Shedd Ditch Company v. Peterson

• Decision Date: 12 April 1910
• Docket Number: 600
• Parties: SHEDD DITCH COMPANY ET AL. v. PETERSON
• Court: Wyoming Supreme Court

108 P. 72

18 Wyo. 402

SHEDD DITCH COMPANY ET AL. v. PETERSON

No. 600

Supreme Court of Wyoming

April 12, 1910

ERROR to the District Court, Fremont County; HON. CHARLES E CARPENTER, Judge.

Affirmed.

W. E Hardin, P. B. Coolidge, and Clark, Riner & Clark, for plaintiffs in error.

Whenever ditches or other structures for diverting water belong to two or more proprietors, such owners are, in the absence of special agreement to the contrary, tenants in common of the ditch and their proprietary rights are governed by the rules of law governing tenancies in common. (Kinney on Irr., Sec 301; Long on Irr., Sec. 775; Black's Pomeroy, Sec. 107; Bradley v. Harkness, 26 Cal. 69; Moss v Rose, 41 P. 667; Beers v. Sharpe, 75 P. 717; Cache La Poudre Co. v. Irr. Co., 53 P. 318; Hall v. Blackman, 68 P. 19.) Courts of equity adapt their special remedies to special and new conditions of facts. (Black's Pomeroy, 333.) Abandonment is not complete until another relocation, so that a resumption of use may be made at any time before others intervene, though not afterwards. (Beaver &c Co. v. St. Vrain &c Co., (Colo.) 40 P. 1066; Tucker v. Jones, 19 P. 571; Rutherford v. Lucerne &c Co., 12 Wyo. 229.) When, for the purpose of using another's ditch, it becomes necessary to enlarge or improve the ditch, and it is done with the consent or permission of the owner, the person so enlarging or improving the ditch acquires thereby a vested right to its use, which cannot be revoked or denied by the owner. (Long on Irr., Sec. 44; Chicosa Irr. Co. v. Ditch Co., (Colo.) 50 P. 731; Lehi Irr. Co. v. Moyle, 4 Utah 427, 9 P. 867.) Where a person knowingly claims and receives the additional amount of water which an enlarged ditch carries to his land, he thereby assents to and ratifies the improvement of the ditch. (Arroyo D. & W. Co. v. Bequette, 87 P. 12.)

Instead of fixing and defining the rights and interests of the parties in the enlarged ditch in this case, and determining the proportion of the expense which defendant in error should bear in maintaining the same (which was the only real point of contention between the parties), and thereby protecting and preserving the rights of all the parties and injuring no one, a decree was rendered which, in law and in fact, wipes out the valuable ditch and water rights of all the plaintiffs in error, renders their ranches valueless and useless, and, instead of benefiting the defendant in error, throws the entire burden of maintaining the ditch upon him. The decree is contrary to the evidence and the law and contrary to equity and good conscience. The court was evidently confused by the great amount of irrelevant and unimportant testimony concerning the alleged abandonment of the original ditch by the plaintiffs in error, and disregarded the real issues, viz: the legal rights and obligations of the parties under the enlargement, as defined and determined by statute, judicial decisions, the terms of the permit and the decrees of the Board of Control. The prayer for the enlargement was granted in 1901. It has never been altered or modified. It stands as a joint permit to defendant in error and plaintiffs in error to enlarge the ditch. The defendant in error has accepted the benefits thereof, and cannot now be heard to say that the enlargement is good as to himself but illegal and void as to plaintiffs in error.

Stone, Winslow & Gudmundsen, and Kinkead & Mentzer, for defendant in error.

A joint assignment of error not good as to all will be held not good as to any who join in it. (Greenawalt v. Impr. Co., 16 Wyo. 226.) The motion for a new trial was a joint motion of all the plaintiffs in error, and their petition in error in this court is a joint petition or assignment of error. The various interests of the plaintiffs in error are several and not joint; they own their lands in severalty, and claim their ditch rights from various sources. As to certain of the plaintiffs in error there is no showing of any interest, and as to them there is clearly no error in the judgment or record. The plaintiff in error, Gillis, was not a party to the enlargement of the Shedd ditch, and any right he might have would depend entirely upon the original construction of the ditch. The evidence clearly shows a non-user of the ditch and water for a period beyond the statutory period for forfeiture, and as to Gillis, therefore, there is no error in the judgment. The same applies to other plaintiffs in error. As to the remaining plaintiffs in error there is involved but one disputed fact, and that is, as to whether or not they had the consent of the defendant in error, Peterson, to make the enlargement of the ditch. But we submit that as to the parties named there is no error in the record, and the joint assignment of error must be overruled, resulting in an affirmance of the judgment.

At the time of the original construction of the ditch an absolute ownership of the right of way was obtained superior to the right and title of those who later filed upon and obtained the government title to the land. (U. S. Rev. Stat., Secs 2339 and 2340.) It is clear upon the record that the ditch has been continuously used by the defendant in error and his grantor from the time of its construction down to the point marked "A" on Exhibit B. By non-usage of the water and ditch beyond the point marked "A" the original interests of the other parties has been abandoned under the terms of the statute, so that the defendant in error has become the absolute owner of the entire ditch. An appropriation of water consists in a diversion thereof and its application to some beneficial use. (Moyer v. Preston, 6 Wyo. 308; Farm Inv. Co. v. Carpenter, 9 Wyo. 110.) Whatever the intention of the parties in 1886, they failed to apply the water to beneficial use and so failed to perfect their right, if any, then initiated. (Rev. Stat. 1899, Sec. 895; Smith v. Hawkins, 110 Cal. 122; Weil on Water Rights, (2nd Ed) 369; Burnham v. Freeman, (Colo.) 19 P. 761; McPhail v. Forney, 4 Wyo. 556.) The mere issuance of a permit by the State Engineer to divert an additional amount of water through an established ditch conveys no right of ownership or interest in the ditch. The office of the Engineer is to supervise and control the appropriation and use of the public waters, and he has nothing whatever to do with the ownership of ditches, or rights of way therefor, or the enlargement of such as have been constructed. It is the present rule, however, of that office that an applicant for a permit to enlarge an existing ditch must show the written consent of the owner of the ditch before a water permit for the enlargement will be granted. When the alleged permit in this case was granted no such consent was required, and none was given; and there has been no effort in this case to show a written consent. Testimony was introduced to show a verbal consent, but nothing was shown beyond mere conclusions, and "general understandings." The parties knew that they did not have Peterson's consent before they went to work. There was no joint agreement and no joint action. Peterson acted independently in the work he did. The situation is this: Peterson owns the ditch and has a means and method for diverting and carrying the water through the same. The other applicants are without a ditch or means of conveyance, and they have been unable to establish any right or interest in the Shedd ditch. And the mere fact that they...