgment rendered thereon. Several motions for new trial were filed and over ruled and the Pioneer Canal Co. and others bring error against Arthur M. Akin, the Wyoming Development Company and others. Heard on motion of the Wyoming Development Company to dismiss the proceedings in error. (See also 23 Wyo. 450; 153 P. 890.)

Proceedings in error dismissed.

John D. Clark and Avery Haggard, for Motion to Dismiss.

There is a defect of parties since service was attempted by publication on 36 defendants and also upon some 43 substituted defendants; the first publication, however, was not made within one year from the entry of the order over ruling the motions for new trial, and the proceedings were therefore not commenced in time as to defendants served by publication; said defendants are not united in interest and the service upon some one or more of them without serving all, will not confer jurisdiction or constitute a commencement of proceedings in error; the provisions of Sec 4305 C. S. 1910 apply by analogy to proceedings in error. (Caldwell v. State, 12 Wyo. 206; Lobel v. Oil Co., 19 Wyo. 170); the statute comes from Ohio and the rule is established there, (Snyders Exrs. v. Young, 72 O. St. 494; Buckingham v. Bank, 21 O. S. 131); failure to serve one necessary party defeats the jurisdiction, (Bank v. Clingian, 26 Okla. 150; 109 P. 69); in the above case the Court found a unity of interest within the meaning of the statute distinguishing the case from that of Wedd v. Gates, 15 Okla. 602; 82 P. 808; a unity of interest must be construed as meaning an interest similar to that of joint contractors, (36 Cyc. 1119). Constructive service was not gained upon defendants in error through a personal service had on his co-defendants in error nor by making them parties to the proceedings in error by publishing summons under Sec. 4305 C. S. 1910; the proceedings were not commenced as against defendant served by publication until more than one year and seven months from the date of the final order, nor was service thus had within 60 days of the attempt to commence the proceedings so as to entitle plaintiffs in error to the benefit of Sec. 4306 C. S. 1910. The attempt referred to in the brief of counsel is the issuance of the original summons in error on June 3, 1914, and was not followed by the service within 60 days; this Court indicated in its former opinion that if the original summons was duly served, the action will have been commenced in time, as the summons was issued within the time limited for commencing the same; (School District v. Fisher, 23 Okla. 9; 99 P. 646). In this case the alias summons was not issued within one year nor served within 60 days after the issuance of the first summons; the attempt specified in Sec. 4306 was not followed by service; the general rule is that all parties to a judgment are necessary parties on appeal or review, (3 C. J. 1014, 1035, 1218). Ordinary compliance with regulations as to appeals is necessary, (4 C. J. 565). In this case the rule has particular application since all of the parties are adverse contenders in a water right controversy, and it is obvious that they are necessary parties, (Davis v. Trust Co., 152 U.S. 590; Johnson v. Irrigation Co., 4 Wyo. 164; Simpson v. Greeley, 20 Wall. 152, 87 U.S. 152; Hampton v. Rouse, 13 Wall.; C. & C. T. 'S. Bank v. Const. Co., 205 F. 282; Kidder v. Fidelity Co., 105 F. 821; Dodson v. Fletcher, 78 F. 214; Billy v. Heirs of Gray, 35 Okla. 430; 130 P. 533; Crouch v. Dakota Ry. Co., 22 S.D. 263; 117 N.W. 145; Richardson v. Thompson, 59 Neb. 299; 80 N.W. 909; Tupelo v. Cook, 153 P. 164; Bank v. Jacobs, 26 Okla. 840, 111 P. 303; Boyd v. Robinson, 149 P. 1146; White Lumber Co. v. Beasley, 146 P. 1082; Davis v. Merc. Co., 152 U.S. 590); the summons in error has not been served in the required time on numerous parties to the decree who, for that reason have not been made parties to the proceedings in error notwithstanding the fact that they are necessary parties. The proceedings should therefore be dismissed.

N.E. Corthell, Opposing Motion to Dismiss.

The general subject of jurisdiction was disposed of in the former hearing, in re Big Laramie River, (23 Wyo. 75) whether service was accomplished within 60 days from the original attempt is a question that would not invalidate the appeal, nor affect the jurisdiction of the court, (3 C. J. 103); (Thomas v. Green Co., 146 F. 969); a motion on this ground is a general appearance; (Hudson v. Hoff, 18 Wyo. 425; Honeycutt v. Nyquist, 12 Wyo. 183; 2 Am. Ency P. & P. 632). The character of the relief sought in the second ground of the motion, viz: that there is a misjoinder of plaintiffs in error is a waiver of the question of jurisdiction; defendants are disqualified to raise a point of service in behalf of others not served; (Frost v. Co., 81 P. 996; Crippen v. Glascow, 87 P. 1073; Ditch Co. v. Irr. Co., 41 Colo. 212; Wangerien v. Aspell, 47 O S. 250); a return of the original writ "not summoned" entitles one to alias writs until service is accomplished, (4357 C S.). Proceedings may be had against those served, (4373 C. S.) statutes of limitations do not run against absentees, (4307 C. S.). The service is amendable (4437-38 C. S. 1910), (Green Co. v. Thomas's Executor, 211 U.S. 598, 601; Thomas v. Green County, 146 F. 969, 970, 971; Martin v. Burford, 176 F. 554; Gilbert v. Hopkins, 198 F. 849, 851; Teel v. C. & O. R. R. Co., 204 F. 914, 917; Rininger v. Puget Sound R. R. Co., 220 F. 419, 420; Clinchfield Fuel Co. v. Titus, 226 F. 574, 576). The court may proceed and consider the rights of those served (3 C. J. 1034); (Walters v. Treasurer Min. Co., 21 N. M. 275; 153 P. 615; Watson v. Noonday Min. Co., 37 Ore. 287; 55 P. 867). The relief sought against the development company is to diminish the appropriations and postpone the priorities and this may be done without affecting other defendants, an attempt to commence an action is equivalent to commencement if diligent; (4306 C. S.); the return of the summons unserved fixes the character of the act as an attempt instead of service; the purpose of the statute is to save an action from defects of service, (Clause v. Saving Assn., 16 Wyo. 450). Strained or artificial constructions of the statutes are not favored by the court, (Johnson v. Irr. Co., 13 Wyo. 208); other illustrations may be found in (Canaday v. Davis, 79 Kan. 816, 101 P. 626; Bellinger v. Barnes, 221 Ill. 240, 77 N.E. 421; Dr. Koch Tea Co. v. Davis, 145 P. 337; Bowen v. Bowen, 36 O. S. 312, 314; McLaren v. Meyers, 87 O. S. 88, 95.) Alias writs are mere continuations of the original process, in re Big Laramie River, (23 Wyo. 454; Hixon v. Vail, 85 O. S. 325, 327); the liberal interpretation required by Sec. 4263 C. S. and declared in adjudicated cases will apply, (Stirling v. Wagner, 4 Wyo. 5; Conway v. Co., 6 Wyo. 327; Harden v. Card, 14 Wyo. 479). Who are parties united in interest within the meaning of Sec. 4305 C. S.? The case of Smetters v. Rainey, 14 O. S. 287 has been a trouble maker in the Ohio courts for many years. (Abair v. Bank, 3 O. C. C. 290; Snider's Exe. v. Young, 72 O. S. 494; 74 N.E. 822). It was considered in Buckingham v. Bank, 21 O. S. 131 and in Wangerain v. Aspell, supra. The court approached the question from a different angle and an interesting result is found in Snider v. Hawes, 37 O. S. 532, 544; Bradford v. Andrews involved a will contest. In Moore v. Chittendon, 39 O. S. 563 recognized the theory that there may be necessary parties who are not united in interest but instead of dismissing the entire proceeding, dismissed only as to absent necessary parties; departing from the Ohio decisions, we find the cases dealing with the subject of necessary parties so numerous that it is practicable to apply only a small percentage of them, influenced as they are by variant statutes and sometimes by the exigencies of courts as in Oklahoma and Kansas to rid themselves of an over-supply of appeals. In Seibel v. Bath, 5 Wyo. 409 it was held that several judgment and lien creditors of a common debtor were not jointly interested, but that it was doubtful if the omission of one in an appeal created a defect of parties. In Evans v Cheyenne Co., 20 Wyo. 188, held that a surety on an appeal bond against whom judgment was rendered with his principal in the district court below was not a necessary party on appeal. Practically all of the non-resident defendants defaulted before the Board of Control and the District Court after due service of notice; they would therefore not be interested nor would they have a right to contest the claim. (Boob v. Hall, 40 P. 117; Randall v. Haute, 10 P. 130; Ry. Co. v. Johnson, 34 P. 567; Essency v. Essency, 38 P. 1130; Zinkrisen v. Lewis, 83 P. 28). Under the ancient practice of summons and severance, where judgment rendered against two or more jointly, one might appeal by serving notice on his co-parties and giving him his choice of joining or being omitted. (3 C. J. 1010). The Ohio cases may not throw much light upon the...