Padlock Ranch, Inc. v. Washakie Needles Irrigation District

• Decision Date: 21 September 1936
• Docket Number: 1985
• Citation: 60 P.2d 819,50 Wyo. 253
• Parties: PADLOCK RANCH, INC. v. WASHAKIE NEEDLES IRRIGATION DISTRICT
• Court: Wyoming Supreme Court

60 P.2d 819

50 Wyo. 253

PADLOCK RANCH, INC. v. WASHAKIE NEEDLES IRRIGATION DISTRICT

No. 1985

Supreme Court of Wyoming

September 21, 1936

Rehearing denied October 20, 1936, 61 P.2d 410, Reported at 50 Wyo. 253 at 272.

APPEAL from the District Court of Hot Springs County; PERCY W. METZ Judge.

Proceeding in the matter of the organization of the Washakie Needles Irrigation District, wherein the Padlock Ranch, Incorporated filed a protest and objection to formation of the Washakie Needles Irrigation District. From an adverse judgment, the Padlock Ranch appeals. Rehearing denied October 20, 1936. See 61 P.2d 410.

Cause remanded.

For the appellant there was a brief and the cause was argued orally by William E. Mullen of Cheyenne, Wyoming, and Arthur Ponsford of Denver, Colorado.

Petitions and other documents were filed and docketed Civil Case 2067 on December 19, 1923, for the creation of Owl Creek Irrigation District. No action was taken or court order made as required by Section 122-703, R. S. 1931. Thereafter and on March 9, 1935, a petition and other documents were filed and docketed No. 2141, for the creation of another Owl Creek District, including about 300 acres of land, included in the first petition and steps were taken to organize under the second petition. On September 18, 1935, application was made to withdraw the original petition and refile it in another proceeding for the creation of Washakie Needles Irrigation District, which application was granted and the new case was docketed 2187. Appellant contends that the trial court was without jurisdiction, no action having been taken in case numbered 2067 until twenty-one months after the filing thereof, and after its withdrawal the case was ended. Section 122-703, R. S. Before any action was taken by the court in either case No. 2067 or No. 2187, another proceeding docketed No. 2141 for an Owl Creek Irrigation District had been commenced and prosecuted, which superseded the original proceeding docketed No. 2087. The court was without jurisdiction to enter its order of September 16, 1935, for the withdrawal of petition and documents in case numbered 2067 and authorizing the refiling thereof, after changing the name to Washakie Needles Irrigation District, nor to make its order of September 19, 1935, fixing a date for hearing thereon and for notice of such hearing, the new case being docketed No. 2187. There was nothing in the notice indicating to the petitioners that the name had been changed from Owl Creek Irrigation District to Washakie Needles Irrigation District. In fact, no notice of the order authorizing the change had ever been given to anybody. In Sullivan v. Blakesley, (Wyo.) 246 P. 918, this court refused to change the name of the district even after the notice of hearing called for that purpose. Irrigation district proceedings are statutory and must be strictly followed. The new Owl Creek Irrigation District created under proceedings docketed as No. 2141 for a portion of the same lands destroyed the identity of Owl Creek Irrigation District as originally proposed. The subsequent attempt to organize Washakie Needles Irrigation District under proceedings docketed No. 2187 on a petition and engineer's report made two years prior thereto, and after material changes in costs and benefits, was insufficient to confer jurisdiction upon the trial court to proceed in case numbered 2187. The objector and appellant appeared, protested and requested the exclusion of its lands from the scheme. The evidence shows that the project is not feasible. The court erred in refusing to exclude appellant's lands. A delay of almost two years in giving notice was unreasonable, since the statute required immediate notice. Sec. 122-703, R. S. 1931; Samuelson v. Tribune Publishing Company, (Wyo.) 287 P. 83; Porter v. Carstensen, 44 Wyo. 49. We cite the following cases as to the mandatory character of statutes fixing time, within which steps are to be taken in judicial proceedings as affecting jurisdiction: Lion Coal Company v. Contas, 42 Wyo. 94. Proper notice is essential to jurisdiction. In re Central Irrigation District, (Calif.) 49 P. 354, 357 and cases cited. Board v. Trega, (Calif.) 26 P. 237; Batty v. City, (Nebr.) 88 N.W. 139; Fogg v. District, (Calif.) 97 P. 316; 1 Kerr, Water and Mineral Cases 25; Ahern v. Board, 39 Colo. 409; Fallbrook Irr. Dist. v. Abila, 106 Cal. 365. Section 122-705 requires that notice of hearing to state the name of the proposed district. The name given in the petition Case 2067 was "Owl Creek Irrigation District" and the name in the published notice was "Washakie Needles Irrigation District," which was insufficient to comply with the statute. The creation of the new Owl Creek Irrigation District, Case 2141, out of the old Owl Creek District, Case 2067, thereby reducing the acreage, would increase the burden on the lands in Case 2187, bringing the case within the rule announced in In re Greybull Valley Irrigation District, (Wyo.) 54 P.2d 808. The conditional signatures appearing on the petitions are invalid. Newton, et al. v. Borough of Emporium, 73 A. 984. It was the duty of the court to exclude lands not benefited. Coates v. Board of Commissioners, (Colo.) 205 P. 943.

For the respondent, there was a brief and oral arguments by C. W. Axtell of Thermopolis and E. J. Goppert of Cody.

The court had jurisdiction to make all orders entered in the cause. We believe appellant's contention and authorities to the contrary are not in point. The word "on" used in the statute with reference to notice does not mean immediately. Masters v. McHolland, 12 Kan. 17; Lee v. Cook, 1 Wyo. 413; see also Murray v. Davis, (N. D.) 128 N.W. 305. The notice of hearing was sufficient. Rich v. Connelly, 199 P. 540; Bliss v. Hamilton, 152 P. 303. Petitions for irrigation districts may be amended. Secs. 89-1063, 1064; Honeycutt v. Nyquist Company, (Wyo.) 74 P. 90; Land Company v. Hoffman, (Wyo.) 195 P. 988; Bissinger & Co. v. Weiss, (Wyo.) 195 P. 527; Oviatt v. Hohnholtz, (Wyo.) 299 P. 1037. The notice was sufficient to confer jurisdiction. In re Central Irrigation District, 49 P. 354; Minard v. County, 9 Ore. 206; Fogg v. Irrigation District, 97 P. 316; 67 C. J. 1300; Long on Irrigation, 2d Ed. 530; Irrigation District v. De Lappe, 21 P. 825; In re Gallatin Irrigation Dist., (Mont.) 140 P. 92; Hanley Company v. Harney Valley, (Ore.) 180 P. 724; McLean v. District, 245 P. 285; State v. Irrigation District, 218 P. 732; Nampa v. Petrie, (Idaho) 153 P. 425. The creation of the second Owl Creek District did not increase the burden of assessments in the proposed district. In re Riverside Irrigation District, (Wash.) 225 P. 636; 67 C. J. 1300; State v. District, (Utah) 218 P. 732. Socalled conditional signatures to petitions do not render them invalid. Harney Valley Irr. Dist. v. Weittenhiller, 198 P. 1093. The court did not err in refusing to exclude appellant's lands as that is a matter to consider in proceedings under Sections 122-714 to 122-723, R. S. The contention that appellant's lands could not be benefited is a mere conclusion. The court found otherwise and no abuse of discretion is alleged. 67 C. J. 1306; Kinney on Irrigation and Water Rights 2548; Board v. Tregea, 26 P. 237; Irrigation District, 28 P. 272; Knowles v. Irrigation District, 101 P. 81; Company v. District, 102 P. 904; District v. Hamilton, 169 P. 1028; Livestock Company v. District, 251 P. 351. The court's finding that the project is feasible is supported by evidence and should not be disturbed on appeal.

ILSLEY, District Judge. BLUME and RINER, JJ., concur.

OPINION

ILSLEY, District Judge.

This is a proceeding which involves the organization of an irrigation district under Article 7, Chapter 122, of the Wyoming Revised Statutes, 1931. The facts in the case are practically undisputed. The record shows that on December 19, 1933, petitions, together with a preliminary engineering report for the creation of the "Owl Creek Irrigation District," were filed in the district court for Hot Springs County, under Civil Case Docket No. 2067. Accompanying the petitions was a signed report by Howard F. Bell, a registered engineer, under the date of December 9, 1933, and there was also a certificate by Edwin B. Burritt, State Engineer, under the date of December 12, 1933, by which he gives his approval for the purposes of organization and operation.

The original "Owl Creek Irrigation District" proceeding remained in the clerk of court's office in status quo until September 17, 1935, in Case No. 2067. However during the interim and about March, 1935, another irrigation district, under the same name--"Owl Creek Irrigation District"--was created by court order, embracing approximately 3,000 acres of land. This 3,000 acres of land was included in the irrigation district first named "Owl Creek" and afterwards, by court order, named "Washakie Needles Irrigation District." That was Case No. 2141. That district was created, on a separate petition, on March 9, 1935. On the 17th of September, 1935, C. W. Axtell, an attorney for the petitioners and respondents in this case, filed and presented a motion in the district court, stating nothing had been done as respects the original petition in No. 2067 since its filing and that another "Owl Creek Irrigation District," containing 3,000 acres, had been created in the meantime, and requesting from the district court an order to withdraw the petitions then on file in No. 2067 and refile them in the district court of Hot Springs County in case No. 2187, with the proposed name changed from "Owl Creek" to "Washakie Needles Irrigation District," and requesting further proceedings be taken in the district court, as provided for by law. This was accordingly done by an order of the district court...