Linck v. Brown

• Citation: 96 P.2d 909,55 Wyo. 100
• Decision Date: 12 December 1939
• Docket Number: 2102
• Parties: LINCK v. BROWN
• Court: United States State Supreme Court of Wyoming

96 P.2d 909

55 Wyo. 100

LINCK v. BROWN

No. 2102

Supreme Court of Wyoming

December 12, 1939

ERROR to the District Court, Fremont County; C. D. MURANE, Judge.

Suit by Ernest N. Brown against C. V. Linck for damages and injunction, based on defendant's alleged wrongful interference with plaintiff's exclusive use of irrigation ditch. An injunction was granted, and defendant brings error.

Judgment modified.

For the plaintiff in error, there was a brief by R. R. Rose and Vincent Mulvaney, both of Casper, and oral argument by Mr Rose.

Plaintiff was not entitled to an injunction under the evidence, not having sustained the burden of proof. Gustin v Harting, 20 Wyo. 1; Metcalf v. Hart, 3 Wyo 514; Maple Grove & Company v. Marshall, 75 P. 369; Rarick v. Kern, 16 Am. Dec. 497; Clark v. Glidden, 60 Vt. 707; DeGraffenried v. Savage, 47 P. 402; Shaw v. Proffitt, 109 P. 504; Arterburn v. Beard, 86 Nebr. 733. The above case seems to be conclusive of defendant's Linck's right to transport water through the Bee Line ditch and extension for the irrigation of his lands. Water rights for the direct use of the natural unstored flow of any stream cannot be detached from the lands, place or purpose for which they are acquired, without loss of priority. Sec. 122-401, R. S. 1931; Sec. 122-421, R. S. 1931. There was no evidence introduced showing that Brown did not have all of the water that he needed at any time. Brown's right has not been infringed. He has not been deprived of any water which he needs or is entitled to.

For the defendant in error, there was a brief by G. J. Christie and H. S. Harnsberger, both of Lander, and oral argument by Mr. Christie.

Plaintiff in error admits in his opening statement that there is a conflict in the testimony. This court will not disturb the findings of the trial court, where there is a conflict in the testimony. The court found that there was no license nor interest shown in plaintiff in error's favor as to entitle him to equitable relief. The case of Gustin v. Harting, cited by plaintiff in error, does not square with the facts in this case. We cite the following cases in support of our position: Shaul v. Colorado Fuel & Iron Co., 30 P.2d 478; First National Bank of Green River v. Ennis, 44 Wyo. 497; Yellowstone Sheep Company v. Diamond Dot Livestock Company, 43 Wyo. 151; In re Goshen Irrigation District, Lincoln Land Company v. Goshen Irrigation District, 42 Wyo. 229. We direct attention to the abstract in this case, which does not seem to comply with Rule 37 of this Court, in that it does not give a complete abstract of the pleadings and fails to completely abstract the testimony of plaintiff below. The judgment of the lower court should be affirmed.

KIMBALL, Justice. RINER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

The parties, Ernest N. Brown, plaintiff, and C. V. Linck, defendant, severally own lands that have been irrigated by means of the Bee Line ditch diverting water from Crow Creek in Fremont County. Plaintiff sued for damages and injunction, alleging that he was the sole owner and entitled to exclusive use of the ditch, and that defendant wrongfully interfered with such use. Defendant alleged that he had a right to use the ditch, and also claimed damages. The trial was without a jury and resulted in a judgment which denied claims for damages, but found that plaintiff was "the sole owner * * * and entitled to the sole and exclusive use" of the ditch, and granted an injunction to prevent defendant from interfering with such use. The defendant prosecutes error, and contends that the evidence is insufficient to support the finding.

Plaintiff has owned his land and appurtenant water rights since 1916. Defendant's land has been owned successively by Durrill until June, 1918; by Barnes from June, 1918, to June, 1921; by the Riverton State Bank from June, 1921, to September, 1933, and by defendant since September, 1933. These dates are shown by parol evidence and may be merely approximate. The lands of the parties are contiguous, plaintiff's in section 17, and defendant's north and west in sections 7, 8 and 18. When plaintiff acquired his land in 1916, 110 acres thereof in the northwest quarter of section 17 were irrigable from the original Bee Line ditch that had been constructed under permit No. 8242 issued in 1908. Plaintiff made proof of appropriation under this permit and received certificate of appropriation for 1.57 cubic feet of water per second, with priority date February 15, 1908. This original Bee Line ditch runs almost due south from the headgate for about one and two-thirds miles, and for half of that distance is on defendant's land near the east line of sections 7 and 18. In the fall of 1916, plaintiff desiring to provide for the irrigation of a part of his land not served by the original ditch, made application for and was granted a permit (No. 3703 En.) to enlarge and extend it. The contemplated extension was a new ditch with headgate in the original ditch near its end where it crossed the section line between sections 7 and 18, and running thence in an arc southwest, south and southeast until it reached and ran above the lands plaintiff proposed to irrigate therefrom. A large part of this proposed extension ditch would have been on defendant's land in the northeast quarter of section 18, then owned by Durrill, but that part was never constructed. Plaintiff testified that Durrill requested that the extension ditch be constructed with its headgate at a point on the original ditch almost a mile north of the headgate shown on the map accompanying plaintiff's application for permit No. 3703 En. Plaintiff agreed, and the extension ditch was constructed as requested by Durrill, though not until after Durrill had sold to Barnes. The headgate of the extension ditch, as actually constructed, is in the original Bee Line ditch near the section line between sections 6 and 7, and from this headgate the new ditch runs southwest, south and southeast across land then owned by Barnes for about a mile and one-fourth until it reaches plaintiff's land and thence along the line of the ditch described in plaintiff's permit No. 3703 En. The construction work on the new ditch was done in 1918, and some years thereafter plaintiff made proof of appropriation and received certificate of appropriation, with priority date October 21, 1916, for 1.5 cubic feet of water per second for the irrigation of 105 acres.

Defendant's water right was perfected under permit issued on the application of Barnes in July, 1919, to enlarge and extend the Bee Line ditch. The proposed extension, as shown on the map accompanying the application, was the extension ditch which, according to the testimony in this case, had already been constructed along the line suggested by Durrill, Barnes' grantor. The record of this application shows this endorsement, headed "Consent to Enlarge":

"I Ernest M. Brown, the sole owner of the Bee Line ditch, taking water from Crow Creek under Permit No. 8242 and 3703 Enl., do hereby give my free and voluntary consent to the enlargement or extension of, and to the use of water through, the said ditch, for the irrigation of 429 acres, by C. E. Barnes, according to the terms of his application for enlargement.

"Dated November 2nd, 1917.

"Ernest M. Brown."

The application was approved as Permit No. 4088 Enl., and thereafter certificate of appropriation of 5.7 cubic feet of water per second for the irrigation of 399 acres, with priority date July 21, 1919, was issued to the Riverton State Bank, Barnes' grantee and defendant's grantor.

The record in regard to the written "Consent to Enlarge," endorsed on Barnes' application for permit No. 4088 En., is confusing. The writing is dated November 2 1917, but the application on which it was endorsed was not completed and presented to the Board of Control until July, 1919. The application with the consent endorsed thereon was pleaded and introduced in evidence by plaintiff. In the petition, plaintiff alleged that the application "falsely purports to have the consent of plaintiff thereto," and denounced the written "consent to enlarge" as false, fraudulent and pretended. Defendant by motion requested that plaintiff be required to make his petition more definite by alleging "unequivocally whether he did or did not sign the consent," and the motion was denied. On the trial, plaintiff, the only witness who knew whether he did or did not sign the written consent, gave no testimony on the subject, but apparently relied on the fact that the proof showed consent by Ernest "M." Brown instead of Ernest "N." Brown. The original application could not be found, but was proved by plaintiff by introduction of a photographic copy of the application as transcribed on the record in the office of the State Engineer. The "M" instead of "N" as the middle name or initial may have been the result of a clerical error. Defendant contends that in the state of the pleadings and evidence, it must be taken as an established fact that plaintiff did sign the written "consent to enlarge." We may assume that this is so, without deciding the point. The fact is not controlling. The extension ditch had been constructed before the application for permit No. 4088 En. was completed and filed, and there was substantial evidence showing that the ditch was not thereafter...