Parshall v. Cowper

• Decision Date: 28 September 1914
• Docket Number: 754
• Parties: PARSHALL, STATE ENGINEER, ET AL., v. COWPER, ET AL
• Court: Wyoming Supreme Court

143 P. 302

22 Wyo. 385

PARSHALL, STATE ENGINEER, ET AL., v. COWPER, ET AL

No. 754

Supreme Court of Wyoming

September 28, 1914

ERROR to the District Court, Albany County; HON. V. J. TIDBALL Judge.

The action was brought by Robert J. Cowper, Augusta Cowper, and the City of Laramie against A. J. Parshall, as State Engineer; Frank S. Knittle, as Superintendent of Water Division No. One, and Carson Adams, as Water Commissioner, to enjoin the closing of the headgate of an irrigating ditch. Judgment was entered for the plaintiffs granting the injunction prayed for, and the State Engineer and Division Superintendent brought error. The other material facts are stated in the opinion.

Reversed.

D. A Preston, Attorney General, and M. C. Brown, for plaintiffs in error.

The petition alleged that the ditch in question had been sold by the Cowpers to the City of Laramie, and that there was an agreement between them whereby the ditch and water rights might be used for the purpose of irrigating the Cowper land. If the city became the owner of the water, it was necessary that the petition show that the ditch and water right had been purchased by the city for such purposes as are allowed by law and with the intention of bringing the water within the limits of the city for use of its citizens. The petition containing no such allegation, the city could not, upon the pleadings, lawfully acquire any right to the water by the transaction. Hence, so far as the city is concerned, the petition is fatally defective. Among other things necessary to be done before the city could lawfully make the purchase was to submit the question to a vote of the people. The city has no authority to purchase water and water rights to irrigate lands of other persons in no way connected with the city, but lying outside the city limits and not used for city purposes. The city, therefore, could not make any lawful contract with the Cowpers for the use of all the water claimed to have been purchased from them by the city. And therefore, the Cowpers are without any interest in the matters complained of, and the city was making no legitimate use of the water, so that the rule of damnum absque injuria applies. Where there is no injury injunction will not be allowed. It was shown by the affidavits filed in opposition to the allowance of a temporary injunction that for many years not more than twenty acres described in the certificate of appropriation for the Home Ditch had been irrigated, and that for more than ten years there had not been to exceed one-half foot of water per second run down to the intake of said ditch, and only .38 of a cubic foot actually applied to the irrigation of the land described in the certificate of appropriation. The balance of the water was permitted to flow down the creek to be wasted. Thus the question presented for consideration was, could the engineer and superintendent prevent the waste of water by giving the order that only .38 of a cubic foot be permitted to run down to the headgate of the ditch. That the city was without right to buy and use all the water claimed in irrigating the Cowper land, see: Dillon on Munic. Corp. (2nd Ed.), Sec. 55; Petersburg v. Metzger, 21 Ill. 205; Muteon v. Larne, 23 How. 435; Thompson v. Lee Co., 3 Wall. 320; Thomas v. Richmond, 12 Wall. 349; Clark v. Davenport, 14 Ia. 495; Leonard v. Canton, 35 Miss. 189; 20 Ency. Law (2nd Ed.) 1140.

Where water is not being applied to a beneficial use by the first appropriator, and the appropriator next in point of time and use loses the use of the water, then the water is being wasted, which the water officials are authorized by law to prevent. (Comp. Stat. 1910, Secs. 802, 724, 777). The quantity of water to which an appropriator is entitled at any particular time is necessarily controlled by the capacity of his ditch. (McDonald v. Lannen, 47 P. 649; Comp. Stat. 1910, Secs. 741, 755, 778; Farm Inv. Co. v. Carpenter, 9 Wyo. 122; Johnston v. Irr. Co., 13 Wyo. 208).

It is clear that the city had not reduced the water to possession, nor brought it in any manner to the city for use, and, therefore, so far as its alleged rights are concerned, the water was being wasted. (Sherred v. Baker City, (Ore.) 125 P. 826). And the water officials were authorized to prevent that waste. The action cannot be maintained without joining as defendants the real parties in interest, viz: the appropriators from the stream. (McLean v. Farmers, &c., Co., (Colo.) 98 P. 16; Board v. McComb, (U. S.) 23 L.Ed. 623; Pennoyer v. McConnaughy, (U. S.) 35 L.Ed. 366). Moreover, this action is a suit against the state, which cannot be brought except as authorized by law.

Will McMurray and N. E. Corthell, for defendants in error.

The affidavits used on the hearing of the application for temporary injunction are not properly a matter of record in this cause. No question arises here upon the sufficiency of the evidence or the propriety of the rulings in the admission and rejection of evidence, for the motion for a new trial fails to specify any particular evidence or rulings as error. The only allegations of the petition which were denied by the answer are those referring to the ownership of the ditch by the city, the use of the appropriation before and after its adjudication, the conspiracy between the defendants and the forcible and wrongful deprivation by them of the use of the water by the plaintiffs. The answer contained much argumentative matter and many evidentiary facts, evidently intended to state in substance that the decree of the board of control was wrongful and not justified by the facts of the appropriation. These matters, however, were stricken from the answer. If it should be conceded that the city was without any right or capacity to acquire the ditch and water right, then the same would remain the property of the Cowpers, the other plaintiffs in the case, and the unlawful attempt of the city to acquire it would not have the effect of destroying the right, but would leave it where it was. Therefore, without considering the city's rights, the other plaintiffs are clearly entitled to maintain the action for the protection of their rights. But the contention that the city could not acquire the property is not tenable. Ample provision therefor is found in the statutes. (Const. Art. 8, Sec. 5; Comp. Stat., Secs. 725, 726, 1422, 1440, 1474-1476, 1866, 1867, 1876, 1887, 3829, 3831; Edwards v. Cheyenne, 19 Wyo. 110). And the provision for the temporary continuance of the use of the water in the manner and for the purpose for which it had previously been used was also legal and proper. (Edwards v. Cheyenne, supra). The water officials are without any authority to repudiate the decree of the board of control adjudicating the priorities of rights to the water of the stream in question. In the absence of that decree there would be no power in any official to regulate the flow or apportion the use of the water of the stream. Such administrative action is only permitted by the statute after priorities have been adjudicated. (Ryan v. Tutty, 13 Wyo. 122; Farm Inv. Co. v. Carpenter, 9 Wyo. 110). The decree of the board is final and conclusive. (3 Kinney on Irr. 1593; Montrose Canal Co. v. Ditch Co., 23 Colo. 233; Irr. Co. v. Trust Co., 32 Colo. 102; O'Brien v. King, 92 P. 943; Ditch Co. v. Adams, 29 Colo. 317). The theory of the water officials that there had been a change in the tract of land to which the water was applied and, therefore, the priority had been forfeited or abandoned cannot be sustained. (Johnston v. Irr. Co., 13 Wyo. 208; Hard v. Irr. & Land Co., (Ida.) 76 P. 331). The statute imposing a forfeiture must be construed strictly, and there can be no forfeiture until it has been judicially determined. (19 Cyc. 1358, 1359). But the question of the forfeiture or the abandonment of the water right must be determined by a proceeding in a court of competent jurisdiction, and the necessary parties in interest must be before the court in an appropriate proceeding. Until such determination, it is the duty of the water officials to distribute the water in accordance with the statutory adjudication. They cannot raise and are not interested in the question of the exercise of rights by appropriators. (Boulder Ditch Co. v. Hoover, 48 Colo. 343; Coombs v. Farmers &c. Co., 38 Colo. 420). That this is not a suit against the state, but is maintainable against these officers is well settled. (Reagan v. Farmers L. & T. Co., 154 U.S. 362).

BEARD, JUSTICE. POTTER, J., concurs. SCOTT, C. J., did not participate in the decision.

OPINION

BEARD, JUSTICE.

This action was brought by the defendants in error against the plaintiffs in error and Carson Adams, water commissioner, to enjoin them from closing a headgate and shutting off a part of the water claimed by plaintiffs below. The district court granted an injunction, and plaintiffs in error appeal.

It appears that the Cowpers were the owners of certain lands and on March 26, 1892, in a proceeding for the adjudication of the waters of Soldier creek, the board of control granted to the Home Ditch or Home Water Ditch the first and prior right to the use of the waters of said creek in the amount of 1.8 cubic feet per second of time for the irrigation of 120 acres of the Cowper lands, said ditch being owned by them and taking water from said creek. On December 31, 1910, the Cowpers sold and conveyed to the City of Laramie said ditch and water right, and by agreement between them the Cowpers continued to use the ditch and water to irrigate a part if not all of said lands until July 12, 1912, when defendants shut off the water from said ditch except .38 of a cubic foot. The plaintiffs alleged that at that time and at the time of the commencement of this action, July...