McPhail v. Forney

• Decision Date: 15 February 1894
• Citation: 4 Wyo. 556,35 P. 773
• Parties: McPHAIL v. FORNEY ET AL
• Court: Wyoming Supreme Court

35 P. 773

4 Wyo. 556

McPHAIL v. FORNEY ET AL

Supreme Court of Wyoming

February 15, 1894

Commenced in District Court Aug. 18, 1892.

ERROR to District Court for Carbon County, HON. JESSE KNIGHT Judge.

This was an action brought by William G. Forney, individually and as administrator of the estate of Mollie Forney, deceased and Jane P. Dillard, against Donald McPhail, to enjoin a diversion of water from a certain irrigating ditch known as the "Forney Ditch Co. Ditch."

The State Board of Control on March 24, 1892, upon determining the priorities of water rights upon Jack Creek, caused to be issued to the Forney Ditching Company a certificate of appropriation for 4.57 cubic feet of water per second, as a first appropriation, and 1.71 cubic feet per second, as a second appropriation. The first appropriation being Priority No. 8 and the second, Priority No. 16 on said stream. The certificate contained a description of the land to be irrigated under each of said first and second appropriations and adding to the description under first appropriation "to irrigate in all about 320 acres," and under the second, "to irrigate in all about 120 acres." The quantity of land described under first appropriation, however, was about 640 acres, and under the second 160 acres.

The plaintiffs and defendant were the respective owners of the larger part, if not all, of the said lands. The ditch company conveyed to the defendant a one-fifth interest in its water right and ditch; and to the plaintiffs or their grantors a four-fifths interest therein. The defendant, however, claimed to own about 480 acres of the land described in the certificate under the first appropriation, and that he was entitled to a proportionate amount of the water therefor; that the certificate of the board amounted to a decree apportioning the water to the several lands; and that his water right was not limited to the proportion named in the conveyance. The district court decided that the board of control had not, in fact, determined as to the respective rights of the owners of lands decreed to be subject to irrigation from the said ditch, and, in law, was not authorized so to do; that plaintiffs were entitled to the enjoyment of four-fifths of the water to irrigate their lands lying under said ditch that are described in the decree of the board of control, until they shall receive enough to irrigate all of the same at the legal rate of one cubic foot per second of time for each seventy acres; and that defendant was entitled to one-fifth for a like purpose, and to any surplus which plaintiffs allow to go unused. The defendant prosecuted error.

Judgment affirmed.

Craig & Chatterton, for plaintiff in error.

The amount of land being irrigated, and susceptible thereof, is the measure of the quantity of water to which an owner is entitled, and not the ownership of stock or interest in the ditch. (Combs v. Agricultural Ditch Co., 17 Colo. 146; Bloom v. West (Colo.), 32 P. 846; Hill v. Owen et al., 5 Cal. 445; Laws 1891, Chap. 8, Sec. 24, 25.) Not by the quantity diverted, but by an application to a beneficial use. (Barrows v. Fox, 98 Cal. 63; Peregory v. McKissick, 79 id., 572; Thomas v. Guirard, 6 Colo., 530; U. S. Rev. Stat., Sec. 2339.) There is no property in the corpus of the water. (Eddy v. Simpson, 3 Cal. 249; Kidd v. Laird, 15 id., 161; McDonald v. Askus, 29 id., 200; Alde Gulch, Etc., Co. v. Hayes, 6 Mont. 31; Farmers High Line, Etc., v. Smithworth, 13 Colo. 111; Thomas v. Buckley, 17 Barb., 654; Const., Art. 8, Sec. 1.) Ditch owners are public carriers. (Price v. Riverside Co., 56 Cal. 431; McCrary v. Bandry, 67 id., 120; Wheeler v. N. Colo. I. Co., 10 Colo. 582; Honeyman v. Blake, 19 Cal. 579.) Appropriation to be measured by smallest capacity of ditch. (Higgins v. Baker, 42 Cal. 233; Atchison v. Peterson, 20 Wall., 507; Ophir M. Co. v. Carpenter, 6 Nev., 393; Caruthers v. Pemberton, 1 Mont. 111.) Board had authority to determine respective rights of owners. (Const., Art. 8, Sec. 2; Art. 1, Sec. 31; Laws 1891, Chap. 8, Secs. 25, 24.)

McMicken & Blydenburgh, for defendants in error.

Ownership in a ditch gives right to use the water against one not an owner, as long as the water is applied to irrigation of lands under his control at not exceeding the statutory standard. (Combs v. Ditch Co., 17 Colo. 146.) Water is not appurtenant to the land. There are two distinct rights; one in water and one in land. (Bloom v. West, 32 P. 846 (Colo.); Strickler v. Colo. Springs, 16 Colo. 61; Fuller v. Swan, Etc., Co., 12 id., 12.) The board of control did not determine the respective rights of the parties. The constitutional provisions are prospective only, and do not interfere with vested rights. (Art. 8, Sec. 31; Cooley's Const. Lim., 62, 63; Strickler v. Colo. Springs, supra; Rev. Stat. 1887, Secs. 1324, 1343, 1361; Chap. 55 Laws 1888, Sec. 17; Const. Art. 1, Sec. 35.)

CONAWAY, JUSTICE. GROESBECK, C. J., and CLARK, J., concur.

OPINION

CONAWAY, JUSTICE.

It is alleged in the pleadings by the parties to this action, both plaintiffs and defendant, that defendants in error own a four-fifths interest in the irrigating ditch known as the Forney Ditching Company's Ditch, and that plaintiff in error owns a one-fifth interest in the same ditch. Plaintiff in error, however, claims the right to divert from said ditch and use more than one-fifth of the water carried by it. The parties, plaintiffs and defendant, both claim under an order of the board of control dated March 24, 1892, determining and establishing in the Forney Ditch Company a right by two appropriations to 6.28 feet per second of time of the waters of Jack Creek, and describing the lands to be irrigated by this water. The parties to this suit now own the ditch in the proportions stated, deraigning their respective titles from the Forney Ditching Company by deeds purporting to convey to them their respective interests in the ditch and "the water therein contained."

As held in the case of Hicks v. Frank et al.,...