Rutherford v. The Lucerne Canal and Power Company

Citation75 P. 445,12 Wyo. 299
PartiesRUTHERFORD ET AL. v. THE LUCERNE CANAL AND POWER COMPANY ET AL
Decision Date18 February 1904
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

This was an action for an injunction brought by Alexander Rutherford, Sarah Ann Rutherford, Nettie Rutherford, Jennie Rutherford and Sarah Rutherford against The Lucerne Canal and Power Company, a corporation, and D. A. Wucherer, as Water Commissioner, to restrain the use by defendants of any water from the North Platte River, by means of the Lucerne Canal and the possession by defendant company of a certain right of way at alleged points of conflict between the irrigating ditches of the plaintiffs and the defendant company. The District Court made special findings of fact and conclusions of law, and adjudged that the plaintiffs were not entitled to an injunction. The plaintiffs prosecuted error, complaining principally that the court erred in not awarding the relief prayed for.

Affirmed.

W. R Stoll, for plaintiffs in error.

An injunction lies to restrain repeated trespasses; it is necessary only to show a rightful possession of the property and an interference by the continuous trespasses of another. The remedy at law to be available so as to defeat injunction must be as full and complete to every intent as the remedy by injunction. (Boyce v. Grundy, 3 Pet., 210.) It is not necessary to show insolvency where the acts complained of are continuous trespasses, nor is an allegation required that adequate damages could not be obtained. (Rakes v. Rustin (Va.), 22 S. E., 498; McGregor v. Min. Co., 14 Utah 47; 89 F. 769; Halpin v. McCune, 78 N. W., 210 (Ia.); Lembeck v. Nye (O.), 24 N. E., 690; Kellogg v. King, 114 Cal. 378.) The equity doctrine preventing multiplicity of suits applies to numerous suits against the same party, as well as to separate suits against numerous parties. (Barbee v. Shannon (I. T.), 40 S. W., 584; Campbell v. Seaman, 63 N.Y. 568; 1 Pom. Eq. Jur., Secs. 245, 250, 252; 1 High on Inj., Secs. 12, 700; Galway v. Ry. Co., 128 N.Y. 132.) Repeated suits for damages are permitted for continuous trespasses. (Uline v. R. R. Co., 101 N.Y. 98; Tallman v. R. R. Co., 121 id., 119; Galway v. Ry. Co., supra; 2 Beach on Inj., Sec. 1146.) The ground of the right to injunction in case of continuous trespasses is the inadequacy of the legal remedy. In the case at bar, the right follows from the continuous trespass and because the trespass essentially destroys the substance of the estate. (2 Pom. Eq. Jur., Sec. 1357; 1 High Inj., Secs. 697-738; 2 Story's Eq. Jur., 928, 929; 2 Beach Inj., Sec. 1186; Freehold v. Gallegos, 89 F. 769; Tallman v. R. R. Co., 121 N.Y. 119; Ry. Co. v. Cunningham, 89 F. 594; Halpin v. McCune (Ia.), 78 N. W., 210; Peterson v. Hopewell (Neb.), 76 N. W., 451; Lembeck v. Nye (O.), 24 N. E., 686; Wheelock v. Norman (N. Y.), 15 N. E., 67; Coatsworth v. R. R. Co., 156 N.Y. 451; Eno v. Christ, 54 N.Y.S. 400; Miller v. Wills, 95 Va. 337; King v. Campbell, 85 F. 814; King v. Stuart, 84 F. 546; Ry. Co. v. Soderberg, 86 F. 49; Cattle Co. v. Chipman, 13 Utah 454; 45 P. 348; Distrow v. Westchester, 45 N.Y.S. 376; Kellogg v. King, 114 Cal. 378; Murphy v. Lincoln, 63 Vt. 278; Hetterman v. Harness, 42 W.Va. 433; U. S. v. Guglard, 79 F. 21; Valentine v. Schreiber, 3 App.Div. (N. Y.), 235; Buskirk v. King, 72 F. 22; Edwards v. Haeger, 180 Ill. 99; Halpin v. McCune, 107 Ia. 494; Pollock v. Cleveland S. B. Co., 56 O. St., 655; Lazzell v. Garlow, 44 W.Va. 466; Haines v. Hall (Or.), 20 P. 831; Brown v. Salary, 37 Fla. 102; Barbee v. Shannon (Ind. Ty.), 40 S. W., 584; Harmon v. Landers (Tex.), 41 S. W., 378; Rakes v. Rustin Co. (Va.), 22 S. E., 498; Lanier v. Allison, 31 F. 100; Ry. Co. v. Hussey, 61 F. 231; McClosky v. Doherty (Ky.), 30 S. W., 649; Griffith v. Hilliard (Vt.), 25 A. 427; Parier v. Fetter, 20 Kan. 47; Duncan v. R. Co. (Ky.), 4 S. W., 228; Kirkendall v. Hunt, 4 Kan., 444; Smith v. Roc. (Vt.), 9 A., 551; Schneider v. Brown (Cal.), 24 P. 715; Troe v. Larson, 84 Ia. 649; Tautlinger v. Sullivan, 80 Ia. 218; Ladd v. Osborne, 73 Ia. 95; Bolton v. McShane, 67 Ia. 208; Ashurst v. McKenzie, 92 Ala. 484; Stroup v. Chalcraft, 52 Ill.App. 608; Ellis v. Wren, 84 Ky. 254; Hannon v. Landers (Tex.), 41 S. W., 378; Arnold v. Ry. Co., 55 N.Y. 661; McPhail v. Forney, 4 Wyo., 556; Kinney on Irrig., Secs. 329, 332, 321, 334, 330.)

An allegation that plaintiff is rightfully in possession is sufficient. (Schneider v. Brown (Cal.), 24 P. 715; Cramer v. Kester, 36 id., 415; Wilson v. Bodwell, 29 F. 674; 2 Beach Inj., Sec. 1142.)

If the possession of defendant is a mere interruption of the prior posession of plaintiff, the interruption will be remedied by injunction, if the right is clear and certain. (16 Ency. L. (2d Ed.), 364, 365; Lumber Co. v. L. & I. Co., 86 F. 528; Conway ex parte, 4 Ark. 302; Krecker v. Shirey, 163 Pa. St., 534; Harrison v. Rowan, 4 Wash. C. C., 202.) Plaintiffs' claim is that they were in possession of the points in conflict previous to the possession of defendant, and were interrupted therein by the defendant, who wrongfully took possession of the same, and since maintained possession thereof.

The defendant did not exist until April 21, 1893, and its right cannot date from back of that time. The plaintiffs are entitled to the right of way from November 8, 1891, because they then took possession of the ditch, and remained in possession until ousted by the wrongful acts of defendant. The verbal grant of an easement followed by putting grantee in possession is a sufficient grant.

A water right can be conveyed only by deed sufficient to convey real estate. An attempt to convey by imperfect conveyance operates as an abandonment by the appropriator, and the purchaser's rights relate only to the date of his possession. A vendee of such right under a verbal contract or unrecorded deed obtains no benefit from the prior use by his grantor as against intermediate appropriators. (Kinney Ir., Secs. 253, 264; Salina Creek Ir. Co. v. Salina Stock Co. (Utah), 27 P. 578; Smith v. O'Hara, 43 Cal. 371.)

The abandonment by plaintiffs of the land below the points of conflict was not voluntary, but was compelled by the wrongful acts of defendant which prevented plaintiffs from complying with the United States statutes in the reclamation of the land. Hence, the defendant cannot be heard to complain of such abandonment to prevent injunction, especially as defendant proposes to maintain its ditch at the points of conflict, and prevent plaintiffs' use of water below such points.

The plaintiffs had not been guilty of laches; nor had the statute of limitations run. The plaintiffs have land below the points of conflict which can be irrigated from the ditch. The point of application of a water right may be changed, and in such case the only question is whether a prior appropriator would be injured by such change. Since plaintiffs were entitled to a certain amount of water, it is immaterial to defendant where the water might be applied, whether on lands owned by them or others, and, therefore, immaterial whether the rights of plaintiffs in Section 32 lapsed or not. Having acquired 160 acres of additional land capable of irrigation from the ditch, plaintiffs are entitled to sufficient water therefor, and as much more as will enable them to make their original appropriation available to the fullest extent. Even had no additional land been acquired, the plaintiffs would nevertheless have been entitled to an opportunity to make available their appropriation, and if for any reason in the future it should transpire that they cannot do so, then and not until then will their rights in the premises lapse.

An appropriator does not abandon his right when nonuse is caused by the wrongful acts of others, and the one at fault may not complain of an abandonment. (Kinney Ir., Sec. 150; id., 151; Moyer v. Preston, 6 Wyo., 308; 1 Pom. Eq., Secs. 397, 398, 399, 404.) An appropriator is not limited to the original places of application. (Kinney Ir., 152, 153, 154; Frank v. Hicks, 4 Wyo., 502; McPhail v. Forney, id., 556.) He may sell his appropriation to another, who may apply it on other lands. (Frank v. Hicks, supra; McPhail v. Forney, supra.) Defendant is not entitled to claim anything from the Pratt application until April 21, 1893.

Gibson Clark, for defendant in error.

A suit in equity may not be maintained to take the place of ejectment, and to try adverse claims to land which are wholly legal. An injunction will not lie to take property out of the possession of one party and put into the possession of another. A rule permitting that would deprive a defendant of his constitutional right to have the question of title and right of possession tried by a jury; and would violate the maxim that equity will not afford relief except where there is no adequate remedy at law. The defendant having been in exclusive, open and actual possession of the property in controversy since July 5, 1894, using and occupying it for its canal, and adversely to plaintiff, the plaintiff could not at any time maintain an action of trespass, for the reason that such an action being for an injury to possession there would be no trespass unless plaintiffs showed an actual or constructive possession at the time of the alleged injury. (Rafetto v. Fiori, 50 Cal. 363.) The above considerations demonstrate that plaintiffs were not entitled to relief by injunction. (1 Pom. Eq. Jur., Secs. 177-252; 1 High on Inj., 8-355; 1 Spelling on Ex. Leg. Rem., 247-364; 2 id., 994-1018; 2 Beach Inj., 998-1142; 16 Ency. Law (2d Ed.), 364, note 5; Fenton v. Justice, 51 Cal. 529; Bishop v. Baisley, 41 P. 936; Clayton v. Shoemaker, 9 Atl., 635; LeRoy v. Wright, 15 Fed., Cases No. 8273; Fussel v....

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6 cases
  • IN RE USE OF WATER IN BIG HORN RIVER SYS., 00-296.
    • United States
    • United States State Supreme Court of Wyoming
    • 14 Junio 2002
    ...we think, be personal in the sense that no one else can reap the benefit thereof. That was virtually held in Rutherford v. Lucerne Canal & Power Company, 12 Wyo. 299, 313, 75 P. 445. In that case one Pratt made the application and received the permit. The Lucerne Canal & Power Company, whic......
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    • United States State Supreme Court of Wyoming
    • 10 Febrero 1922
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    ...... HAROLD SWAINSTON, SERGE BALLIF and WINDER RESERVOIR COMPANY, a corporation, Appellants, and TWIN LAKES CANAL COMPANY, a ... Co., 18 Idaho 513, 110 P. 251; Rutherford etc. Co. v. Lucerne etc. Co., 12 Wyo. 299, 75 P. 445.). . ... . . "The. legislature shall have no power to deprive the judicial. department of any power or ......
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