May v. Penton

• Decision Date: 21 November 1932
• Docket Number: 1771
• Citation: 45 Wyo. 82,16 P.2d 35
• Parties: MAY v. PENTON, ET AL
• Court: Wyoming Supreme Court

16 P.2d 35

45 Wyo. 82

MAY v. PENTON, ET AL

No. 1771

Supreme Court of Wyoming

November 21, 1932

ERROR to District Court, Fremont County; E. H. FOURT, Judge.

Action by Fay May against Lew Penton and others. Judgment was rendered dismissing the action, and plaintiff brings error.

Affirmed.

The cause was submitted for the plaintiff in error on the brief of O. N. Gibson and Donald Spiker, of Riverton, Wyoming, and Mr. A. H. Maxwell and Mr. Geo. F. Dobler, of Lander, Wyoming.

The action was brought to determine rights under certain water permits upon which final proof had been made before the Board of Control. A demurrer was filed to the petition which was sustained. Plaintiff declined to further plead and brings error. The application of defendants' predecessors in interest for a permit to divert water from Meadow Creek was made on September 6, 1921, and proof was offered thereunder on November 7, 1925, plaintiff in error filed on October 29th, 1926, for a permit to appropriate water through an enlargement of the Crescent C Cattle Company's ditch and to construct a reservoir for certain lands described in the application. Work under this permit was commenced, and completed within the time specified. Plaintiff alleged that the permit obtained by defendant's predecessors in interest was fraudulnt; also that plaintiff was not a party to the adjudication thereof and never acquiesced therein. It was further alleged that the water supply was insufficient to meet the requirements of the appropriators therefrom. Defendant claims all of the water from Meadow Creek, and plaintiff contends that defendant is entitled to water to the extent to which beneficial use had been made at the time of its proof. The decision of the Board of Control was open to collateral inquiry. Van Buskirk v. Land etc. Co., 24 Wyo. 183; 1 Weil Water Rights (3rd Ed.) 443; Farm Investment Co. v. Carpenter, 9 Wyo. 110; Wiley v Decker, 11 Wyo. 496; Ryan v. Tutty, 13 Wyo 122. Water must be applied to a beneficial use in order to acquire a right. Wyo. Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14; Laws 1921, C. 161. Equity will entertain suits to quiet title to water. Farm Investment Co v. Carpenter, supra. Beneficial use is required to establish a right to water.

For the defendants in error there was a brief and also an oral argument by Mr. W. E. Hardin, of Lander, Wyoming.

Plaintiff in error had no interest in Meadow Creek or the water thereof when proof was submitted by defendants under Permit No. 16225. Plaintiff's petition alleges fraud without alleging the facts relied upon to establish fraud. It is not alleged upon whom fraud was perpetrated. Decrees of the Board of Control are final and conclusive unless appealed from. Sec. 122-135, W. R. S. 1931; Hamp v. State, 19 Wyo. 377, and not subject to collateral attack, all presumptions being in favor of the decree. Collins v. Bartlett, 44 Cal. 371; Bisson v. Curry, 35 Iowa 72; 3 Washburn R. P. (3rd Ed.) 173. Patents can be attacked only by someone with a prior right. Lindsey v. Miller, 6 Pet. 677; Prevost v. Gratz, 6 Wheat. 481. Defendant must allege and show an earlier right. Hess v. Bolinger, 48 Cal. 349; Moor v. Wilkinson, 13 Cal. 378; Ferry v. Street, 7 P. 713; Warner Valley Stock Co. v. Morrow, 86 P. 369; Peterson, et al. v. Ogden, 74 P. 443; Richards v. Wolfing, 32 P. 971; Wight v. Dubois, 21 F. 695. The petition fails to state a cause of action. Phillips on Code Pleadings, Sec. 244. Defendants are innocent purchasers in good faith for a valuable consideration. Legal conclusions are fraudulently stated in the petition and insufficient. Bliss on Code Pleading, Sec. 211; Pomeroy Rem., Sec. 563n; Kent v. Lake Superior etc. Co., 144 U.S. 75, 91; Cochise Co. v. Copper Queen, 71 P. 946; Read v. Yeager, 104 Ind. 195. Persons who have received the avails of a fraudulent judgment are necessary parties. Wiedersum v. Naumann, 10 Abb. N. Cas. 149. A bill founded upon fraud or misconduct which does not allege with certainty facts to sustain its general averments is insufficient and cannot be sustained. Smith v. Stone, 21 Wyo. 62; Smith v. Case & Baker Piano Mfg. Co., 197 F. 466. Fraud will not be imputed to any party that the facts and circumstances out of which it is supposed to arise, are consistent with honesty and purity of intention. Williams v. Yokum, 37 Wyo. 432.

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

OPINION

RINER, Justice.

The District Court of Fremont County sustained a general demurrer filed by the defendants to the amended petition of the plaintiff, in an action brought by May, now plaintiff in error, against Penton, et al., now defendants in error. May declined to plead further and the court accordingly entered a judgment dismissing his action and for costs. These proceedings in error were brought to review that judgment, the only error assigned and relied on being the court's ruling on the demurrer and the dismissal of the cause below, as described above.

The pleading thus successfully attacked in the District Court in substance sets forth that the plaintiff May is the owner of certain real estate in Fremont County, whose description is given; that on September 6, 1921, the application of Crescent C Cattle Company for a permit to appropriate the water of Meadow Creek in said county was filed in the Wyoming State Engineer's office and recorded as No. 16225. The location of the head gate of the ditch and the description of the lands proposed to be irrigated, as given by said application, are alleged. It is then stated that, on October 29, 1926, the plaintiff filed his application in the office aforesaid for a permit to appropriate water of the State of Wyoming through the May enlargement of said Crescent C Cattle Company's ditch, said application being recorded as No. 4507; that the work required under the terms of this application was begun June 5, 1927, completed August 22, 1927, and the State Engineer notified thereof as required by law; that on October 29, 1926, plaintiff also filed in the office aforesaid his application for a permit to construct the May Reservoir and to store, for beneficial use, the unappropriated water of the State, supplied through the May enlargement of said ditch, for the lands described in permits Nos. 4507 and 17148; that this application was approved as No. 4030, the work thereunder commenced June 15, 1927, and the State Engineer duly notified to that effect; that the time for completing this reservoir has been extended by that officer to December 31, 1933; that on October 29, 1926, plaintiff additionally filed in the office aforesaid an application for a permit to appropriate State water through the May enlargement of said ditch, the said reservoir, and the May outlet ditch, for an additional supply of water for the use of certain lands described therein and which are listed, this application being recorded as No. 17418; that the work thereunder was commenced and completed within the time fixed.

The pleading then avers that on November 7, 1925, proof of the completion of the ditch provided for in application No. 16225 aforesaid and of the application of the water to beneficial use thereunder was submitted to the State Board of Control and its order approving the same duly made and recorded; that "by the proof submitted to said Board of Control it was fraudulently made to appear that water had been applied to beneficial use under said application upon all the lands therein described, whereas in truth and in fact the total area to which said water had been beneficially applied did not exceed 8 irrigable acres."

It is thereupon charged that said order was made without notice to plaintiff, who knew nothing of it and who did not "discover the perpetration of the fraud until the season of 1929"; that, insofar as said order was unsupported by proof, plaintiff never acquiesced in same; that the water supply of Meadow Creek appropriated by the permits aforesaid is insufficient to meet the lawful requirements of the appropriators thereunder and that defendants, as successors in interest under said permit for the Crescent C Cattle Company ditch, claim the full amount of the water appropriation thereby authorized and the water commissioner is enforcing such claim to plaintiff's irreparable injury.

The amended petition further avers that, by reason of the fraudulent proof thus submitted to secure the certificate of appropriation, the defendants are only entitled to the water thereunder to the extent to which the application to beneficial use had actually been made at the time the proof as aforesaid was submitted and approved by said Board of Control. The prayer of the pleading is that the rights of the several parties be determined and defendants restrained from claiming any water, under said permit No. 16225, in excess of the allowance for the area to which the water had, in fact, been actually applied to beneficial use at the time such proof was submitted.

The question thus presented for decision is whether an order of the Board of Control of the State of Wyoming, allowing an appropriation of water, may be collaterally attacked for alleged fraud, consisting in the submission of asserted false proofs to that body by the party in whose favor the order is made, such attack being made merely by one who, at the time of the making of the order, was an utter stranger to the proceeding and entirely without interest in either the land or the water affected by such order. This question we have little hesitancy in answering in the negative.

This court, speaking of the nature of the proceedings before the Board of Control and its action in Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 267, 50 L. R. A. 747, 87 Am. St. Rep. 918, said:

"The...