Moyer v. Preston

• Decision Date: 27 April 1896
• Parties: MOYER v. PRESTON
• Court: Wyoming Supreme Court

44 P. 845

6 Wyo. 308

MOYER v. PRESTON

Supreme Court of Wyoming

April 27, 1896

Commenced in the District Court on or about September 17 1890; amended petition filed May 31, 1892.

ERROR to the District Court for the county of Crook, HON. WILLIAM S. METZ, Judge.

The case is stated in the opinion.

Judgment Affirmed.

J. L Stotts and N. K. Griggs, for plaintiff in error.

Plaintiff in error, Moyer, is entitled to the water, claimed by him, as a riparian owner. (Act of Congress July, 1866; R. S. Wyo., Sec. 1317; Jones v. Adams, 19 Nev. 78; Line v. Haggin (Cal.), 4 P. 925; Union M. & M. Co. v. Ferris 2 Saw., 195; Hanson v. McCue, 42 Cal. 303; Elliott v. R. R. Co., 10 Cush., 191.) As Moyer became the owner in fee simple of the lands in question, on August 9, 1885, and at that time became entitled to claim the water as a riparian owner, under the statute of 1875, then in force, no subsequent act, either of defendant in error or of the legislature, could in anywise interfere with Moyer's claim as such riparian owner. Section 31 of the act of 1886 expressly reserved all vested rights.

Preston having failed to file a statement of his claim with the clerk of court, no evidence can be considered in support thereof. (R. S. Wyo., Sec. 1353.) Moyer filed his statement with such clerk before he introduced any evidence, hence his evidence was competent. He settled upon his pre-emption claim July 24, 1885. Commenced his ditch in the fall of 1885, for the purpose of appropriating all the waters of the spring for domestic and agricultural purposes; in 1886, as cattle had tramped over said spring and ditch, it became necessary for him to fence the same, and in that year he traveled 300 miles and return for fencing with which to enclose the spring and ditch. On April 28, 1887, he turned the water upon his land, and used the same for the irrigation of his crops. Irrigation was unnecessary in 1888 and 1889, owing to the natural rainfall and moisture. In 1890 he again commenced to use the water, and used it until enjoined in this suit, in October, 1890. Moyer's appropriation was in view of this and other evidence prior to that of Preston. (Kimball v. Gearhart, 12 Cal. 27; McDonald v. Bear River, etc., 13 Cal. 220; Irwin v. Strait, 4 P. 1215; McCauley v. McKeig, 8 Mont. 389.) To cause water to run in a flume or ditch, and then go to waste is not a beneficial use. Preston had allowed as much water to go to waste as Moyer claimed a right to. Moyer was entitled to that wastage regardless of all other questions. (Simpson v. Williams, 18 Nev. 432; Hindman v. Rizor, 21 Or. 112; Sieber v. Frink, 2 P. 901; Irwin v. Strait, 4 id., 1215; Maeris v. Bicknell, 7 Cal. 261; Weaver v. Eureka, 15 id., 271; Davis v. Gale, 32 id., 26; Larimer v. People, 8 Colo. 614; Wheeler v. Northern Co., 10 id., 582; Dicks v. Caldwell, 14 Nev. 167; Edgar v. Stevenson, 11 P. 704.)

Percolating water can not be permanently appropriated, and the owner of land, on which a spring is situated, may so use his land as to cut off the water from an irrigating ditch which is supplied from the spring. (Hanson v. McCue, 42 Cal. 303; Huston v. Leach, 53 id., 262; Cross v. Kitts, 69 id., 271; So. P. R. R. v. Dufour, 95 id., 615; Mosier v. Caldwell, 7 Nev., 363; Strait v. Brown, 16 id., 317.) To constitute a watercourse there must be a channel--a bed to the stream--not merely low land or a slough over which water flows. (Chicago, K. & W. R. Co. v. Morrow, 42 Kan. 339; Palmer v. Waddell, 22 id., 352; Gibbs v. Williams, 25 id., 1.)

Tom Hooper and Gibson Clark, for defendant in error.

The facts clearly show that the appropriation of water by Moyer and Diefenderfer was inferior and subordinate to that made by McCrae whose rights Preston succeeded to. In order that there may be a lawful appropriation two things must concur. First, there must be a diversion of the water by some means from the stream, and second, the water must be applied to some beneficial use. Nothing was done by Moyer in 1885 and 1886 which at all approached an appropriation. The spring was on Diefenderfer's land, and until Moyer dug his ditch he did nothing to convey the water upon his own land. The law only permits the doctrine of relation as to time to apply to cases where reasonable diligence has been observed. (Pomeroy on Riparian Rights, Secs. 52-54 and cases cited.)

The doctrine of riparian rights as it existed at common law never at any time obtained in Wyoming. It was not applicable. (Coffin v. Left Hand Ditch Co., 6 Colo. 443.) The object of the congressional act of July, 1866, was not the recognition of riparian rights, but rather the contrary. (Atchison v. Peterson, 20 Wall., 507; Basey v. Gallagher, id., 670.) Neither does our own Statute of 1875, Sec. 1317 R. S., confer riparian rights upon one through whose lands a stream flowed. (Coffin v. L. H. Ditch Co., supra. )

With reference to the failure of defendant in error or his predecessor to file the statutory statements, all the evidence offered by Preston was received without objection. The statute, moreover, does not make it obligatory upon a water-right claimant to offer proof showing that he had filed the statements. It does not follow that the statement was not filed because the record fails to show that it was filed. The statute requiring the filing and the penalty for its neglect was repealed before the hearing was had. Again this is not merely a proceeding for the adjudication of water rights brought under the Act of 1886, but is a suit brought also to recover damages and to enjoin Moyer from wrongfully diverting the water.

The evidence does not show a wilful waste of water on Preston's part. But even if there had been, that fact would not deny him the water he was actually entitled to, because of application to beneficial uses.

The record fails to show that the bill of exceptions was ever filed in the office of the clerk of the district court, and it is not certified to by such clerk. It is not properly in the record nor a part of it. It must appear by entry of record that the bill was presented for allowance within the time given. (Howard v. Bowman, 3 Wyo., 312; Jones v. Christian, 24 Mo. App., 540; Burk v. R. R. Co., 26 O. St., 643; Hill v. Bassett, 27 id., 597; Hefner v. Moyst, 40 id., 112.) It must appear from the transcript certified to by the clerk under seal of court that the bill was filed as a part of the record. (R. S., Sec. 2649; Jenkins v. Wilson, 40 N.E. 39; Spence v. James, 31 S.W. 540; Jennison v. Stall, 41 N.E. 74; Walsh v. Brockway, id., 76; Guenther v. State, id., 13; Holstadt v. Daggs, 4 Mo. App., 158; Herman v. Harbunts, 27 N.E. 731; Guirl v. Gillett, 24 id., 1036; Walker v. State, 35 Ark. 358.) The bill must be authenticated by the clerk under seal of the court. (Roy v. U. M. Co., 3 Wyo., 422; Martin v. Fillmore, 62 N.W. 863; Martin v. C. C. Bank, id., 872; Moore v. Waterman, 40 Neb. 498; Helsel v. Seeger, 39 P. 237; Rickwine v. Jones, 39 N.E. 460; 2 Ency. Pl. & Pr., 283.) The transcript must be further attested by the certificate of the clerk under seal that it is a full and complete transcript of the entire record in the trial court, or of so much thereof as is necessary to show the errors complained of. (State v. Cash, 36 Kan. 623; State v. Ricker, 40 id., 14; Neiswender v. James, 41 id., 463; 2 Ency. Pl. & Pr., 283 and 284, and cases cited.) When papers are transmitted to the appellate court, the clerk below must annex his certificate showing them to be the original or copies as the case may be. (Shewey v. Manning, 14 Wis. 486.) The power of the judge is limited to settling, allowance, and signing of the bill, the clerk of court only has the power to authenticate when settled, allowed, and signed. (R. S., Secs. 2649, 3135; 1 Ency. L., 1020; n. 5, and cases cited.)

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

OPINION

POTTER, JUSTICE.

Whether this action was one brought under the then existing statutory provisions or an adjudication of the priorities of rights to use water for beneficial purposes, or was purely a personal action brought by defendant in error to restrain plaintiff in error from unlawfully diverting the waters of a natural stream to the detriment of defendant in error, and for damages for a past diversion of such water, and incidentally a determination of the priorities between such parties, need not be determined. The amended petition is entitled as to parties the same as any ordinary civil action, but seems also to be entitled as provided by the statute of 1886, providing for an adjudication of water rights. An order of the court appears, fixing a day for hearing, and another referring the case for the taking of testimony, which indicate that it was then understood to be a statutory proceeding. It is clearly shown, however, that the parties to this cause were the only persons interested as appropriators from said stream, and it is apprehended, by the court, which was apparently the understanding of counsel as well, that all the matters involved can be decided without any special reference to the precise character of the action, or any determination of that matter. The only possible question which would at all depend upon a decision concerning the nature of the action is the method and time of bringing the cause to this court, and we were led to understand on oral argument that any objection in that respect which was urged in the brief of counsel for defendant in error was not insisted upon. Although no motion was filed or presented to dismiss the proceedings in error, the point is made on behalf of defendant in error, that the record before us is not sufficiently authenticated to authorize a review of the judgment of the district court. This suggestion has not escaped the attention of the...