Laramie Irrigation & Power Co. v. Grant, 1766

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBLUME, Justice.
Citation13 P.2d 235,44 Wyo. 392
Docket Number1766
Decision Date21 July 1932
PartiesLARAMIE IRRIGATION & POWER CO. v. GRANT

13 P.2d 235

44 Wyo. 392

LARAMIE IRRIGATION & POWER CO.
v.
GRANT

No. 1766

Supreme Court of Wyoming

July 21, 1932


Rehearing denied September 26, 1932, without opinion.

APPEAL from the District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Action by Laramie Irrigation & Power Co. against George Grant, as Water Commissioner, wherein the Wyoming Development Company intervened. A judgment in favor of plaintiff was rendered and defendant and intervener appeal.

Reversed and Remanded.

For the appellant George Grant, there was a brief by James A. Greenwood, Attorney General, Richard J. Jackson, Deputy Attorney General, and George W. Ferguson, Assistant Attorney General, all of Cheyenne, Wyoming, and oral arguments by Mr. Greenwood and Mr. Jackson.

The petition does not state a cause of action. Respondent contends that it is an appropriator from the Little Laramie River, and as that stream was separately adjudicated in a proceeding to which Wyoming Development Company was not a party, the water commissioner is without lawful authority to regulate its headgate on the complaint of Wyoming Development Company, an appropriator from the Big Laramie River, even though it be conceded that the Little Laramie River is a tributary of the Big Laramie River, and that Wyoming Development Company claims an appropriation from the Big Laramie River, under an earlier priority. It is not alleged that the Big Laramie River and all of its tributaries have been adjudicated in different proceedings, an allegation necessary to bring the case within the provisions of Sec. 122-137, R. S. 1931, and a condition precedent, which must be alleged to make the petition sufficient. Brd. v. Brd., 6 Wyo. 254; Houtz v. Commrs., 11 Wyo. 152; Frank, et al. v. Stratford-Handcock, et al., 13 Wyo. 37; Commrs. v. Denebrink, 15 Wyo. 342; Town Council of Hudson v. Ladd, 37 Wyo. 419, 429; 21 R. C. L. 463, 466; 49 C. J. 145. The presumption is that public officials have performed their duty in a lawful way. McLean v. Farmers Highline Canal and Res. Co., (Colo.) 98 P. 16. The trial court was without original jurisdiction of the cause. Sec. 122-304, R. S. 1931. It is the duty of the water commissioner to regulate rights according to priorities of record. 122-303, R. S. 1931; Hamp v. State, 19 Wyo. 377; Parshall, et al. v. Cowper, 22 Wyo. 385. An injunction will not issue to restrain the lawful performance of an official duty. Ryan v. Tutty, 13 Wyo. 122; Van Buskirk v. Co., 24 Wyo. 183; Farm Inv. Co. v. Carpenter, 9 Wyo. 110; Strickler v. City Colo. Spgs., (Colo.) 26 P. 315. An appropriation of water from a stream includes water from its tributaries. Kinney, Irr. and Water Rights, Vol. 3, p. 2820; Josslyn v. Daly, (Ida.) 96 P. 568; Ins. Co. v. Albrethsan, 294 P. 845. All streams within a watershed are considered as a composite body. Creighton v. Co., 7 P. 658; Salina Cr. Co. v. Stock Co., 27 P. 578; Malad Val. Irr. Co. v. Campbell, 18 P. 52; Bruenning v. Dorr, 47 P. 290; Platte Valley Co. v. Buckers Irr. Co., 53 P. 334; Tonkin v. Winzell, 73 P. 593; Low v. Rizer, 37 P. 82; Supply Co. v. Co., 53 P. 386; Boyce v. Cowper, 61 P. 642; Low v. Schaffer, 33 P. 678; Ogilvy v. Insinger, 75 P. 598; Moyer v. Preston, 6 Wyo. 308; Water Rights in Western States, Vol. I, p. 358. Injunction will not be sustained unless it be shown that an officer is acting outside the scope of his authority. Goodwin v. State, 102 So. 718; Root v. City of Topeka, 180 P. 229; Kingsley v. Pounds 160 N.Y.S. 228, 96 Misc. 27. The rule is stated in 32 C. J. 240, as follows: Courts of equity have no power to restrain public officials by injunction from performing any official act which they are by law required to perform, or acts which are not in excess of the authority, and discretion reposed in them. Willeford v. State, 43 Ark. 62; Mendenhall v. Denham, 35 Fla. 250, 17 So. 261; State v. Gibbs, 13 Fla. 55, 7 Am. R. 233; Dickey v. Reed, 76 Ill. 261; Staple v. State, (Tex.) 244 S.W. 1068; Waite v. Macy, 246 U.S. 606, 62 L.Ed. 892; Louisiana v. McAdoo, 234 U.S. 627, 58 L.Ed. 1506; New Orleans v. Paine, 147 U.S. 261, 37 L.Ed. 162; Soo Hing v. Crowley, 113 U.S. 703, 28 L.Ed. 1145. Further in 32 C. J. 245: Complainant must clearly show actual illegal action on the part of defendants, and the presumption is in favor of the legality of the action taken by them. Am. Coal Min. Co. v. Ill. Com., 268 F. 563; (App. dismissed--258 U.S. 632.) Macy v. Brown, 215 F. 456; (Rev. on other grounds--224 F. 359) Branaman v. Harris, 189 F. 461; Minneapolis St. Ry. Co. v. Minneapolis, 189 F. 445; Western Ref. Assn. v. Morehead, 98 Neb. 717. In High on Injunctions, Vol. 2, page 1322, we find: "In applications for relief by injunction against public officers the determining point is ordinarily whether they are acting within the scope of their authority, or whether they are transcending that authority." 22 R. C. L. 472 has the following: "There is a presumption of law that every public officer does his duty and that he performs faithfully those matters with which he is charged. The system of water control in Colorado is practically the same as in Wyoming. The Colorado cases support water officials in performance of their statutory duties. Boulder v. Hoover, (Colo.) 110 P. 75; Farmers Ditch Co. v. Agri. Ditch Co., (Colo.) 45 P. 444; McLean v. Res. Co., supra. This court in its decisions above cited followed the same doctrine. An adjudication of the Big Laramie River and tributaries was binding on respondents, although there was a separate adjudication of the Little Laramie. The decrees of the State Board of Control are final and conclusive, unless altered by appeal. 122-137 Rev. Stat. 1931.

For the appellant and intervener Wyoming Development Company there was a brief and oral argument by William E. Mullen, of Cheyenne, Wyoming.

It was made clear by the pleadings and evidence, that Wyoming Development Company is the holder of an appropriation from the Big Laramie River with a priority of use as of May 15, 1883, for 633 cubic feet of water per second of time adjudicated by the Board of Control in March, 1903; also that the Laramie Irrigation and Power Company, plaintiff below, was the holder of an appropriation of water from the Little Laramie River, with a priority of use as of March 8, 1888, for 59 cubic feet per second of time. But as the Little Laramie River appropriations were adjudicated in a separate proceeding from the adjudication proceedings had, as to appropriations from the Big Laramie River, it was contended that Wyoming Development Company is without right to waters of the Little Laramie River, even though it is conceded to be a tributary of the Big Laramie. The trial court enjoined the Water Commissioner from regulating headgates on the Little Laramie River for the benefit of appropriations on the Big Laramie River, until the relative rights of Wyoming Development Company and plaintiff should be adjudicated in a proceeding to which both were parties. The trial court was without jurisdiction to enjoin the Commissioner from performing his official duties imposed by statute. The rights of the Wyoming Development Company were adjudicated by the Board of Control and affirmed in appeals taken from said adjudication. Pioneer Canal Co. v. Akin, 23 Wyo. 75; Pioneer Canal Co. v. Akin, 23 Wyo. 450; Pioneer Canal Co. v. Akin, 27 Wyo. 88. The State Board of Control is a constitutional body possessing original jurisdiction in the adjudication of water rights. Const. Art. VIII, Sec. 2, Laws 1890-91. The trial court did not assume jurisdiction to disturb the priorities in controversy, in a direct manner, but its injunction attempts to accomplish that result in an indirect manner. It was without authority to nullify recorded priorities by injunction. Ryan v. Tutty, 13 Wyo. 130, 78 P. 661; Hamp v. State, 19 Wyo. 389, 118 P. 653; Parshall v. Cowper, 22 Wyo. 385, 143 P. 302. The judgment of the trial court is a collateral attack upon a final adjudication of the Board of Control, and is therefor void. Alamosa Creek Co. v. Nelson, (Colo.) 93 P. 1112; Fornwald v. Same, (Colo.) 93 P. 1115; Rogers v. Canal Co., (Colo.) 151 P. 923. Water cannot be appropriated from a tributary of a natural stream to the injury of a prior appropriation from the main stream. Moyer v. Preston, 6 Wyo. 308; 2 Kinney Irr. & Water Rights 1137; Farmers Ind. D. Co. v. Agri. Co., (Colo.) 45 P. 444. Priority of appropriation for beneficial use gives the better right. Const. Art. VIII, Sec. 3; Farm Inv. Co. v. Carpenter, 9 Wyo. 127, 61 P. 258; Willey v. Decker, 11 Wyo. 533; State v. Parshall, 22 Wyo. 329. A stream system is to be taken as a whole in which the upper tributaries are integral parts. 1 Kinney Irr. & Water Rights 508; Wilson v. Collins, (Colo.) 102 P. 21; Petterson v. Payne, (Colo.) 95 P. 301. Plaintiff's contention that it was not a party to the Laramie river adjudication proceedings is not sustained by the evidence. There was no preliminary notice given by the water officials that excludes any appropriator from the Laramie River system from clearly establishing the nature and character of his priority. An appropriator of water who fails to submit proof of his claim in adjudication proceedings for want of proper notice, may upon showing, come in within one year thereafter and submit proof of his claim. Laws 1901, Ch. 67, Sec. 2, 915 C. S. 1920. Plaintiff therefore had under this statute, one year from March 1903 to come in and set up its claim. Proceedings by the Board of Control, are primarily administrative, and water claimants therein are not adversaries in fact, affirmative relief in favor of one party as against another, not being the object of such proceedings. Farm Inv. Co. v. Carpenter, supra; 3 Kinney on Irrigation & Water Rights, p. 2886. The term "parties" as commonly employed in law actions, is not applicable in the various proceedings followed by the State Engineer and Board of Control, in ascertaining the...

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20 practice notes
  • Application of Beaver Dam Ditch Co. Crowell v. City of Cheyenne, 2044
    • United States
    • United States State Supreme Court of Wyoming
    • September 21, 1939
    ...Association, 29 Wyo. 461. The presumption is in favor of legality of action of water commissioners. Irrigation & Power Company v. Grant, 44 Wyo. 392; Carstensen v. Brown, 26 Wyo. 356. Where exhibit and pleadings differ, exhibit must control. Hyde v. Althus (Okla.) 218 P. 1081; Company v. Ca......
  • General Adjudication of All Rights to Use Water in the Big Horn River System, In re, Nos. 85-203
    • United States
    • United States State Supreme Court of Wyoming
    • February 24, 1988
    ...557 (1978); Quinn v. John Whitaker Ranch Company, 54 Wyo. 367, 92 P.2d 568, 571-572 (1939); Laramie Irrigation and Power Company v. Grant, 44 Wyo. 392, 13 P.2d 235 (1932); Campbell v. Wyoming Development Company, supra 100 P.2d 124; Hamp v. State, 19 Wyo. 377, 118 P. 653, 663 (1911). We hav......
  • In re Rights to Use Water in Big Horn River, No. 85-203 to 85-205
    • United States
    • United States State Supreme Court of Wyoming
    • February 24, 1988
    ...557 (1978); Quinn v. John Whitaker Ranch Company, 54 Wyo. 367, 92 P.2d 568, 571-572 (1939); Laramie Irrigation and Power Company v. Grant, 44 Wyo. 392, 13 P.2d 235 (1932); Campbell v. Wyoming Development Company, supra 100 P.2d 124; Hamp v. State, 19 Wyo. 377, 118 P. 653, 663 (1911). We hav......
  • Van Tassel Real Estate & Livestock Co. v. City of Cheyenne, 1912
    • United States
    • United States State Supreme Court of Wyoming
    • February 18, 1936
    ...adjustment of the priorities of appropriation of the public waters of the State for purpose of administration. Laramie Irr. Co. v. Grant, 44 Wyo. 392; Ryan v. Tutty, 13 Wyo. 122. Adjudications of the Board of Control bind administrators of water rights. Parshall v. Cowper, 22 Wyo. 385. Muni......
  • Request a trial to view additional results
20 cases
  • Application of Beaver Dam Ditch Co. Crowell v. City of Cheyenne, 2044
    • United States
    • United States State Supreme Court of Wyoming
    • September 21, 1939
    ...29 Wyo. 461. The presumption is in favor of legality of action of water commissioners. Irrigation & Power Company v. Grant, 44 Wyo. 392; Carstensen v. Brown, 26 Wyo. 356. Where exhibit and pleadings differ, exhibit must control. Hyde v. Althus (Okla.) 218 P. 1081; Company v. Casper, 28 ......
  • General Adjudication of All Rights to Use Water in the Big Horn River System, In re, Nos. 85-203
    • United States
    • United States State Supreme Court of Wyoming
    • February 24, 1988
    ...557 (1978); Quinn v. John Whitaker Ranch Company, 54 Wyo. 367, 92 P.2d 568, 571-572 (1939); Laramie Irrigation and Power Company v. Grant, 44 Wyo. 392, 13 P.2d 235 (1932); Campbell v. Wyoming Development Company, supra 100 P.2d 124; Hamp v. State, 19 Wyo. 377, 118 P. 653, 663 (1911). We hav......
  • In re Rights to Use Water in Big Horn River, No. 85-203 to 85-205
    • United States
    • United States State Supreme Court of Wyoming
    • February 24, 1988
    ...557 (1978); Quinn v. John Whitaker Ranch Company, 54 Wyo. 367, 92 P.2d 568, 571-572 (1939); Laramie Irrigation and Power Company v. Grant, 44 Wyo. 392, 13 P.2d 235 (1932); Campbell v. Wyoming Development Company, supra 100 P.2d 124; Hamp v. State, 19 Wyo. 377, 118 P. 653, 663 (1911). We hav......
  • Van Tassel Real Estate & Livestock Co. v. City of Cheyenne, 1912
    • United States
    • United States State Supreme Court of Wyoming
    • February 18, 1936
    ...adjustment of the priorities of appropriation of the public waters of the State for purpose of administration. Laramie Irr. Co. v. Grant, 44 Wyo. 392; Ryan v. Tutty, 13 Wyo. 122. Adjudications of the Board of Control bind administrators of water rights. Parshall v. Cowper, 22 Wyo. 385. Muni......
  • Request a trial to view additional results

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