Quinn v. John Whitaker Ranch Co.

• Decision Date: 11 July 1939
• Docket Number: 2106
• Citation: 92 P.2d 568,54 Wyo. 367
• Parties: QUINN ET AL. v. JOHN WHITAKER RANCH CO. ET AL
• Court: Wyoming Supreme Court

92 P.2d 568

54 Wyo. 367

QUINN ET AL. v. JOHN WHITAKER RANCH CO. ET AL

No. 2106

Supreme Court of Wyoming

July 11, 1939

ERROR to the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by the John Whitaker Ranch Company and others against John D Quinn, as state engineer of the State of Wyoming, and others under the Uniform Declaratory Judgments Act. To review a judgment declaring the rights of the parties, the defendants bring error.

Case remanded with direction to modify judgment.

For the plaintiffs in error, the case was submitted on the brief of Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, all of Cheyenne, Wyoming.

There was no evidence that water in excess of one cubic foot of water per second for each seventy acres was needed to irrigate any of the land embraced in this action. Article I Sections 31, 32 and 33 of the State Constitution and Article VIII, Sections 1 and 3 of the same instrument have a bearing upon this controversy. Territorial statutes relating to water rights are Chapter 22, Laws of 1869; the Act of December 10, 1875; the Act of 1886 and Chapter 55 of the Laws of 1888. Reference is made to these statutes for the reason that they provided for the regulation and limitation of the use of water to so much thereof as could be applied to a beneficial use. After statehood, Chapter 8, Laws 1890-91 was enacted, which was in effect a water code, evidently intended to conform to the provisions of the new state constitution. This was the statute which for the first time restricted use to one cubic foot per second for each seventy acres of land to be irrigated. It was prescribed as the maximum, irrespective of the character of the soil or the kind of crops being produced thereon. The legislature had authority to enact such a law. Kinney on Irrigation, 2d Ed., Vol. 3, § 1341. The statute was reviewed in Hamp v. State, 19 Wyo. 377 and there held to be constitutional. The certificates of appropriation issued to plaintiffs in this case, whether we regard them as licenses or contracts, are subject to the police power of the State and must yield to such power. Triegle v. Association, 297 U.S. 189; Bayside Fish Company v. Gentry, 297 U.S. 422; Accident Company v. Nelson, 291 U.S. 352; Wiseman v. Gillioz, 96 S.W.2d 459; Roth Drugs v. Johnson, 57 P.2d 1022; Oil Company v. Commission, 176 S.E. 1; Rice v. Corporation, 165 So. 423; Farm Investment Company v. Carpenter, 9 Wyo. 110. In McPhail v. Forney, 4 Wyo. 566, a Board of Control adjudication involving territorial rights was considered. We think the case is authority for the proposition that territorial rights are limited to the statutory standard of use. Collett v. Morgan, 21 Wyo. 117. It would seem that these cases should be authority for limiting the use of water to the statutory amount, particularly in the absence of evidence showing that the land to be irrigated under a territorial right requires more than one cubic foot per second for each seventy acres irrigated. See also Nichols v. Hufford, 21 Wyo. 477. We think the law is well established that regardless of when, where or how the appropriation may have been made originally, the limit of the use of water thereunder is a beneficial use, and that no more water may be taken under such appropriation than the amount that may be beneficially applied to the land. Ryan v. Tutty, 13 Wyo. 122; Johnson v. Irrigating Company, 13 Wyo. 208. The right to regulate the use of property for the benefit of the public is well established. Euclid v. Realty Company, 272 U.S. 365; Building Inspector v. McInerney, 47 Wyo. 258; State Engineer v. Ditch Company, 82 L.Ed. 774; Association v. Blaisdell, 290 U.S. 398; Hartford Accident Company v. Nelson Company, 291 U.S. 352. In the McInerney case, this court sustained the provisions of a zoning law. The right to use property is restricted by a great variety of laws and such restriction is no longer questioned. We believe that the restriction of the use of water to one cubic foot per seventy acres is a reasonable and constitutional limitation.

For the defendants in error, there was a brief by C. R. Ellery and A. G. McClintock of Cheyenne, and oral argument by Mr. Ellery.

The water rights of defendants in error were adjudicated by the decree of a territorial court on July 12, 1889. Said rights are vested and not subject to impairment by the state legislature. It must be presumed that a territorial court investigated and determined the amount of water necessary to irrigate the lands of the defendant in error. 2 Kinney on Irrigation (2d Ed.) 1594; Long on Irrigation (2d Ed.) p. 238, § 136; King on Irrigation and Drainage, 214; Rodgers v. Pitt (Nev.) 129 F. 932; Joerger v. Electric Company (Cal.) 276 P. 1017; Witherill v. Brehm (Cal.) 240 P. 529, 279 P. 432; Beasley v. Engstrom (Idaho) 168 P. 1145. The decree created a vested right. Metal Company v. Atwood, 289 F. 453; McCullough v. Commonwealth, 172 U.S. 102; Hodges v. Snyder, 261 U.S. 600; Caldwell v. Erickson (Utah) 211 P. 957; Springstun v. Springstun (Wash.) 299 P. 14; Downer v. Livestock and Land Co. (Cal.) 43 P.2d 843; Kendall v. Kendall (Cal.) 10 P.2d 131; Humphrey v. Gerard (Conn.) 77 A. 65; Harkey v. Smith (N. M.) 247 P. 550. The case of Hinderlider v. Company, 58 S.Ct. 785 is cited by plaintiff in error. We regard it as an outstanding authority in support of the decree of the trial court. The ditches of defendants in error are sufficient in capacity to carry the volume of water decreed by the court. The water officials have no authority to prevent their use for that purpose. Parshall v. Cowper (Wyo.) 143 P. 302; Van Buskirk v. Live Stock Company, 24 Wyo. 183; Ryan v. Tutty, 13 Wyo. 122; Hamp v. State, 19 Wyo. 377; Laramie Irrigation and Power Company v. Grant, 44 Wyo. 392; Simmons v. Ramsbottom (Wyo.) 68 P.2d 153. The water officials apparently contend that notwithstanding the terms of the court decree, said officials have the right to determine the volume of water necessary to properly irrigate the lands of defendants in error, and that any amount used in excess of one cubic foot per second for each seventy acres is a waste of water. This contention is so glaringly inconsistent as to be undeserving of argument. They cite Chapter 8, Section 25, Laws 1890-91 in support of their contention, but we do not believe that this statute justifies their contention. Chapter 1 of the Territorial Session Laws of 1886 declared the public waters belonged to the public and were subject to appropriation. Subsequent legislative acts contained similar declarations. The riparian doctrine has never been recognized in the territory or state of Wyoming. Moyer v. Preston, 6 Wyo. 308; Farm Investment Company v. Carpenter, 9 Wyo. 110; Bergman v. Kearney (Nev.) 241 F. 884. Plaintiffs in error seem to place great reliance upon the case of Nichols v. Hufford, 21 Wyo. 477. That case involved a territorial appropriation which was adjudicated by the Board of Control. A reading of the opinion will disclose that it does not support their contention. This court has clearly decided that an adjudication of a water right, either by court decree or order of the Board of Control, is binding and conclusive, and not subject to collateral attack unless void for want of jurisdiction. May v. Penton, 45 Wyo. 82. The state water officials seem to challenge this doctrine. It is impossible to misconstrue the position taken by this court in Parshall v. Cowper or in Laramie Irrigation and Power Company v. Grant, 44 Wyo. 392. See also Arnold v. Roup (Colo.) 157 P. 206; Broughton v. Stricklin, 28 P.2d 219; State of Arizona v. State of California, 283 U.S. 423. The significance of the real meaning of Chapter 8, Section 25, Laws 1890-91, as later amended by Chapter 105, Laws 1935 and Section 122-117, R. S. 1931, is made clear when the fundamental basis of the so-called "duty of water" is considered. 2 Kinney on Irrigation 1592. The legislature has no power to legislate the truth of facts. Just what constitutes "waste of water" depends upon many features which can only be determined after judicial inquiry. Gordon v. Lowry (Nebr.) 217 N.W. 610; Champlin Refining Company v. Commission, 286 U.S. 210. If the contention of the water officials is adopted, plaintiffs will be deprived of their vested property rights without due process of law in violation of the Fourteenth Amendment to the Federal Constitution. Hodges v. Snyder, 261 U.S. 600; McCullough v. Commonwealth, 172 U.S. 102; Coombes v. Getz, 285 U.S. 434. Since defendants in error filed their brief herein, the Supreme Court of Nebraska has handed down its opinion in the case of Enterprise Dist. v. Willis, 284 N.W. 326, in which the pivotal question involved in this case is considered at considerable length. We therefore take the liberty of directing the court's attention to that decision.

Before Riner, C. J.; Kimball, J.; and Burgess, District Judge. RINER, Ch. J., and BURGESS, District Judge, concur.

OPINION

KIMBALL, Justice.

This is a proceeding in error for review of a declaration of rights in an action under the Uniform Declaratory Judgments Act, §§ 89-2401 to 89-2415, R. S. 1931. The question is whether a state statute prescribing the minimum duty of water appropriated for irrigation has the effect of limiting the quantity of water under rights initiated under Territorial laws and adjudicated by decree of the Territorial courts.

Plaintiffs are users of water for irrigation under rights adjudicated by decree made in July, 1889, by the Territorial District Court which at that time had exclusive original jurisdiction of the statutory proceeding to determine priorities of appropriations of water. (Sec. 1339, R. S. 1887.) The court was authorized to...