Laughlin v. State Board of Control

• Decision Date: 09 December 1912
• Docket Number: 692
• Citation: 128 P. 517,21 Wyo. 99
• Parties: LAUGHLIN v. STATE BOARD OF CONTROL ET AL
• Court: Wyoming Supreme Court

128 P. 517

21 Wyo. 99

LAUGHLIN v. STATE BOARD OF CONTROL ET AL

No. 692

Supreme Court of Wyoming

December 9, 1912

Rehearing Denied April 7, 1913, Reported at: 21 Wyo. 99 at 116.

ERROR to the District Court, Albany County; HON. CHARLES E CARPENTER, Judge.

From an order of the State Engineer rejecting an application of Lemuel L. Laughlin for a permit to construct a reservoir, the applicant appealed to the State Board of Control. From a decision of the board sustaining the decision of the engineer an appeal was taken to the District Court of Albany County which resulted in a judgment affirming the action of the State Engineer and board and a dismissal of the appeal, and thereupon the applicant brought the case to the Supreme Court on error. The material facts are stated in the opinion.

Reversed.

N. E. Corthell, for plaintiff in error.

The sole ground for denying the application of plaintiff in error was the fact that another party had filed a conflicting application between the dates of the filing of his original and amended applications. The State Engineer wrongfully assumed power to consider and determine questions involving the ownership of the land to be used for the reservoir, and to approve the permit of the second applicant in violation of the statute giving the prior right to the first applicant. Priority of appropriation dates from the filing of the application for a permit under the present statutory system. (Comp. Stat. 1910, Secs. 727-752, 739; Whalon v. Canal Co., 11 Wyo. 344; Const., Art. 8, Sec. 5.) Pending action upon an application the engineer may call for additional information to enable him to properly guard the public interests, and he is required to reject an application where there is no unappropriated water or where the proposed use conflicts with existing rights, or threatens to prove detrimental to the public interest. The statute requires the engineer also to indorse on the application his approval or rejection, and from his decision shown by such indorsement an appeal lies. "Existing rights" which would authorize, under the statute, a rejection of an application must refer to water rights, and, as each water right is in all respects subordinate to prior rights, it is not conceived that any new appropriation can impair the value of an existing one in a legal sense. No denial of an appropriation can be justified upon any other ground than that of public interest. Impairment of the value of a private interest or the detrimental effect upon a private interest, are contingencies which cannot be considered by the engineer. In view of the emphatic language of the constitution, he cannot refuse a permit unless it is made to appear that the grounds of the decision complained of are such as are recognized and authorized by the constitution and statute. Prima facie, the application of plaintiff in error should be approved, for such approval is a matter of course unless some constitutional or statutory objection is shown to exist. (Richter v. State, 16 Wyo. 438.)

Upon careful consideration of the proper duties and province of the State Engineer, there would seem to be nothing inconsistent in approving both applications which were presented and filed. These applications had reference to water rights. The right to establish, maintain, construct and operate the reservoir is another affair, which may be dependent upon the ownership of the lands, or the interest or easement in the lands affected, and is to be acquired from another source and in a different way than by an application filed in the office of the State Engineer. The question of the ownership of the land to be used or affected is beyond the engineer's jurisdiction and control. (Sowards v. Meagher (Utah), 108 P. 1112.) The filing of an application for a permit in the engineer's notice is merely official notice of the applicant's intention to accept and act upon the offer of the state to grant water rights, which is open to all. (Sowards v. Meagher, supra.) There is nothing in the facts in this case which even suggests a public interest requiring a rejection of the application in question. The terms "public interest" and "public policy" are very closely related. The courts have found it necessary to define the judicial meaning of "public policy," and have held that a state can have no public policy except what is to be found in its constitution and laws. (People v. Hawkins, 157 N.Y. 12; Hollis v. Seminary, 95 N.Y. 166; Vidal v. Philadelphia, 2 Howard, 127.) The exercise of official discretion is controlled by law, and the qualifying words "according to law" are to be read into each statute investing the officer with discretionary power. (Scott v. LaPorte (Ind.), 68 N.E. 278.) The supervision of the waters of the state entrusted to the Board of Control, and somewhat to the State Engineer, comprehends official administrative action rather than judicial. (Farm Inv. Co. v. Carpenter, 9 Wyo. 110.) On the other hand the power to determine property rights between conflicting claimants is not an administrative matter, but judicial. (State v. Carr, 129 Ind. 44, 28 N.E. 88; Thorp v. Woolman, 1 Mont. 168.) The state has no power to dispose of the public waters except in the matter of regulating appropriations for private beneficial use; it has no right which it can sell. (Rossmiller v. State, 114 Wis. 169, 189 N.W. 839.)

Groesbeck & Eby and D. A. Preston, Attorney General, for defendants in error.

The Laughlin application, which was returned for correction "for additional information," was never returned by the applicant to the engineer's office, but after an application had been filed by another party Laughlin made a second application, covering practically the same site mentioned and described in the other party's application. Therefore, the engineer rejected the Laughlin application on the ground that a permit had been granted to the other party under a prior application. Laughlin applied not for a water right, but for a reservoir site by the two applications particularly here in question. There was no compliance on his part with the reasonable request for additional information, as will appear by an examination of his second application. On the contrary, an entirely different application was made. (Weil on Water Rights (3rd Ed.), Sec. 414 and note; Pool v. Utah &c. Co., 105 P. 289.) It follows that the engineer and the Board of Control, as well as the District Court, faithfully applied the statutory requirements in granting the permit to the prior applicant.

There is a distinction under the provisions of the statute between an application to acquire a water right and one for a permit to construct a reservoir. It is clear that the statute with reference to reservoirs was intended to provide a rule or procedure whereby a reservoir to impound unappropriated waters might be constructed. Conceding that the construction of a reservoir is to impound waters acquired from the state the contention of opposing counsel that the engineer is limited in rejecting permits for reservoirs to cases where such denial is demanded by the public interest is not applicable. A reservoir can be constructed and filled from a private source without a permit. But if public waters are to be used the Legislature may make such rules and prohibitions as it may see fit. Had the engineer granted the same site to both parties there would have been a conflict as to existing rights, and his act would have been void. (Trade &c. Co. v. Frazer, 148 F. 587; Weil on W. R. (3rd Ed.), Sec. 793.) Great discretion is allowed the engineer in calling for additional information with reference to an application for a permit. (Weil on W. R., Sec. 143; Whalon v. Canal Co., 11 Wyo. 313.) Public interest demands the rejection of an application, which, if granted, will conflict with a prior grant. (Cookingham v. Lewis, 114 P. 91; Young v. Hinderlider, 110 P. 1049.) It is true that the terms "public interest" and "public policy" are closely related. They each mean the public good. Anything which tends to undermine the security for individual rights, or private property, is against public policy and public interest. (Goodyear v. Brown, 155 Pa. St. 514; Spence v. Harvey, 22 Cal. 340; Tarbell v. Rutland, 75 Vt. 347; In re. Lampson's Will, 53 N.Y.S. 531; Com. v. Alger, 7 Cush. 84; 2 Kent's Com. 340; Trustees v. Tatman, 13 Ill. 27; Munn v. People, 94 U.S. 121, 24 L.Ed. 84.) Therefore, when any citizen seeks to impound the public waters it becomes not only the prerogative but the duty of the engineer to ascertain whether or not the granting of a permit therefor will conflict with some prior vested interest of another citizen, and if so then to deny the permit. This the engineer did in this case, and he was legally justified, for should he have granted a permit to Laughlin it would have interfered with the right of the other applicant to whom a permit had been granted for the same reservoir site.

SCOTT, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

SCOTT, JUSTICE.

On May 14, 1908, an application under the provisions of Secs. 743, 744, Chap. 59, Comp. Stat., was filed in the office of the State Engineer on behalf of the plaintiff in error for a permit to construct a reservoir to be known as Lake Reservoir, for irrigation, stock water and domestic purposes, as recited therein. The application was examined by the State Engineer and that officer on May 18, 1908, returned it to the applicant for additional information. The instrument bears the following endorsement, to-wit:

"State Engineer's Office, State of Wyoming,

"This instrument was received and filed for record on the 14th day of May, A. D. 1908, at 9 o'clock a. m.

"(Signed) CLARENCE T. JOHNSTON,

"State Engineer."

The application also has the...