Scherck v. Nichols

Decision Date30 October 1939
Docket Number2112
PartiesSCHERCK v. NICHOLS ET AL
CourtWyoming Supreme Court

ERROR to the District Court, Natrona County; C. D. MURANE, Judge.

ACTION by Burchel A. Scherck against Nick A. Nichols and others to declare defendants' water rights null and void. Judgment for defendants, and plaintiff brings error.

Affirmed.

For the plaintiff in error, there was a brief by Hagens & Wehrli of Casper, and oral argument by Mr. Wehrli.

Ownership of possessory claim to land to be irrigated is necessary for a valid appropriation. 67 C. J. 970, § 415; Prentice v. McKay (Mont.) 98 P. 1081; Marshall v. Orchard Company (Idaho) 125 P. 208; Bassett v. Swenson (Idaho) 5 P.2d 722; Scott v. Jardine Milling Company (Mont.) 257 P. 406; Williams v. Costs (Cal.) 198 P. 1017; Allen v. Magill (Ore.) 189 P. 986; Alaska Gold Mining Company v. Mining Company, 239 F 638; Avery v. Johnnson (Wash.) 109 P. 1028; Whitmore v. Salt Lake City (Utah) 57 P.2d 726; Connolly v. Harrel (Mont.) 57 P.2d 781; Sec 122-404, W. R. S. 1931. Appropriations cannot be acquired for speculation. 67 C. J. 973; Toohey v. Campbell, 60 P 396. The intent of the appropriator is a necessary factor in determining the validity of any appropriation. 67 C. J. 984; Moyer v. Preston, 6 Wyo. 308, 321; Miles v. Power Company (Mont.) 79 P. 549. A water right may be sold separately from the land to which it is appurtenant. Frank v. Hicks, 4 Wyo. 502; McPhail v. Forney, 4 Wyo. 556; Johnston v. Irrigating Company, 13 Wyo. 208; North Side Canal Company v. State Board of Equalization, 8 F.2d 739; Wyoming v. Colorado, 298 U.S. 573; 67 C. J. 1039; Cantrell v. Sterling Mining Company (Ore.) 122 P. 42; Oppenlander v. Left Hand Ditch Company (Colo.) 31 P. 854. The case of Rutherford v. Lucerne Canal & Power Company, 12 Wyo. 299, relied upon by defendant in error, is not in point. No lawful diversion of water can constitute an appropriation unless based upon a permit. Wyoming Hereford Ranch v. Hammond Packing Company, 33 Wyo. 14; Johnston v. Irrigating Company, 13 Wyo. 208; Frank v. Hicks, supra. A record of a water right for lands in excess of what has or can be irrigated is an unwarranted cloud on plaintiff's title. In re Water Rights in Ahtanum Creek (Wash.) 245 P. 758. An action to quiet title is an appropriate remedy. Farm Investment Company v. Carpenter, 9 Wyo. 110; Simmons v. Ramsbottom, 51 Wyo. 419; 67 C. J. 1053; § 89-3901, R. S. 1931; Cache La Poudre Reservoir Company v. Water Supply & Storage Co. (Colo.) 62 P. 420. A water right initiated by trespass is void. Bassett v. Swenson (Idaho) 5 P.2d 722; Wyoming Hereford Ranch v. Hammond Packing Company, 33 Wyo. 14.

For the defendant in error, Florence H. Sheean, there was a brief by H. B. Durham and C. M. Crowell of Casper, and oral argument by Mr. Crowell.

Defendant Sheean is the present owner of the SE 1/4 NE 1/4 of Section 12, Township 32, Range 81 West. The application for a permit to appropriate water for this tract was filed by Frank E. Hill, who thereafter transferred his interest to Mike Ryan, who for a long time had been the owner of said SE 1/4 NE 1/4 of Section 12, Township 32, Range 81 West. An applicant for permit for an appropriation of water need not be the owner, nor entitled to the possession of land to be irrigated. Plaintiff in error disputes this doctrine, but we believe it has the support of decisions of this court. Rutherford v. Canal Company, 12 Wyo. 299; Laughlin v. State Board of Control, 21 Wyo. 99; § 122-1502, R. S. 1931; 67 C. J. 972, § 415; 67 C. J. 995, § 429. The same rule obtains in Utah. Sowards v. Meagher (Utah) 108 P. 112; Gutierres v. Land & Irrigation Company, 188 U.S. 545, 47 L.Ed. 588. The doctrine is followed in the states of Washington, Montana and Oregon. In re Water Rights in Alpowa Creek (Wash.) 224 P. 29; Nevada Ditch Company v. Bennett (Ore.) 45 P. 482; In re Hood River (Ore.) 227 P. 1073; In re Deschutes River (Ore.) 286 P. 574; Seaward v. Pacific Livestock Company (Ore.) 88 P. 963; Bailey v. Tintinger (Mont.) 122 P. 575. It has been held that a trespasser may acquire water rights as against the owner of land. Patterson v. Ryan (Utah) 108 P. 1118; 2 Kinney, "Irrigation and Water Rights," 1187-1191. With one exception, every case cited by plaintiff involved objections made by landowner to the establishment of water rights by other persons. Avery v. Johnson (Wash.) 109 P. 1029; Bassett v. Swenson (Ida.) 5 P.2d 722. The record indicates that Hill was a licensee of Ryan. In Wyoming, applications for permits must be approved by the State Engineer. Wyoming Hereford Ranch v. Hammond Packing Company, 33 Wyo. 14, 35. Plaintiff states that there was a partial abandonment by defendant Sheean. Non-user is defined and circumscribed in Sec. 122-421, R. S. 1931. Plaintiff failed to establish abandonment by this defendant. The case of In re Aktanum Creek (Wash.) 245 P. 758, cited by plaintiff, is not in point. See contra--Arnold v. Raup (Colo.) 157 P. 206. Failure of water to reach the land of complainant, if permitted to flow, is a defense. Raymond v. Wimsette (Mont.) 31 P. 537; West Point Company v. Moroni Irrigation Ditch Co. (Utah) 61 P. 16. This rule should apply in the case at bar. The rule as to evidence on the subject is stated in Ramsey v. Gottsche, 51 Wyo. 516.

For the defendants in error, Nichols and Howlett, there was a brief by Greenwood and More of Cheyenne, and oral argument by Mr. Greenwood.

Neither ownership nor a possessory right is necessary to support an appropriation of water. Connelly v. Harrell (Mont.) 57 P.2d 781. Plaintiff's appropriation was later than defendants. An appropriation of water may be established without regard to the title of lands upon which to be used. Bassett v. Swenson, 5 P.2d 722; Toohey v. Campbell (Mont.) 60 P. 396; 67 C. J. 970, 984; In re Hood River, 227 P. 1065; In re Water Rights Deschutes River, 286 P. 563; Patterson v. Ryan (Utah) 108 P. 1118; In re Alpowa Creek, 224 P. 29; First Security Bank v. State, 291 P. 1064. Rutherford v. Canal & Power Company, 12 Wyo. 299, cited by plaintiff, in fact, sustains our position. See § 122-418, R. S. 1931. Plaintiff contends that a water right may be sold separately from the land to which it is appurtenant. We are unable to see wherein this question enters into this case at all. In Wyoming, a water right is appurtenant to the land for which appropriated. Chapter 122, R. S. 1931. It is presumed that individuals will act in accordance with self-interests, and assent to acts of third persons beneficial to them. 22 C. J. 109. There is no presumption against legality and one claiming illegality must prove it. 22 C. J. 147. A water right may not be sold separately from the land to which it is appurtenant. Plaintiff, after citing Wyoming cases to the effect that water rights may be sold separate from land to which appurtenant, fails to explain that subsequent to said decisions, the Wyoming Legislature enacted Chapter 97 of the Laws of Wyoming, on February 21, 1905, prohibiting such sale. Chapter 68, Laws 1909; § 122-401, R. S. 1931. In fact all of the authorities cited by plaintiff on the proposition that water rights may be sold separately from the land, for which appropriated, are readily distinguishable from the present case. Plaintiff further contends that failure to use water for more than five successive years constitutes an abandonment thereof. We respectfully submit that the contention is unsupported by the statutes or decided cases in this state. The rule is that abandonment can only be disclosed under Section 122-414, R. S., upon a clear showing of failure to use available water. Ramsay v. Gottsche, 51 Wyo. 516. The record in this case fails to show such a condition. Plaintiff is not in a position to object to the rights claimed by defendants, never having owned the lands belonging to defendants. Plaintiff's action is a collateral attack upon an appropriation confirmed by the Board of Control. The judgment of the trial court should be affirmed.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought by plaintiff on April 27, 1938, to declare the water rights of the defendants null and void. From a judgment for the defendants the plaintiff has taken his appeal. One Bryan was one of the defendants. He defaulted. His land is other than that of the other defendants, and it is not necessary to make further reference to him. The parties will be referred to as in the case below, or by name.

The creek involved in this case is Lumis or Madison Creek, which flows northerly through the SE/4NE/4 of Sec. 12, T. 32, R 81, owned by defendant Sheean, and the NE/4NE/4 of Sec. 12, same township and range, owned by defendants Nichols and Howlett, thence northerly into Section 1 of the same township and range, where part of the lands of the plaintiff are located, and whose lands accordingly are located below those of the defendants, and northwesterly thereof. The defendants Nichols and Howlett derive their title from one Nick Dickenson, who became the owner thereof on January 12, 1929, prior to the time of the initiation of the water rights directly to be mentioned, and who used the water here in controversy from 1929 to the time of his death in 1937. Their lands will hereinafter be referred to as the Dickenson land. The defendant Sheean derives her title to the SE/4NE/4 above mentioned through one Mike S. Ryan, who was the owner thereof from 1911 to 1933, the time of his death. The plaintiff has been the owner of the land for which he seeks the water here in controversy since 1933. The water rights which are claimed to be void were initiated by applications filed on August 17, 1929, by one Hill, a brother-in-law of Mike S. Ryan, with the State Engineer. These applications...

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20 cases
  • State of Nebraska v. State of Wyoming United States
    • United States
    • U.S. Supreme Court
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    ...and use under Wyoming law. That seems to be true under Wyoming law. Wyo.Rev.Stats. (1931) §§ 122-1601, 122-1602; Scherck v. Nichols, 55 Wyo. 4, 19, 95 P.2d 74. The decree which is entered will in no way cloud such claim as it has to storage water under Wyoming law; nor will the decree inter......
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    ...court has expressed a definition of abandonment of rights or property in the following cases: Phillips v. Hamilton, 17 Wyo. 41; Scherck v. Nichols, 55 Wyo. 4; v. Gottsche, 51 Wyo. 516; 46 C. J. 980, 981. Relators were lawfully appointed and confirmed as members of Wyoming Livestock and Sani......
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    ...be forbidden to act as volunteer for another in connection with the steps leading up to a perfected appropriation. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 79 (1939) (some citations omitted & emphasis added). The district court's decision as a matter of law to ignore the diligence demonst......
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    ...of the statute would allow appropriators to speculate with unused waters a policy never embraced by this court. See, Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 78. Such a construction would also render the statute meaningless and would be tantamount to a refusal to recognize the intent of t......
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3 books & journal articles
  • CHAPTER 10 MAINTAINING MINING PERMITS|GOVERNMENT AUTHORIZATIONS AND WATER RIGHTS
    • United States
    • FNREL - Special Institute Problems and Opportunities During Hard Times in the Minerals Industry (FNREL)
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    • FNREL - Journals The Purposeful Tension Within the Doctrine of Beneficial Use (FNREL)
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    ...370 (Wyo. 1980).[205] Wyo. Stat. Ann. § 41-3-402(a), (f).[206] Sturgeon v. Brooks, 281 P.2d 675, 683 (Wyo. 1955).[207] Scherck v. Nichols, 95 P.2d 74 (Wyo. 1939) (finding that where physical conditions, like low stream flow, that are beyond the appropriator's control and caused the nonuse, ......
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    • FNREL - Special Institute Water Law Institute 2021 (FNREL)
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    ...370 (Wyo. 1980).[205] Wyo. Stat. Ann. § 41-3-402(a), (f).[206] Sturgeon v. Brooks, 281 P.2d 675, 683 (Wyo. 1955).[207] Scherck v. Nichols, 95 P.2d 74 (Wyo. 1939) (finding that where physical conditions, like low stream flow, that are beyond the appropriator's control and caused the nonuse, ......

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