Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 3829
| Decision Date | 22 October 1970 |
| Docket Number | No. 3829,3829 |
| Citation | 475 P.2d 548 |
| Parties | KEARNEY LAKE, LAND & RESERVOIR COMPANY, a corporation, Appellant (Plaintiff below), v. LAKE DeSMET RESERVOIR COMPANY, a corporation, Appellee(Defendant below). |
| Court | Wyoming Supreme Court |
Burgess, Kennedy & Davis, Sheridan, for appellant.
W. J. Wehrli, Casper, and William J. Kirven, Buffalo, for appellee.
Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.
Plaintiff, allegedly a Wyoming reservoir corporation engaged in the business of storing water from a tributary of Piney Creek, Johnson County, and distributing same to its stockholders for irrigation purposes, brought an action against defendant, also a Wyoming reservoir corporation engaged in storing water 'from Piney Creek into Lake DeSmet,' downstream from plaintiff, and sought to have defendant's permits in excess of 12,160 acre feet declared abandoned and forfeited because there had been no beneficial use of the water above that amount. Defendant filed a motion to dismiss because of failure to state a claim upon which relief could be granted; the court after argument and consideration found that the motion should be sustained and entered judgment dismissing the complaint. Plaintiff has appealed. We are unadvised of the views on which the trial court based its determination but assume that the arguments here presented are substantially similar to those below.
Plaintiff's thesis is that under the Wyoming Constitution, Art. 8, § 1, water belongs to the State and under § 41-26, W.S.1957, it can be stored only by authority of a permit for appropriation and that unless it is beneficially used it is subject to abandonment under the provisions of the statutes.
According to the complaint, defendant has primary permits for 55,129 acre feet, other filings amounting to 55,833 acre feet from Piney Creek for storage in Lake DeSmet, and has annually diverted and stored amounts of water sufficient to equal releases, maintaining in the Lake, prior to seasonal releases, 87,729 acre feet of water. The amounts used beneficially for agricultural purpose during the last nine years were allegedly:
1966 12,160
1965 4,686.50
1964 7,550.06
1963 8,387
1962 2,301
1961 10,340
1960 13,349
1959 7,675
1958 5,460.16
Since the propriety of the dismissal depends upon the existence of a fatal defect in the complaint, defendant's contentions and argument to that effect are important and warrant discussion. Although counsel present various peripheral criticisms, their main argument proceeds substantially along the following lines:
1. Without alleging loss or impairment of the use of its rights, plaintiff is not entitled to relief.
2. General allegations as to irreparable injury are insufficient.
3. Under the facts pleaded, the court is without jurisdiction to grant the relief demanded.
4. Rules relating to beneficial use do not support plaintiff's claim.
We are unimpressed with the argument, assertions, or authorities on the first point because they are for the most part based upon and stem from pronouncements relating to injunctive relief. It is true that the prayer of the complaint requests an injunction against defendant, enforcing and restraining it from diverting the claimed overages from Piney Creek, but such request is incidental to the basic relief sought, i. e., abandonment of certain water rights held by defendant. Accordingly, it becomes unnecessary to analyze and discuss the cases and authorities from other jurisdictions, which counsel have presented on the subject, since these do not deal with abandonment under statutes similar to those in this State. For a cognate reason, there is no relevancy here of the contention that general allegations as to irreparable injuries are insufficient since as is evident from the cases cited such postulate is warranted only if the primary relief sought is of injunctive nature. Although defendant insists plaintiff's complaint must allege an impairment of rights to use water under its permits before a claim is stated and cites three Wyoming cases 1 neither the argument nor precedents convince us that under the provisions of § 41-48, W.S.1957, initiation of proceedings for abandonment can be brought only by one who has already suffered injury. As to the contentions that the court was without jurisdiction, we have often indicated the advisibility of commencing any proceedings relating to abandonment before the board of control, the personnel thereof having peculiar knowledge and expertise as to the technicalities involved as well as the realities and records pertaining to the use or nonuse of water, 2 and we have had no hesitancy in calling to the attention of the legislature the need for proper study and statutory change. 3 Furthermore, in view of the provisions of the Wyoming Administrative Procedure Act, §§ 9-276.19 to 9-276.33, W.S.1957 (1969 Cum.Supp.), which inter alia gives to the board discovery powers, it would appear that the usual abandonment proceeding should be initiated before the board of control. Even in actions of which the district court has jurisdiction and the question of abandonment, not previously litigated, becomes an issue, there should be utilization of the board of control-perhaps somewhat along the lines provided in Rule 53, W.R.C.P., for masters. However, as we will hereinafter indicate, these proceedings were also subject to dismissal on other grounds.
Before addressing ourselves to plaintiff's specific allegations, we should first review the general status of the law as to abandonment. While the legislature has, as to water rights via reservoirs, established no maximum allotment of water per unit of land as a counterpart to that relating to the use of direct flow (§ 41-181, W.S.1957), such circumstance does not alter the fact that the constitution provides generally, 'The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state,' 4 and 'Priority of appropriation for beneficial uses shall give the better right.' 5 In their effectuation of the constitutional provisions, numerous statutes specifically make rights to reservoir water in this State dependent upon beneficial use. Before focusing on some of the statutes, we should perhaps mention that while we can agree with defendant a reservoir owner can make storage of a quantity of water within the limitation of its rights to water as recognized by the board of control-in the instant case allegedly 110,962 acre feet-counsel are in error in saying, '(I)n the face of the decision of this Court in Lake De Smet Reservoir Company v. Kaufmann (75 Wyo. 87, 292 P.2d 482), * * * defendant has the right to store more water * * * than can be or is beneficially used,' unless defendant means that it has a right to store more water than can be beneficially used by it. This is, of course, not to say that storage of a quantity of water within the limitation of its rights is improper before there has been a declaration of abandonment.
As a backdrop for further consideration of the cause, we note significant statutory provisions:
Section 41-26, W.S.1957: 'Any person, corporation, * * * hereafter intending to store or impound, for beneficial uses, any of the unappropriated waters of the State of Wyoming, shall, before commencing construction * * * make an application * * *.'
Section 41-36, W.S.1957, provides that the owner of each reservoir shall annually before the irrigating season or before releasing water from the reservoir deliver to the proper water commissioner a list of parties entitled to use water from the reservoir during the irrigating season and the lands proposed to be irrigated and that the superintendent shall annually before December 1 make a...
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