Simmons v. Ramsbottom

• Decision Date: 18 May 1937
• Docket Number: 2005
• Citation: 68 P.2d 153,51 Wyo. 419
• Parties: SIMMONS v. RAMSBOTTOM
• Court: Wyoming Supreme Court

68 P.2d 153

51 Wyo. 419

SIMMONS v. RAMSBOTTOM

No. 2005

Supreme Court of Wyoming

May 18, 1937

APPEAL from the District Court, Johnson County; JAMES H. BURGESS Judge.

Action by Edward S. Simmons against Wallace Ramsbottom. From a judgment for plaintiff, defendant appeals.

Affirmed.

For the appellant there was a brief and an oral argument by Alvin T Clark and Burt Griggs of Buffalo.

The general supervision of the waters of the State is placed in the hands of the State Board of Control, subject to review by the courts. Constitution, Article VIII, Sec. 2. A definite procedure has been prescribed for the adjudication of streams. Article 1, Chapter 122, W. R. S. 1931. It also provides a method of appeal from decisions of the board. Secs. 122-119-120. Other statutes provide for an appeal and rehearing. Sec. 122-123, R. S. 1931. In this section, it is provided that proceedings on appeal from the board shall be conducted according to the civil code of procedure, and the practice of appeals from the district courts of the State to the Supreme Court. Sec. 122-122, R. S., requires appellant to file a certified copy of the evidence taken by the Board of Control. The scheme indicates that original jurisdiction is lodged in the Board of Control, the district court acting as an appellate tribunal only. Investment Company v Carpenter, (Wyo.) 61 P. 258. In this case the court found that the relative priorities on Worth Creek and the South Fork of Crazy Woman Creek were not fixed, and that the board did not determine that the rights on one stream were superior to those on another, concluding, therefore, that it became a question of fact as to which of these appropriations are superior, which under the authority of Irrigation Company v. Grant, 44 Wyo. 392, the district court had authority to determine, but that case is distinguishable from the present controversy. In the Laramie River case, there were two adjudications made at different times. The appropriators from the Little Laramie River were not parties to the adjudication of waters from the Big Laramie River. The district court held that the water commissioner had no authority to act as between the appropriators from the respective streams, unless a binding adjudication as between them should be made. This court held on appeal that the board's adjudication was prima facie evidence of correctness, even as to those not parties to the proceedings. The only question involved was as to the duty of the water commissioner to observe and be guided by priority dates. This case differs from the Farm Investment Company case, in that the claimant participated in the adjudication proceedings before the Board of Control. The facts in the case of Ryan v. Tutty, 13 Wyo. 122, differ from the present suit. The relative priorities were not determined in the Ryan case. The case of Willey v. Decker, (Wyo.) 73 P. 210, did not adjudicate water priorities. The case of Parshall v. Cowper, 22 Wyo. 385, approves the principle that the adjudication of streams is a function of the Board of Control, subject to review by the courts. We believe that the case of Nichols v. Hufford, 21 Wyo. 477, states the principle that should control the present case. Defendant's third defense is based upon the statute of limitations. We submit that this defense is good and the petition should be dismissed, for this reason if for none other. We have assumed that Section 89-406 is the governing statute in this case, although there is some question but what it comes under Section 89-411, fixing the limitation at four years instead of ten, following the accrual of the action. 37 C. J. 810; 17 R. C. L. 789; Nebola v. Iron Company, 112 N.W. 880. The decree of the district court should be reversed: (1) Because the district court does not have original jurisdiction to determine the relative priorities of the parties to the waters in question, but only to review the orders of the Board of Control. (2) The district court cannot in a collateral proceeding modify or enlarge an order of the Board of Control made in an adjudication proceeding. (3) If it be assumed that the relative priorities of the parties were not fixed by the board, plaintiff's remedy is by a direct suit and not by collateral attack. (4) Plaintiffs action was not commenced within ten years after his alleged cause of action arose.

For the respondent, there was a brief and oral argument by H. Glenn Kinsley of Sheridan.

The decree of the trial court did not alter the order of the Board of Control of April 13, 1917, but merely interpreted the board's decree. There can be no collateral attack unless there has been an adjudication. Padlock Ranch Inc. v. Washakie Needles Irrigation District, 61 P.2d 410; Willis v. Willis, (Wyo.) 48 Wyo. 403. The board did not determine that the priorities on South Fork of Crazy Woman Creek were superior either to those on Worth Creek, Steele Creek or Beaver Creek, which appear later in the tabulation. The order fixed the priorities of each stream, but the order of priority applies only to the particular stream in each case. The trial court found that there had been no adjudication by the board as to the priorities of rights between appropriators on the several streams. The court was governed by the case of Company v. Grant, 44 Wyo. 392, wherein it was held that the water commissioner was bound to divide the waters of the streams according to the priority rights of the respective parties. After the decision in the case of Farm Invest. Company v. Carpenter, supra, Section 122-136 was enacted. It is in the nature of a statute of limitations, in applying rules of construction generally approved by the courts as to the effect of the decree of the Board of Control with respect to priorities here in controversy. The date of "Feb. 1884" must be a prior date to the date of "1884." In any event, the defendant's contention that the date "1884" is prior to the date of "February 1884" cannot be maintained, there being nothing whatever to base such contention on. 1 Story Const. U. S. 383; 12 C. J. 1301. If there was no adjudication made by the board, then the district court had jurisdiction to adjudicate the rights of the parties to this action. Investment Company v. Carpenter, supra; Wyoming Ranch v. Company, (Wyo.) 236 P. 764; Power Company v. Grant, 44 Wyo. 392. As to the necessity of joining the water commissioner in this action, the matter was settled in the case of Ryan v. Tutty, 13 Wyo. 122. It is a general rule that an appeal will lie only from a decision made by a tribunal vested with judicial authority and acting in a judicial capacity when making such decision. 3 C. J. 372; 2 R. C. L. 27, 30. The action was not barred by limitations. Plaintiff's rights were not invaded until 1935. Plaintiff and his predecessors had used the water covered by the appropriations in question for a period of more than fifty years. Defendant failed to plead the statute of limitations. United States Fidelity and Guaranty Co. v. Parker, 20 Wyo. 29.

BLUME, Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Justice.

This is an action to have the court declare the rights of plaintiff to certain water rights to be superior to the rights of defendant; to quiet the title of plaintiff therein and for injunctive relief. Plaintiff Simmons claims the prior right as against the defendant, Wallace Ramsbottom, to all of the waters of Worth Creek, a tributary of the south fork of Crazy Woman Creek, by appropriations made through the Mountain, Worth, and Simmons No. 2 ditches. The defendant has appropriations out of the south fork of Crazy Woman Creek through the Silver Thread, the Rambler, Simmons No. 5, Curlew, Mayflower and Close Call ditches. The appropriations of defendant through the Silver Thread ditch and through the Rambler ditch have no bearing in this case, inasmuch as their intakes are above the junction of Worth Creek and the south fork of Crazy Woman Creek, but defendant claims a prior right to the waters of Worth Creek by reason of his appropriations through his other ditches. The appropriations through them are below the point of junction of Worth Creek and the south fork of Crazy Woman Creek. The lands of the plaintiff are situated in Sections 26 and 27, T. 46 N., R. 83 W., 6th P. M. The lands of the defendant are located in Sections 23, 24, 25 and 30 of the same township and range. The following map shows more clearly the physical situation of the creeks and the various ditches:

[SEE ILLUSTRATION IN ORIGINAL]

On April 13, 1917, the State Board of Control of this state undertook to adjudicate the rights to the use of the waters of the south fork of Crazy Woman Creek and its tributaries. The adjudication is contained in Certificate No. 38, and the names of the creeks, ditches, appropriators and the date of the appropriations are given in the order named, and in so far as material here, are as follows:

South Fork Crazy Woman Creek

Name of

Date of

Name of Ditch

Appropriator

Appropriation

Mayflower

Wallace Ramsbottom

1884

Silver Thread

Wallace Ramsbottom

1884

Rambler

Wallace Ramsbottom

1884

Curlew

Wallace Ramsbottom

1884

Simmons No. 5

Wallace Ramsbottom

1884

Close Call

E. H. Simmons

1884

Worth Creek, Tributary South Fork Crazy

Woman Creek

Mountain

Edward S. Simmons

Feb. 1884

Worth

Edward S. Simmons

Feb. 1884

Simmons No. 2

Edward S. Simmons

Feb. 1884

Steele Creek, Tributary South Fork Crazy

Woman Creek

Steele Creek

John S. McWilliams

Fall, 1883

And the certificate, among other things, recites:

"That the priority of the several rights on the various streams as set forth in the above table shall be in the order named."

Under the order of the board, as shown by this certificate, there was adjudicated to the plaintiff, through...