Mitchell Irr. Dirstrict v. Whiting, Com'r

Decision Date27 April 1943
Docket Number2257
CourtWyoming Supreme Court

APPEAL from District Court, Goshen County; HARRY P. ILSLEY, Judge.

Action by the Mitchell Irrigation District against John A. Whiting Jr., Water Commissioner of District No. 14, Division No. 1 State of Wyoming, to obtain a mandatory injunction requiring the defendant to prevent the diversion of water from the natural channel of the North Platte River in Wyoming by certain canals in the state. From a judgment for defendant the plaintiff appeals.


For the appellants, there was a brief by James A. Greenwood, of Cheyenne, and oral argument by Mr. Greenwood.

In this action, appellant district seeks mandatory injunction to require a Wyoming water commissioner to regulate its head gate in Wyoming in a manner that will supply water under its priority from the North Platte River to irrigate its lands in Nebraska. The Commissioner has refused to act on the ground that he is without jurisdiction of Nebraska water rights. We think the point was settled In re State v. Parshall, Engr., 22 Wyo. 318 and in Ryan v. Tutty, 13 Wyo. 122. The trial court made and rendered extensive conclusions of fact and of law in support of its judgment to which appellant as plaintiff below excepted. The law of priorities has been generally enforced and recognized. Clark v. Ashley, 82 P. 588; Lower Co. v. Canal Co., 60 P. 629; Alamosa Co. v. Nelson, 93 P. 1112, Rodgers v. Canal Co., 151 P. 923; Platte V. Co. v. Buckers Co., 53 P. 334; Union Mining Co. v. Dangberg, 81 F. 73. Water commissioners exercise police power in performing ministerial duties. Section 122-303, R. S. 1931; Hamp v. State, 19 Wyo. 377; Parshall v. Cowper, 22 Wyo. 385; Van Buskirk v. Co., 24 Wyo. 183. A water right is a property right. Art. 8, Sec. 8, Const.; Sec. 122-401, R. S. 1931; Whalon v. Canal Co., 11 Wyo. 313; Hunt v. Laramie, 26 Wyo. 160; Hereford Ranch v. Packing Co., 33 Wyo. 14. Appellant is entitled to protection against junior appropriations in times of insufficient water supply to satisfy all needs. Willey v. Decker, 11 Wyo. 496; Morris v. Bean, 221 U.S. 485; Weiland v. Co., 259 U.S. 498; Howell v. Johnson, 89 F. 556; Hoge v. Eaton, 135 F. 411. Only parties in interest need be joined in actions for injunctive relief. Kinney on I. & W. R., Sec. 1632, 2d Ed.; McLean v. Co., 98 P. 16; Williams v. Bankhead, 86 U.S. 563. Persons who will not be affected by the judgment are not necessary parties. 39 Am. Jur. 884; Weber v. Cheyenne, 55 Wyo. 202; Upjohn v. Moore, 45 Wyo. 96; Ir. Co. v. LaPorte, 26 Wyo. 552. Special findings control general findings. Hilliard v. Douglas Oil Fields, 20 Wyo. 201; Geer v. Sibley, 23 P. 220. A finding contradictory to evidence is not authorized. Allen v. Lewis, 26 Wyo. 85; Bishop v. Hawley, 33 Wyo. 271. Failure to make findings upon all material issues is reversible error. 64 C. J. 1232; Cheesbrough v. Jensen, 109 P.2d 889; Right Printing Co. v. Stevens, 100 A. L. R. 528. The evidence shows that the conduct of respondent resulted in depriving appellant of its very valuable property without due process of law and equal protection of its property rights within the jurisdiction of the Wyoming court. The rights of appellant rest upon the law of Congress. Howell v. Johnson, supra; Farm Investment Co. v. Carpenter, 9 Wyo. 110. The judgment in this case flies in the face of the decision of this court in Willey v. Decker, supra, and disregards Article 8 of the Wyoming constitution and Section 122-303, R. S. 1931. The court erred in refusing appellant's requested conclusions of fact numbered 12, 13, 14, and 15; the court also erred in refusing appellant's requested separate conclusions of law numbered 16, 17, 18, and 19, all of which were justified by substantial evidence in the record, by the Wyoming statutes, and by all the court decisions dealing with priority rights on interstate streams. The judgment complained of should be vacated with directions to enter judgment granting appellant the relief prayed for in its petition.

For the defendant and respondent, there was a brief by Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Ass't. Attorney General, and oral argument by Mr. Kerr.

Appellant seeks to have the North Platte River water rights administered upon a priority basis regardless of state lines and demands that defendant recognize lands lying within Nebraska as though they were located in the State of Wyoming within the district under the supervision of respondent. The head gate of appellant is located one-half mile west of the Nebraska-Wyoming State Line but all lands under it are located in Nebraska. The record shows that defendant did not act arbitrarily in confining his authority to interests within his jurisdiction. The trial court found that defendant had no authority to regulate the head gate of plaintiff corporation. The Nebraska Supreme Court has approved this doctrine. State v. Mitchell District, 262 N.W. 543. The duties of a water commissioner are defined in Parshall v. Cowper, 22 Wyo. 385, also in Willey v. Decker, 11 Wyo. 496. The Wyoming State Board of Control is without jurisdiction to adjudicate an appropriation of water for lands outside the state. O. P. Att'y. General Preston, Nov. 20, 1912. The point was considered in the case of State v. Parshall, 22 Wyo. 318. The Wyoming court has no jurisdiction over lands in Nebraska. Carpenter v. Strange, 141 U.S. 87; 12 C. J. 477. See also the recent case of U. S. v. Tilley, 124 F. 850. None of the cases cited by appellant are applicable to this case on the facts. Washington v. Oregon, 297 U.S. 517. Moreover, the court should have all the parties affected before it. Binning v. Miller, 55 Wyo. 478; Kinney on Irrigation, Sec. 1632, 2nd Ed.; Pomeroy's Equity, 5th Ed., Sec. 114. Respondent is only a nominal party. McLean v. Reservoir Co., 98 P. 16, a case on all fours with this case. See also Williams v. Bankhead, 86 U.S. 185; 32 C. J. 293. In U. S. v. Tilley, supra, the Eighth Circuit Court of Appeals refused to consider a complaint charging out-of-priority appropriations on the North Platte River for the reason that the question should be determined by the Supreme Court of the United States.

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


RINER, Justice.

The Mitchell Irrigation District, plaintiff below and appellant here, brought a suit in the District Court of Goshen County, Wyoming against John A. Whiting, Jr., Water Commissioner of Water District No. 14, Division No. 1 of the State of Wyoming as defendant in that court and respondent here. These parties will be generally designated hereinafter, the appellant as the "plaintiff" or the "District" and the respondent as the "defendant" or the "Commissioner." The purpose of the suit was to obtain a mandatory injunction requiring the defendant to prevent the diversion of water from the natural channel of the North Platte River in Wyoming by certain canals in this state known as the Lucerne, Torrington, Rock Ranch Enlargement, Burbank, and Graten Enlargement. All of the head gates and diversion works of these canals are situated on said river above those of the plaintiff which last are situated in Wyoming about one-half mile west of the boundary line between the states of Wyoming and Nebraska.

The facts which are deemed necessary and proper to be considered in order to dispose of this case are substantially as follows: The plaintiff is a Nebraska Corporation and all the lands for which it takes water from the North Platte River by means of the diversion works above mentioned are located entirely in the State of Nebraska. Its principal place of business and the residence of its executive officers are also in the State of Nebraska. On October 2, 1920, the Board of Control of the State of Wyoming adjudicated in favor of the plaintiff a water right in the natural flow of the waters of the North Platte River to the extent of 194.6 cubic feet per second of time, said water right being given a priority date of June 20, 1890 for the irrigation of the lands heretofore mentioned and for livestock and domestic purposes.

The defendant is the duly appointed and acting Commissioner of Water Division No. 1, District No. 14 in the State of Wyoming which embraces that portion of Goshen, Converse, and Natrona Counties in Wyoming from the Nebraska-Wyoming boundary line westerly to the location of the Pathfinder reservoir in Natrona County wherein a portion of the basin of the North Platte River is located. It is the duty of the defendant as such Water Commissioner at all times, when available quantities of water flowing into the channel of said river are not sufficient to fully satisfy the demands of all appropriators, to supervise the diversion of the water of said river within the territory under his jurisdiction among the several ditches and reservoirs withdrawing water therefrom according to the priority right of each appropriator having lands requiring irrigation in this state. It is his duty also to regulate or cause to be regulated the distribution of water among the various users of water in Wyoming and to prevent the use of water by an appropriator making use of water in this state in excess of the volume thereof to which said appropriator is lawfully entitled. The defendant's duties as such Commissioner dealt with and related to the disposition of such water during the years 1940 and 1941. The North Platte River is an interstate non-navigable stream as it passes through Goshen County, Wyoming into the State of Nebraska at the western boundary line of the state last mentioned separating that state from the State of Wyoming.

The record before us discloses that on...

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10 cases
  • State of Nebraska v. State of Wyoming United States
    • United States
    • U.S. Supreme Court
    • June 11, 1945
    ...the States is partly reflected in State v. Mitchell Irrigation District, 129 Neb. 586, 262 N.W. 543, and Mitchell Irrigation District v. Whiting, 59 Wyo. 52, 136 P.2d 502. 14 Nebraska objects to the margin of safety provided above actual existing uses. But we do not believe that the margin ......
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    ...of Control, supra; Platte County Grazing Association v. State Board of Control, supra. In denying standing in Mitchell Irr. Dist. v. Whiting, 59 Wyo. 52, 136 P.2d 502 (1943), where a senior downstream appropriator sought to abandon the water right of the junior upstream water user and the s......
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    ...before us is concerned, the question of defect of parties. We are cited by counsel for respondent to the case of Mitchell Irr. Dist. v. Whiting, 59 Wyo. 52, 136 P.2d 502. But that case is clearly distinguishable from the case at bar. It was not an action for a tort, but an action for a mand......
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