Johnson Irrigation Co. v. Ivory

• Decision Date: 12 September 1933
• Docket Number: 1784
• Citation: 46 Wyo. 221,24 P.2d 1053
• Parties: JOHNSON IRRIGATION CO. v. IVORY, ET AL
• Court: Wyoming Supreme Court

24 P.2d 1053

46 Wyo. 221

JOHNSON IRRIGATION CO. v. IVORY, ET AL

No. 1784

Supreme Court of Wyoming

September 12, 1933

ERROR to District Court, Natrona County; C. D. MURANE, Judge.

Action by the Johnson Irrigation Company against Aura Ivory and Mike Moran, who filed a cross-petition. Decree adverse to plaintiff, and plaintiff brings error.

Affirmed.

For the plaintiff in error there was a brief by Ambrose Hemingway, E E. Enterline, and Madge Enterline, all of Casper, Wyoming and oral argument by Messrs. Hemingway and Enterline.

This involves conflicting rights as between the holders of rights of way for ditches, canals, reservoirs and other irrigation works, and defendants in error are all homestead entrymen. Plaintiff in error filed its applications for rights of way in 1912, which were approved in 1922, and in March, 1927 plaintiff in error filed its proof of construction, which was accepted by the Department of the Interior. In 1919, defendants in error filed homestead entries on lands which overlapped the exterior boundaries of rights of way earned by plaintiff in error, acquired under Acts of Congress, Section 18-21 of March 3, 1891, (now 43 U.S.C.A. Sections 946-959, and U. S. Code Vol. 41, part 1, sec. 946 to 949, p. 1397). The right of the plaintiff is prior in time to that of defendant. Richardson v. Midwest Refining Company, 39 Wyo. 58; Great Northern Railway Company v. Steinke, 261 U.S. 119, 67 L.Ed. 564. The title of the plaintiff to the lands embraced within its right of way is a base or qualified fee. It is something more than a mere license and partakes of the nature of a grant. Jamieson v. Millerman, 3 Duer (N. Y.) 255, 258; City of Bergyn v. Berglund, 99 N.E. 705, 707; 2 Words and Phrases, Second Series, 779; Jensen v. Hunter (Calif.) 41 P. 14; 9 R. C. L. 744; Rio Grande Western Railway Company v. Stringham, 239 U.S. 44, 36 S.Ct. 5, 6; Richardson v. Midwest Refining Company, 39 Wyo. 58; Kern River Co. et al., v. U.S. 42 S.Ct. 60; Logan v. Davis, 233 U.S. 613, 58 L.Ed. 1121; Interior Department Regulations 36 L. D. 567; Windsor Reservoir & Canal Company v. Miller, 51 L. D. 305, 306. Under the authorities above cited, the right of plaintiff is that of a base or qualified fee. 21 C. J. 922, 10 R. C. L. 652. Until its determination it shall be such an estate and has all the incidents of a fee simple, and, while the estate continues, the grantee has the same rights as if it was a fee simple. Kinney-Coastal Oil Co. v. Kieffer, 277 U.S. 488. If both parties to this suit are to occupy the land involved in this case, each at his own pleasure, who is to decide which, if either of them, is there in pursuance of the purposes consonant with his rights? The decision seems to create an impossible situation that can only result in future controversy and litigation.

For the defendants in error, there was a brief and oral argument by Philip E. Winter of Casper, Wyoming.

The evidence sustains the findings of the trial court. The entries were made on June 11, 1919. Right of way maps of the plaintiff were not approved until January 28, 1922. Patent homestead entries were granted on November 21, 1923. On March 29, 1927, plaintiff's proof of construction was accepted and endorsed, "EASEMENT EARNED." A vital question here is what easement had been earned. We quote from the Act of May 31, 1891, under which plaintiff claims, and which defines the limits of the "easement earned" by it. At Section 21 thereof, it is expressly stated that nothing in this act shall authorize such canal or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance, and care of said canal or ditch. This section is construed by the Secretary of the Interior in the Regulations in 36 L. D. 568, 569. This leaves no authority for plaintiff's seizure of 50 foot easement on each side of its ditches and reservoirs, except as is necessary for the construction, maintenance, and care of the canal, ditch or reservoir. The decree of the trial court is in exact accord with the regulations and the Act itself. There is no allegation in the petition that defendants have injured the irrigation system of plaintiff or impeded its operation; or that they have in any way obstructed the use and occupation of said right of way by plaintiff for the proper purposes contemplated by the said Act. We agree with the concluding paragraph of the opinion in the case cited by plaintiff's counsel in their brief, United States v. Big Horn Land and Cattle Company, 17 F.2d 357, as to the granting of a limited fee in the land surrounding the lake. Counsel also cite the case of Windsor Reservoir and Canal Company v. Miller, 51 L. D. 305; U. S. v. Whitney, 176 F. 593, and other cases which do not seem to support their contentions, and we find nothing in Richardson v. Midwest Refining Co., 39 Wyo. 58, inconsistent with the rule laid down by Federal authorities. In conclusion, we submit that the decree rendered by the trial court is sustained by the conclusion reached in the case of Kieffer v. Kinney-Coastal Oil Company, 9 F.2d 260, and should be affirmed.

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

OPINION

KIMBALL, Chief Justice.

The plaintiff, an irrigation company, is the grantee of the United States under sections 18 to 21 of [46 Wyo. 226] the act of congress of March 3, 1891 (26 Stat. 1101, 43 USCA §§ 946-949) of a right of way for its reservoir and canal for irrigation purposes. Lands which are largely covered by plaintiff's reservoir on its right of way have been granted to defendants by homestead patents subject to the right of way.

Plaintiff claims the right of exclusive possession of its right of way, and brought this action to quiet its title and enjoin defendants from entering upon or occupying any part of the lands covered by the right of way. The petition alleges that defendants have trespassed and are threatening to continue to trespass on part of the right of way, but does not allege that defendants have committed any trespass that has interfered or threatened any that will interfere, with plaintiff's right to occupy its right of way for purposes of irrigation and for the construction, maintenance and care of its canal and reservoir.

Defendants claim the right to occupy and use the lands described in their patents and covered by plaintiff's right of way, subject only to plaintiff's right to occupy and use the right of way for the purpose of irrigation. Defendants' claim is set forth in a cross-petition wherein they allege that plaintiff has trespassed on defendants' lands by occupying them for purposes other than irrigation. The relief prayed for in the cross-petition includes damages for the alleged trespass and an injunction to prevent plaintiff from asserting any right to enclose or exercise dominion over any of defendants' lands except the right to use the right of way for the purposes for which it was granted.

The dispute is over the right to use for agricultural purposes lands lying along the north shore of plaintiff's reservoir. These lands are enclosed by the surveyed marginal line as shown on plaintiff's maps filed and approved under section 19 of the act of March 3, 1891, supra (43 USCA, § 497) and are a part of the lands described in defendants' patents. There are two approved maps: one showing both ditches and reservoir, the other, on larger scale, showing the reservoir only.

The right of way for the reservoir apparently covers the site of a natural pond or lake formed when waters from surrounding lands drained into a small basin. The "shore line" of this lake is shown within the right of way on the approved map of the reservoir. The reservoir was made by constructing two dams which materially increased the size of the natural basin. One dam is on the east, the other on the south, side of the basin. Except at these dams the margin of the reservoir is the natural ground shore. This fact seems of some importance (see 43 L.D. 317, 320) and will be again referred to. The marginal line of the reservoir right of way, as shown on the approved maps, encloses 465 acres of land. The northerly marginal line is across the lands described in defendants' patents' so that part of those lands are within, and the rest are north of and adjoining, the right of way.

The water confined in the reservoir actually constructed and used by plaintiff does not cover all the land enclosed by the marginal line shown on its maps. The evidence shows conditions in June preceding the trial. The actual water line along the north side of the reservoir was then from 200 to 1300 feet south of the marginal line shown on the maps. The result is that some 80 acres included in defendants' patents and also included in the plaintiff's mapped right of way is dry land suitable for grazing and other agricultural purposes. The right to possession of this land is the matter in dispute. One tract, somewhat irregular in shape, is approximately 1000 feet east and west and 1300 feet north and south, and it is there that defendants' houses are located. One house is 360 feet, the other 260 feet, from the nearest point on the shore line of the reservoir, although they are more than 500 feet south of the north marginal line shown on the maps. The water would have to be raised vertically 1.5 feet to reach defendant's houses, and 2.7 feet to reach the marginal line shown on the maps. From testimony as to the condition of the ground it is to be inferred that the water confined in the reservoir may at some times have been higher than in June preceding the trial, but that the shore line has never been less than 200 feet from defendant's houses.

In the year 1925 plaintiff built a fence enclosing the...