Mau v. Stoner
| Decision Date | 08 November 1905 |
| Citation | 14 Wyo. 183,83 P. 218 |
| Parties | MAU v. STONER ET AL |
| Court | Wyoming Supreme Court |
Rehearing Denied December 30, 1905, Reported at: 14 Wyo. 183 at 198.
ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG Judge.
Proceeding for the appointment of a distributer of water flowing in an alleged joint or partnership ditch. From an order making the appointment as prayed in the petition filed by the plaintiffs, the defendant brought error. The proceeding was had under the provisions of Sections 908 to 914, inclusive Revised Statutes of 1899.
Appeal dismissed.
J. H Ryckman, for plaintiff in error.
The primary purpose of the suit is to procure the appointment of some person to take charge of the ditch, to clean it out and to fit it for use. This the appellant claims the District Court of Uinta County has no jurisdiction to do.
Section 915, Revised Statutes, 1899, points out how a ditch may be cleaned out, if one or more of the joint owners fail or neglect to do his, her or their proportionate share of the work necessary for the proper maintenance and operation of such ditch, and there is no other method to accomplish such purpose prescribed by law. Nowhere do our statutes prescribe the method adopted in this case, and the court, therefore, is without jurisdiction.
Jurisdiction of the subject matter is the power to adjudge concerning the general question involved and is not dependent upon the state of facts which may appear in a particular case or which is claimed to have arisen under that general question. It is the power to act upon the general and abstract question and to determine and adjudge whether the particular facts presented call for the exercise of that power. (Hunt v. Hunt, 72 N.Y. 229; Sweet v. Merry, 109 N.Y. 94; Ayers v. Russell, 50 Hun, 298; Lange v. Benedict, 73 N.Y. 27; Cooper v. Reynolds, 10 Wall, 308; Gates v. Lansing, 5 Johns., 282; Ry. Co. v. Sutton, 130 Ind. 415; McCoy v. Able, 131 Ind. 420; Jackson v. Smith, 120 Ind. 522; State v. Com., 12 Pet., 657.)
Where there is clearly no jurisdiction over the subject matter, any authority exercised is usurped authority. (State v Wolever, 127 Ind. 315.)
It will not be seriously contended that in a purely statutory and summary proceeding such as this is attempted to be made, perhaps under Section 908, which provides for the appointment of a distributer of water in certain cases, that the rules of good code pleading are thereby relaxed to such an extent that only conclusions of law and not facts need be alleged as in this petition. The rule is without exception that the allegation of a conclusion of law raises no issue.
It is alleged that the plaintiffs and defendant are joint owners in a certain irrigating ditch known as the Mau Canal. Now, joint ownership is always purely a question of law, and such an allegation presents no fact upon which issue can be taken, and joint ownership is the foundation of the suit. If there is no joint ownership alleged there is no cause of action stated, and the defendant's demurrer to the petition should have been sustained. An allegation of title must state the facts from which title is necessarily inferred. To entitle the plaintiff to the relief sought he must show in his petition that he has a prior right to the water, and it is not sufficient to allege priority without setting forth the facts upon which his claim of priority is based. For him to allege that he has a right to certain water by virtue of a prior appropriation would be to plead a conclusion of law. His petition must contain every essential averment necessary to show the existence of his right under the law of appropriation, just as we claim here the petition must contain every essential averment necessary to show the existence of joint ownership. (Downing v. Ditch Co., 20 Colo. 546; Farmers & Co. v. Southworth, 13 Colo. 111; Heintzen v. Binninger, 79 Cal. 5.)
The petition is not only defective in failing to allege the facts from which the asserted joint ownership may be inferred, but it is defective in failing to define the location and area of the lands claimed by them to be irrigated from this canal, or how many cubic feet per second they are jointly or severally entitled to. Lest these patent defects might not in the opinion of the trial judge be grounds for demurrer, and in order to save in any event a proper exception, the defendant moved to compel the plaintiffs to make the petition more definite and certain in regard to the points sought to be reached by demurrer. This motion was denied, which ruling appellant claims was error. Furthermore, the alleged joint ownership in the canal as shown by the petition, assuming it to be good in any respect, must have been a special joint ownership and that of a peculiar kind, and this was sought to be cured by the motion. The plaintiffs would seem to claim to have a joint ownership in the ditch only for the purpose and to the extent of carrying the overplus of five cubic feet, which is conceded to the defendant. That the canal carries more than five cubic feet is nowhere alleged, or how much water the plaintiffs collectively or separately claim is not set out.
The petition is further fatally defective in that there is no allegation that the plaintiffs or any of them ever obtained a permit from the State Engineer to appropriate any water through the canal in controversy, or otherwise, in any manner, or for any purpose whatsoever.
It is a well settled rule in water litigation, especially to quiet title or to ascertain the extent of asserted rights, that all persons claiming an interest should be brought into court that there may be an end to litigation. The appellant has a perpetual injunction against Stoner, affirmed by the Supreme Court, enjoining him from taking any of the appellant's water flowing in this canal and against Victor Forgeon from interfering with appellant's water flowing therein. It is respectfully submitted that until those restraining orders are vacated or modified the District Court of Uinta County has no power to authorize Sheriff James at the behest of John W. Stoner or otherwise to infringe upon those injunctions in letter or spirit.
It is clear that neither John W. Stoner nor Victor Forgeon, nor their privies, could have shut off the water of appellant under any pretext or for any purpose whatsoever at the time and for long before their petition was filed. They could not do by indirection that which they were forbidden directly by the injunction to do.
This cause ought to have been tried by a jury. When a person claims an interest in an irrigating ditch, and the defendant denies his right, an issue is formed which ought to be tried by a jury. Water rights are the most valuable property rights in this state. To be sure, no jury trial was demanded because there was no jury in attendance when the case came on for trial, and to have asked for a jury would have been a waste of breath, and the law does not require a useless thing to be done. The case was tried in vacation by the court at an adjourned day, but the trial by jury was not waived, as appears by the record, and unless so waived as provided by Section 3659, the case should have been continued by the court of its own motion under the issues until a jury would be in attendance.
J. W. Lacey and Hamm & Arnold, for defendants in error.
The court below had jurisdiction. Revised Statutes, Sections 908 to 914, authorize any joint owner in a ditch where the joint owners are unable to agree as to the distribution of the water, to file in the District Court a "verified petition setting forth such fact," and asking for the appointment of a suitable person to distribute the water. This act, unless unconstitutional, gives to the District Court jurisdiction of the subject matter. No ground of unconstitutionality is pointed out, and we see no reason for denying the constitutionality of the law. Jurisdiction of the person of the defendant in error was obtained by acknowledgment of service of summons, and by a general appearance, without any question of the jurisdiction. It seems to be contended that the action is one to procure the appointment of some person to clean out and fit the ditch for use, and it is urged that the court has no jurisdiction of such a matter. But this is not the purpose of the action, since the petition clearly alleges joint ownership of the ditch, and that the joint owners are unable to agree relative to the division or distribution of the water received and carried through the same. Now, for the present purpose, even if it were conceded that the cleaning out of the ditch would not itself be within the jurisdiction of the court, the other matters alleged in the petition as to distribution of the water are within Section 908. And even if the defendants in error asked more than they were entitled to, that would not oust the jurisdiction concerning the things to which they were entitled.
The allegation of ownership, or joint ownership, made in the petition in general terms is sufficient. (Ely v. R. R. Co., 129 U.S. 291; Leavenworth Co. v. Leahy, 12 Kan. 124; Adams v. Bank, 123 F. 641; Johnson v. Vance, 86 Cal. 128; Payne v. Treadwell, 16 Cal. 242; Garwood v. Hastings, 38 Cal. 216; Gage v. Kaufman, 133 U.S. 471; Board v. R. R. Co., 24 Wis. 93; Gillett v. Robbins, 12 Wis. 329; Billings v. Sanderson (Mont.), 19 P. 307; Overbagh v. Oathout, 35 N.Y.S. 962; Witherell v. Wiberg, Fed. Cases No. 17, 917; Vinnedge v. Nicholai (Neb.), 44 N.W. 89; Krug v. McGilliard, 76 Ind. 28; R. R. Co. v. Oyler, 60 Ind. 383; Trittipo v. Morgan, 99 Ind. 269.)
The third contention of the plaintiff in error assumes that...
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