Johnston v. The Little Horse Creek Irrigating Company

• Decision Date: 31 December 1904
• Citation: 13 Wyo. 208,79 P. 22
• Parties: JOHNSTON ET AL. v. THE LITTLE HORSE CREEK IRRIGATING COMPANY
• Court: Wyoming Supreme Court

79 P. 22

13 Wyo. 208

JOHNSTON ET AL. v. THE LITTLE HORSE CREEK IRRIGATING COMPANY

Supreme Court of Wyoming

December 31, 1904

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

The material facts are stated in the opinion.

Affirmed.

Van Orsdel & Burdick and Platt Rogers, for plaintiffs in error.

The ownership and control of the waters of Wyoming are vested in the state. (Const., Art. 8, Sec. 1; id., Art. 1, Sec. 31.) These constitutional provisions are self-operative. They delegate no authority to enlarge or diminish their operation and the Legislature would be powerless to enact a law divesting the state of its title to or control of its waters. The constitution designates the officers to act in controling state waters. (Const., Art. 8, Secs. 1 and 5.)

The right to water is a right to use, and the beneficial use of water on a particular tract of land operates as an exclusive dedication to such use for that particular tract, and any deed or conveyance transferring such water for use elsewhere is contrary to the intent of the statutes and, therefore void. At common law the right to the use of water was usufructuary, and its use could not be changed so as to interfere with the rights of others. (Black's Pomeroy on Water Rights, Sec. 4; 1 Coke's Inst., 4; 2 Blackst., 18.) The statutes of Wyoming requiring a permit to divert water are different from those in any other state. The essential difference is the provision requiring an accurate and definite description of the identical land on which a beneficial use of water is to be made when appropriated. (R S. 1899, Secs. 917-925.) The application for a permit is not so much for a certain amount of water as for water for a specific beneficial use, and, when used for irrigation, the specific land must be stated in the application; and the State Engineer may approve an application and grant a permit for less amount than applied for if the lesser amount should be deemed sufficient for the purpose indicated in the application. Section 1317, Revised Statutes, 1887, the first law enacted in the territory on the subject, differs but slightly from the common law, as it recognizes the right of adjacent owners to appropriate water from the streams of the territory. The method of obtaining a decree and the contents thereof show that the particular land irrigated had the special attention of the Legislature. (R. S. 1899, Secs. 863, 871, 872, 873.)

Early legislation in Wyoming bearing on the subject of irrigation was not unlike that of surrounding states, but, profiting by an intelligent knowledge of the mistakes made in such legislation, Wyoming early parted from the theories underlying the laws of adjacent states, and we find as a result constant and progressive growth and development here of the idea and theory that the waters of the state should be diverted and appropriated under intelligent supervision to reclaim particular lands, and, having been so appropriated, should not be transferred from the lands for which appropriated to the detriment thereof to other lands. The danger of the theory formerly prevailing was evidently apparent to the Legislature of 1888, for, by the provisions of Section 14, Chapter 55, of that session, the limitations of a right to water are clearly defined as in the nature of an easement depending on use. The legislation of 1890-91 introduced land as an essential element of appropriation, and later, in 1895, an act was passed vesting in the State Engineer authority to refuse or modify applications for permits in the public interest. Again, Revised Statutes 1899, Section 872, provides that no allotment of water shall include more than one cubic foot for each seventy acres of land for which "the appropriation shall have been made." It follows that after the appropriation was made for a particular seventy acres of land, it was not intended that it should be subsequently used to the benefit of another tract; and this intent is to be discovered in the various laws passed from time to time and now in force, governing the appropriation of water in this state. This is particularly noticeable in the phraseology of Section 31, Chapter 27, Laws 1895, which provides that a water right to irrigate lands acquired under the provisions of that act shall attach and become appurtenant to the land as soon as title passes from the United States to the state.

The difference in the theory of the laws of this state and that governing in Colorado and other arid states renders the decisions in those states of less influence than would otherwise be the case. Idaho and Nebraska, however, have observed the same danger from the doctrine that a water right might be transferred separate from the land, and statutes have been passed in those states indicating a different theory. (S. L. Idaho 1895, Sec. 14, of S. B. 87; Slosser v. Salt River Can. Co., 65 P. 332.)

The law of California and many other Pacific states and territories is the outgrowth of the mining customs in the early days of the gold excitement and prior to any legislation upon the subject. (Black's Pomeroy on Water Rights, Secs. 12-15; Jennison v. Kirk, 98 U.S. 453.) The description of the land, nature of the use, size of the ditch, character of the soil, the natural laws of irrigation, the probability of abandonment or partial disuse, and the future changes in the soil, are notice of the amount of the water appropriated. (Creek v. Bozeman W. Co., 38 P. 459.) The conveyance in controversy changes the point of diversion from the stream, for which there is no authority in the laws of this state; while in many of the states there is express statutory authority for such change. Change of place of diversion can never be made when it interferes with the right of other appropriators. Hence it was incumbent upon the plaintiff to show that the transfer would not conflict with the rights of any other appropriator. (Junkans v. Bergin, 7 P. 684; Fuller v. Swan River P. M. Co., 19 Pac.. 836.) It has never been held that an individual appropriator can maintain two points of diversion from one stream for a single appropriation at the same time; yet this is what the conveyance in question attempts to authorize. It has never been held that an appropriator could sell a surplus of water beyond the amount necessary for the purpose of the original appropriation. (Ditch Co. v. Armstrong, 40 P. 989; Creek v. Boseman W. Co., 38 P. 459.) An appropriator is entitled to priority only for the quantity actually used. (Sieber v. Frink (Colo.), 2 P. 901.) A water right can be conveyed in this state by conveyance of the land to which the water is attached as a part and parcel of the grant. (Frank v. Hicks, 4 Wyo. 502; Donald v. Humphrey, 1 Mont., 518.) A water right is an easement appurtenant. (Frank v. Hicks, supra; Standard v. Water Co., 19 P. 689; Tucker v. Jones, 19 P. 571; Crocker v. Benton, 28 P. 953; Cave v. Crofts, 53 Cal. 135.) An easement appurtenant cannot be sold separate and apart from the land except by the concurrent action of the dominant and servient owners. In the case of a water right in Wyoming the state is the servient owner. When we speak of appurtenant in connection with the land, it refers to something annexed to or belonging to the land and necessary to its full use and enjoyment. (Tiedeman on Real Prop., Sec. 842; Boone on Real Prop., Sec. 306.) An easement is a privilege without profit which the owner of one neighboring tenement may have of another existing in respect to their several tenements, by which the servient owner is obliged to suffer, or not to do something on his own land for the advantage of the dominant owner. (Gale on Easements, 5; Oliver v. Hook, 47 Md. 301; Boone on Real Prop., Sec. 135; Tiedeman on Real Prop., Sec. 597.) An easement appurtenant runs with the land regardless of change of owners. (Knecker v. Voltz, 110 Ill. 264; Hills v. Miller, 3 Paige, 254.)

An easement appurtenant cannot be assigned separately from a dominant estate, and an easement in gross is not assignable at all nor inheritable. (Person v. Johnson, 63 N.Y. 62; Oliver v. Hook, supra; Milk v. Breckenridge, 29 Ohio St. 642.) If a water right represents a property interest, then it ought in justice to be taxed as other property; yet no provision has been made for taxing such rights in this state, for the reason that the Legislature has never recognized that such a right was a property interest capable of being conveyed. Our contention is that ownership of water and the ownership of water rights are indivisible. The water is a component part of the right, and if the whole is property the component parts that make up the whole must be property, and hence the water itself would also be property which an appropriator can sell and convey.

The change of place or purpose of appropriation is not permitted as against parties who have acquired subsequent rights when it would enlarge the amount of water used upon that of the original appropriation, or otherwise increase the burden imposed upon them by such appropriation. (Black's Pomeroy on Water Rights, Sec. 69; Fuller v. Swan River M. Co., 19 P. 836; Greer v. Heiser, 16 Colo. 736; Ramelli v. Irish (Cal.), 31 P. 41; Junkans v. Bergin, 67 Cal. 267; Ware v. Walker, 70 Cal. 591; Sieber v. Frink, 7 Colo., 148; Whittier v. Mfg. Co., 9 N. H., 454; Woolman v. Garringer, 1 Mont., 535; Means v. Bicknell, 7 Cal. 261; McDonald v. Bear River Co., 13 id., 220; Kidd v. Laird, 15 id., 161; Butte T. & M. Co. v. Morgan, 19 id., 609; Davis v. Gale, 32 id., 26.)

An appropriator of water acquires no title or right in the water of the stream until it is diverted into his ditch and, as soon as used in the ditch or turned into the stream, the control of the water is thereby lost to the appropriator. (Farm...