Louth v. Kaser

• Decision Date: 22 August 1961
• Docket Number: No. 2992,2992
• Parties: Charles LOUTH, Appellant, (Defendant below), v. C. E. KASER, Appellee, (Plaintiff below).
• Court: Wyoming Supreme Court

Page 96

364 P.2d 96

Charles LOUTH, Appellant, (Defendant below), v. C. E. KASER, Appellee, (Plaintiff below).

No. 2992.

Supreme Court of Wyoming.

Aug. 22, 1961.

James A. Greenwood, Cheyenne, for appellant.

Henderson & Godfrey, Paul B. Godfrey, Cheyenne, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

The appellee here, plaintiff below, sought to enjoin defendant-appellant from preventing plaintiff's coming upon defendant's land for the purpose of maintaining and repairing what is known as the Gilland Ditch and to clean out and repair the headgate to that ditch on Lodge Pole Creek.

Plaintiff had a water right adjudicated by the State Board of Control for 3.50 cubic feet of water per second of time to be used for the irrigation of 245 acres of his lands. The waters were diverted from Lodge Pole Creek at a point on defendant's lands and were carried across a portion of defendant's lands through the Gilland Ditch for use upon the plaintiff's lands.

After defendant's answer had controverted several of plaintiff's material allegations, a hearing, held July 14, 1959, on the application for temporary injunction, resulted in the parties consenting that in lieu of granting or denying plaintiff's application, the court might enter such an order as in its judgment would protect the personal and property rights of the parties from any recurrence 'of the conditions complained of.'

The court thereupon ordered:

'That Plaintiff may enter upon the land of defendant * * * for the purpose of constructing and installing a headgate and diversion works to enable plaintiff to divert at all times from the natural channel of Lodge Pole Creek the full amount of water lawfully entitled to be diverted under Permit No. 5703 adjudicated by the State Board of Control in the name of John Gilland with priority of September 23, 1903, for 3.50 c.f.s. to be used for irrigation of the 245 acres of land for which said permit was granted and said water right adjudicated, and for the further purpose of installing a measuring weir in the John Gilland Ditch to be used to measure the quantity of water being diverted at all times from Lodge Pole Creek into said John Gilland Ditch and for the further purpose of repairing and placing in a usable condition the John Gilland Ditch.'

The court's order further provided that the location of the authorized installations should be made

'* * * under the specific directions, specifications and authorization of a duly licensed civil engineer qualified to pursue his profession in the State of Wyoming, to be appointed by the Court, and that said construction, location and installation of said headgate and weir be approved by the State Engineer of the State of Wyoming and plaintiff shall not make or attempt to make any diversion of water into John Gilland Ditch until said work herein provided has been performed at plaintiff's expense.'

After directing where the installation should be made, the court ordered:

'* * * that the John Gilland Ditch shall be repaired and reconstructed on the original Ditch line from the original point of diversion across defendant's land * * * in such a manner as to provide for the conveyance of the full amount of water that can be lawfully diverted from Lodge Pole Creek under said John Gilland adjudicated appropriation, through said Ditch on a grade to be established by said civil engineer; that the plaintiff be and hereby is authorized to enter upon defendant's said lands for that purpose and in the future to maintain and repair said ditch along a right of way to be established at the final hearing after consideration of recommendations of the civil engineer and other evidence which may be adduced.'

The court then ordered the plaintiff to 'at all times maintain said John Gilland Ditch in a proper state of repair to permit efficient use thereof and so as to not in any way interfere with defendant's proper use of his lands adjacent to said Ditch,' and concluded by stating that the order should not affect any claim of damages either party might have against the other and that the order might be modified by the court to conform with evidence adduced at the final hearing.

On February 25, 1960, the court permitted defendant to amend a portion of his answer. The material averments of this amendment were: That the John Gilland Ditch had never conveyed from Lodge Pole Creek water in excess of 1.50 cubic feet per second of time; that 97 acres of the land for which plaintiff's appropriation was adjudicated had never been irrigated by diversion of water from Lodge Pole Creek under the John Gilland Ditch; that the John Gilland Ditch adjudicated water right had been abandoned for more than fifty years last past to the extent of 97 acres; that not in excess of 148 acres of land described in the plaintiff's Certificate of Appropriation had ever been irrigated under the John Gilland Ditch water right; that for more than five years last past and immediately prior to November 14, 1958, the date the suit was filed, the plaintiff had not diverted any water from Lodge Pole Creek under the John Gilland Ditch appropriation and applied the same to beneficial use in the irrigation of any land; and that the John Gilland Ditch water right had been abandoned since 1952.

After more than eight months from the date of the original hearing on the application for temporary injunction, a final hearing was had. At the outset of this hearing, the court ruled the matter then in issue was 'the repair and reconstruction of the ditch on the basis of the water right which is now operative because it never has been abandoned, that is, of the old water right and its provisions.' The court also stated, 'Any testimony on that, how this ditch should be constructed, with that in mind I will receive. But as to the question of abandonment or reduction in the acreage to be irrigated through this ditch I think that is a matter for another proceeding.'

After some discussion with the court, appellant's counsel stated:

'I guess we have come to an understanding. I might want to be sure about that but the Court in this hearing at this time, Court considers it wholly immaterial and not germane to the issue to be determined to show that the ditch hasn't been used and that water hasn't been diverted from Lodge Pole Creek and used beneficially on the Kaser lands in more than ten consecutive last past years.'

The court replied: 'Under the pleadings and agreements here, yes.'

Apparently appellant feels it was error for the court to so limit the evidence to be given at the final hearing, as it denied defendant any opportunity to prove his amending allegations that there had been an abandonment of a portion, or possibly the whole, of plaintiff's water right.

It seems clear that if plaintiff possessed the right to divert any amount of water at a point on defendant's lands and transport the same through a ditch upon defendant's lands, plaintiff was entitled to the injunctive relief sought by him, and any interference with plaintiff's entry upon defendant's lands for maintenance and repair of those facilities necessary for the enjoyment of his right is indefensible. The abandonment of only a portion of plaintiff's water right would not preclude plaintiff from the relief prayed in his complaint. However, defendant's amendment alleges that for more than five years immediately preceding the commencement of the action, no water was diverted from Lodge Pole Creek and applied to beneficial use upon plaintiff's lands. This brings us squarely to the question: May an unadjudicated claim of abandonment of an existing water right be interposed as a defense to an action for injunction by proof of nonuse so as to establish an abandonment by plaintiff of his water right, or are the provisions of §§ 41-47 through 41-53, W.S.1957, providing a procedure for a declaration of abandonment of water rights, exclusive of such a method of determining that there has been an abandonment of the water right?

The applicable portion of § 41-47, W.S.1957, says:

'* * * in case the owner or owners of any such ditch, canal or reservoir shall fail to use the water therefrom for irrigation or other beneficial purposes during any five successive years, they shall be considered as having abandoned the same, and shall forfeit all water rights, easements and privileges, appurtenant thereto, * * *.'

Section 41-48, W.S.1957, provides that any water user who might be affected by a declaration of abandonment who desires to bring about a legal declaration of such abandonment shall present his case by petition in writing to the Board of Control.

Section 41-49, W.S.1957, deals with notices to be given and the hearing to be held upon the petition.

Sections 41-50, 41-51 and 41-52, W.S.1957, prescribe the procedures, orders and cost assessments which may result therefrom, and § 41-53, W.S.1957, makes provision for appeal with trial de novo in the district court in cases where the State Board of Control declares a water right to be abandoned.

Our research discloses that this subject has been touched upon and possibly decided by previous holdings of this court.

In April, 1900, Farm Investment Co. v. Carpenter, 9 Wyo. 110, 150, 61 P. 258, 269, 50 L.R.A. 747, 87 Am.St.Rep. 918, a suit to quiet plaintiff's title to the right to use water under an early appropriation, where the jurisdiction of the district court to determine the conflicting rights of the parties to the use of waters was at issue because of the statutory provisions for abandonment, the court said:

'* * * The legislature has not attempted to devest the courts of that jurisdiction, and we do not think it could successfully do so. Although in the statutory proceeding for the determination of water rights the courts obtain jurisdiction only by way of appeal from the decisions of the board of control, all the ordinary remedies known...