Ryan v. Tutty

• Decision Date: 02 December 1904
• Citation: 13 Wyo. 122,78 P. 661
• Parties: RYAN v. TUTTY
• Court: Wyoming Supreme Court

78 P. 661

13 Wyo. 122

RYAN v. TUTTY

Supreme Court of Wyoming

December 2, 1904

ERROR to the District Court, Crook County, HON. RICHARD H. SCOTT of the First Judicial District, presiding.

The material facts are stated in the opinion.

Affirmed.

Nichols & Adams, for plaintiff in error.

This action was brought not to adjudicate the rights of the parties to the waters in controversy, but to restrain the defendant from interfering with the rights of the plaintiff as adjudicated by the water commissioner and superintendent until such time as the proper authorities might adjudge that he was entitled to the same. The water commissioner and water superintendent had authority to make their orders in the premises such as would fully protect the parties in their respective rights. Said officers having found that the waters of Bonanza Springs belonged to the plaintiff and not to the defendant, and having ordered the latter to close his headgate and allow the springs to flow in their natural channel, the plaintiff is entitled to an injunction to restrain defendant from making any use of the waters of such springs; the defendant not having appealed from the decision of the superintendent, and by using the water being guilty of a misdemeanor under the statute. (Laws 1901, Chap. 102, Sec 1; id., Chap. 86.)

It is not contended that the action of the water officials was final, nor that the defendant could not have applied to the courts for relief, but merely that until the defendant either appealed from the decision of the officers, or in some other way applied to the court for such relief as he might have been entitled to, the plaintiff is entitled to an injunction to restrain the use of the water by defendant in violation of the orders of the commissioner and superintendent. (Willey v. Decker, 11 Wyo. 496.) Priority of appropriation dates from the filing of the application in the engineer's office. (R. S. 1899, Sec. 929.) The water superintendent and water commissioner are in some manner connected with the State Board of Control, and what is done by them in accordance with the statute must stand until set aside by some proper tribunal.

E. E Enterline and H. A. Alden, for defendant in error.

The plaintiff failed to prove any of the facts alleged in his petition. Since all the evidence offered to establish those facts, namely: the decision rendered by the superintendent and water commissioner, was excluded by the court, there was nothing for the court to do but to dissolve the injunction.

Instead of dividing the water in controversy in accordance with the adjudication made by the Board of Control, the officers took it from the first appropriator, the defendant, and attempted to give it to the second appropriator, the plaintiff, and it cannot be successfully contended that, having taken away the water from one lawfully entitled thereto, the wrong-doer can by an action in equity prevent the lawful appropriator from using the water until the latter shall appeal from the decision of the commissioner, which was made without authority and was unwarranted.

In this action the defendant had a right to interpose any defense that he might have, either legal or equitable. It was conclusively shown by the evidence that the plaintiff was not injured by the acts of the defendant, but, on the contrary, that the latter was injured in consequence of the unlawful acts of the water commissioner. It would be a strange doctrine that, under the circumstances of this case, a perpetual injunction should be granted in favor of the plaintiff when as a matter of fact he profited in no manner from the action of the water commissioner and the defendant was injured by being deprived of the water which he had lawfully appropriated.

The superintendent and commissioner were without right to adjudicate priorities between the plaintiff and defendant. Their sole duty was to distribute the water between the parties in accordance with the adjudication made by the Board of Control. It was not shown that plaintiff had a prior appropriation to the waters of the springs which were being used by the defendant, which fact must have been shown to entitle plaintiff to any relief in this action.

The decision of the water commissioner is not the decision of a tribunal, which, though wrongful, must prevail unless an appeal is taken. The authority of that officer is fixed by statute and no right is given him to take water from a prior appropriator and give it to a subsequent one. That is what was done by the officer in this case, and his acts were without jurisdiction and void.

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

This action was brought in the District Court by the plaintiff in error, J. C. Ryan, claiming a prior appropriation of a certain quantity of the waters of Lytle Creek, to restrain the defendant in error, George W. Tutty, from interfering with plaintiff's alleged prior appropriation by diverting the waters of certain springs, known as Bonanza Springs, which are alleged in the petition to be tributary to said Lytle Creek. The prayer of the petition is "that the defendant be restrained from using the water from said spring or in any manner diverting it from its natural channel until such time as the proper authorities shall determine that he is entitled to the same, and for such other full and complete relief as the court may deem just and equitable in the premises." Among other things, it is alleged in the petition in substance that the water division superintendent and the water commissioner had investigated the claim of the plaintiff and had decided that the plaintiff was entitled to the water flowing from the springs used by defendant, and that the commissioner under the direction of the superintendent had ordered the defendant to allow the water of such springs to flow into the creek for plaintiff's use; and that no appeal had been taken from said decision and order, but that defendant continued to use the water of said springs in violation thereof. The petition contains an allegation of irreparable injury to the plaintiff unless the defendant be enjoined as prayed.

On final hearing, the District Court found generally for the defendant, dissolved the temporary restraining order, and decided that the same ought not to have been granted. Judgment was accordingly entered in favor of the defendant and he was awarded costs.

From the evidence it appears that the plaintiff was granted by an order of the Board of Control, entered June 2, 1894, a certificate of appropriation of water from Lytle Creek, his appropriation being numbered "6" as a first appropriation, nothing being awarded him under that certificate for any subsequent appropriation. It further appears that he was by an order of the board, entered October 19, 1899, granted a certificate of appropriation of water from the same stream designating his first appropriation as number "2" on that stream. The date of the appropriation is not given in the first certificate, but in the second the date is fixed as June 10, 1896.

There was introduced in evidence on behalf of defendant a certificate of appropriation issued to him by order of the Board of Control, entered March 14, 1901, granting him as a first appropriation, priority number one (1) of the water from "springs tributary to Lytle Creek through the Bonanza Ditch," and reciting the date of such appropriation as July 8, 1899. No priority number on main stream was designated in his certificate.

On the basis alone of these certificates it would appear that the appropriation of the plaintiff antedated that of defendant, and that if the springs from which defendant's appropriation was made were and are in fact tributary to Lytle Creek, and the waters thereof go to form part of the waters naturally flowing in the main stream at the place where plaintiff's diversion is made, the priority of plaintiff would be superior to that of defendant. No additional evidence of plaintiff's appropriation was offered, except his own testimony to the effect that since making application for an appropriation in 1894 he had continuously used the waters of Lytle Creek for the irrigation of lands described in his certificate of appropriation.

Upon the evidence the principal controversy between the parties is whether or not the springs used and claimed to have been appropriated by the defendant do in fact compose part of the waters naturally flowing in Lytle Creek down to the plaintiff's headgate. There seems to be no doubt but that Bonanza Springs, so-called, are tributary to Lytle Creek. The evidence discloses that there are two or more of those springs rising respectively from one hundred feet to one hundred and fifty yards from the main creek bed, and flowing in a well defined channel into the creek; and that after following along the creek bed for a short distance, probably a quarter of a mile, the water sinks, and the creek is then in ordinary times, and indeed at all times except after a heavy or continued rainfall, dry for a distance variously estimated by the witnesses of from one to two miles, when the water rises again at a point a few yards above some other tributary springs. It appears also from the undisputed testimony of one witness that above Bonanza Springs the creek bed is dry except in seasons of high water or heavy rains for about two miles, and above that there is usually more water in the stream than below Bonanza Springs.

The point of plaintiff's diversion is located from eight to ten miles below Bonanza Springs, and the witnesses differ as to whether the water of those springs after sinking...