Lewis v. State Bd. of Control, I

• Citation: 699 P.2d 822
• Decision Date: 17 May 1985
• Docket Number: No. I,No. 84-161,No. IV,No. III,No. II,I,II,III,IV,84-161
• Parties: Gertrude A. LEWIS; Betty M. DesRosiers; Richard L. Lewis; Grace W. Lewis; Roland B. Lewis; Relta K. Cox; David M. Nelson and Constance Nelson, husband and wife; Rudolph Gunter; and Julian Land & Livestock Co., a Wyoming corporation, Appellants (Plaintiffs/Petitioners), v. STATE BOARD OF CONTROL, an agency of the State of Wyoming (George Christopulos, President; Paul Schwieger, Ex-Officio Secretary; Francis Carr, Adjudication Officer; Earl Michael, Superintendent Water Division; Paul Kawulok, Superintendent Water DivisionI; Craig Cooper, Superintendent Water DivisionII; and John Teichert, Superintendent Water DivisionV; in their official capacity); R.S. Peterson & Sons, Inc., a Wyoming corporation; Ben Weston; Marie Weston; Dale Weston; Robert A. Faddis; John H. Faddis; Hubert Faddis; Fred Allen Feller; Irene Feller; Utah Power & Light Company, a Utah corporation; John Sedey and Clara Sedey, husband and wife, Appellees (Defendants/Respondents).
• Court: United States State Supreme Court of Wyoming

Page 822

699 P.2d 822

Gertrude A. LEWIS; Betty M. DesRosiers; Richard L. Lewis; Grace W. Lewis; Roland B. Lewis; Relta K. Cox; David M. Nelson and Constance Nelson, husband and wife; Rudolph Gunter; and Julian Land & Livestock Co., a Wyoming corporation, Appellants (Plaintiffs/Petitioners), v. STATE BOARD OF CONTROL, an agency of the State of Wyoming (George Christopulos, President; Paul Schwieger, Ex-Officio Secretary; Francis Carr, Adjudication Officer; Earl Michael, Superintendent Water Division No. I; Paul Kawulok, Superintendent Water Division No. II; Craig Cooper, Superintendent Water Division No. III; and John Teichert, Superintendent Water Division No. IV; in their official capacity); R.S. Peterson & Sons, Inc., a Wyoming corporation; Ben Weston; Marie Weston; Dale Weston; Robert A. Faddis; John H. Faddis; Hubert Faddis; Fred Allen Feller; Irene Feller; Utah Power & Light Company, a Utah corporation; John Sedey and Clara Sedey, husband and wife, Appellees (Defendants/Respondents).

No. 84-161.

Supreme Court of Wyoming.

May 17, 1985.

Timothy O. Beppler and Roy A. Jacobson, Jr. of Vehar, Lehman, Beppler and Jacobson, P.C., Evanston and Kemmerer, for appellants.

A.G. McClintock, Atty. Gen., and John D. Erdmann, Asst. Atty. Gen., Cheyenne, for appellee State Bd. of Control.

Harry L. Harris and Mark W. Harris, Evanston, for remaining appellees.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

This is an appeal from a decision of the district court dismissing appellants' claims based on adverse possession and affirming the State Board of Control's order denying appellants' petition for abandonment of water rights.

We affirm.

Appellants state the issues as follows:

"I. WHETHER A WATER USER MAY ACQUIRE A JUDICIALLY DECLARED RIGHT TO WATER, ALREADY APPROPRIATE[D] BY ANOTHER, THROUGH APPLICATION OF THE DOCTRINE OF ADVERSE POSSESSION?

"II. WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL CAN BE APPLIED TO PRECLUDE THE STATE AND SENIOR WATER APPROPRIATORS FROM ENFORCING OR ASSERTING WATER APPROPRIATION PRIORITIES?

"III. WHETHER THE ORDER OF THE STATE BOARD OF CONTROL CONCERNING ABANDONMENT OF WATER RIGHTS WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND IN ACCORDANCE WITH LAW?"

On March 13, 1981, appellants petitioned the State Board of Control for a declaration of abandonment of water rights pursuant to § 41-3-401, W.S.1977. Appellants, contestants below, include persons who hold water rights to several streams which are tributary to Twin Creek. Contestees below were the owners of the downstream Beckwith Quinn & Company appropriation (BQ appropriation) from Twin Creek, which appropriation Thereafter, contestants (then plaintiffs) filed a petition in district court for judicial review of agency action pursuant to the Wyoming Administrative Procedure Act, § 16-3-114, W.S.1977 (October 1982 Pamphlet) ¹ and Rule 12 of the Wyoming Rules of Appellate Procedure. ² In addition, contestants joined with the petition a complaint seeking a determination of their ownership in the water rights by virtue of adverse possession. This "Complaint/Petition" prayed for several things, including: (1) an order setting aside the order of the State Board of Control, (2) a declaration that defendants' (contestees') appropriation rights "be declared abandoned and subordinated to Plaintiffs' respective appropriation rights on the Clear Creek, South Fork and North Hartley Creek," and (3) "[i]n the alternative, that the Court enter its judgment granting Plaintiffs a prescriptive water appropriation right over the BQ appropriation rights of record" on the Twin Creek drainage area.

is the most senior in the Twin Creek drainage area. An administrative hearing was held, and the State Board of Control denied the petition for abandonment.

Contestants claim that for lengthy and successive periods of time, ranging from 27 years, on South Fork, to 50 years, on Clear Creek, they have used the water from the subject tributaries to the detriment of the BQ appropriators' priorities. Further, contestants claim that their use has been open, visible, notorious and adverse to the BQ appropriators, and that the adverse use has been continuous, uninterrupted and exclusive for the statutory period of ten years.

Contestants admit that at various times during the above-mentioned time periods, the BQ appropriators have sought regulation of the junior water rights by officials of the State. However, the State failed to regulate these tributaries so that the BQ appropriators could receive their priority. Contestants thus claim that the BQ appropriators failed to exhaust their administrative and legal remedies to enforce such regulation.

The trial court dismissed contestants' claim of adverse possession, based on failure to state a claim on which relief could be granted. Rule 12(b)(6), W.R.C.P. In reviewing a dismissal under Rule 12(b)(6), this court will only sustain such dismissal if the complaint shows on its face that the plaintiff is not entitled to relief. Johnson v. Aetna Casualty & Surety Co. of Hartford, Conn., Wyo., 608 P.2d 1299 (1980), appeal after remand 630 P.2d 514, cert. denied 454 U.S. 1118, 102 S.Ct. 961, 71 L.Ed.2d 105 (1981), reh. denied 455 U.S. 1039, 102 S.Ct. 1743, 72 L.Ed.2d 157 (1982). Therefore, we treat as true all the allegations of contestants' complaint. Moxley v. Laramie Builders, Inc., Wyo., 600 P.2d 733 (1979).

Even with this generous standard of review, we find that the trial court was correct in dismissing contestants' claim based on adverse possession for the simple reason that we here hold that water rights may not be acquired by adverse possession or prescription in this state. ³

The question of whether or not rights to water may be acquired through adverse possession has never, until now, been answered in Wyoming. The question was considered in Campbell v. Wyoming Development Co., 55 Wyo. 347, 100 P.2d 124 " * * * Hence arises the question whether under our laws, a prescriptive right should be able to be acquired when its basis lies in the fact that public officials have failed to do their duty. It is readily seen that if it can be, a water commissioner, in office long enough, may easily enable another to acquire such title. * * * It may be necessary in the future to answer the points above suggested. We do not think that we are called on to do so now * * *." Id., 102 P.2d at 750.

                reh. denied with opinion 55 Wyo. 347, 102 P.2d 745 (1940).  There plaintiffs sought, based on a claim of prescription, to quiet title to certain water rights of the Little Laramie River, which had been used by plaintiffs for over fifty years.  The plaintiffs had adjudicated water rights to appropriate from the Little Laramie River, which was a tributary to the Big Laramie River, on which the defendant had adjudicated water rights.  This court held that the plaintiffs had failed to show that their use of the water was adverse.  We went on to say "no claim of a prescriptive right can be set up by plaintiffs, at least up to the time of the adjudication of the waters of Little Laramie River in 1892."  Id., 100 P.2d at 138.  "The only possible question is as to prescription since that time, if a prescriptive title may be obtained at all in this state, which we refused to decide."  Id., 102 P.2d at 748.   We also noted some of the things that a plaintiff would have to show in order to prove adverse possession, such as an invasion, in a substantial manner, of the rights of the defendant and the extent of that invasion during a continuous prescriptive period, and that all of this must be done with the knowledge and acquiescence of the defendant and in an open and notorious manner.  We then said
                

Once again we find it unnecessary to determine whether or not the elements of adverse possession are present inasmuch as we hold it impossible to acquire water rights by adverse possession. We base this holding on the Wyoming Constitution and the Wyoming statutes. The relevant constitutional provisions are as follows:

Article 8, § 1, Wyoming Constitution:

"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."

Article 8, § 2, Wyoming Constitution:

"There shall be constituted a board of control, to be composed of the state engineer and superintendents of the water divisions; which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion, and of the various officers connected therewith. Its decisions to be subject to review by the courts of the state."

Article 8, § 3, Wyoming Constitution:

"Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests."

These provisions establish the doctrine of appropriation for beneficial use as the law in this state. The statutes go on to set up the procedures for appropriating water. Section 41-3-101, W.S.1977, Cum.Supp.1984, defines the nature of water rights and beneficial use:

"A water right is a right to use the water of the state, when such use has been acquired by the beneficial application of water under the laws of the state relating thereto, and in conformity with the rules and regulations dependent thereon. Beneficial use shall be the basis, the measure and limit of the right to use water at all times, not exceeding the statutory limit * * *."

Section 41-4-501 et seq., W.S.1977, explain the procedure for obtaining a water right, i.e.:

"Any person, association or corporation hereafter intending to acquire the right to the beneficial use of the public water of the state of Wyoming shall, before We have held that the only way to acquire a water right is through a permit granted by the State. Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236...