Snake River Land Co. v. Utah-Idaho Sugar Company

• Decision Date: 05 January 1942
• Docket Number: 2208
• Citation: 120 P.2d 601,57 Wyo. 425
• Parties: SNAKE RIVER LAND CO. ET AL. v. UTAH-IDAHO SUGAR COMPANY
• Court: Wyoming Supreme Court

120 P.2d 601

57 Wyo. 425

SNAKE RIVER LAND CO. ET AL. v. UTAH-IDAHO SUGAR COMPANY

No. 2208

Supreme Court of Wyoming

January 5, 1942

APPEAL from the District Court, Teton County; H. R. CHRISTMAS Judge.

Proceeding in the matter of the appeal of the Utah-Idaho Sugar Company from the action of the State Engineer in the endorsements placed upon applications for amendment of Permits Nos. 3770 Res. and 3771 Res. and applications for secondary permits from Two Ocean and Emma Matilda Reservoirs (Applications Nos 13 1-2-3-4/357 and 14 3/138). From a judgment of the District Court which "confirmed" a decision of the State Board of Control, which theretofore on appeal from orders made by him, sustained the action of the state engineer regarding proposed amendment of several reservoir permits the Utah-Idaho Sugar Company, applicant, appeals by direct appeal, opposed by the Snake River Land Company, protestant and the State Board of Control.

Affirmed.

For the appellant there was a brief by John U. Loomis of Cheyenne, Wyoming, Ashby D. Boyle of Salt Lake City, Utah, and Otto E McCutcheon of Idaho Falls, Idaho, and oral argument of Mr. Loomis.

The judgment of the District Court is not sustained by sufficient evidence, is contrary to law, and each of the applications here involved should have been granted. Appellant is entitled to an amendment of Permits Nos. 3770-R and 3771-R, reducing the reservoir capacities thereof, and to permission to use the water thereunder in Idaho under the applications for secondary permits, and the request for special permits, relinquishing any rights it may have in addition thereto. The record shows that Permit No. 3487-R for Two Ocean Reservoir and Permit No. 3561-R for Emma Maltida or Markham Reservoir have both ripened into adjudicated storage rights. Stored water may be sold, leased, transferred and used in such manner and upon such lands as the owner may desire, provided it is used for beneficial purposes. Sec. 122-1602, W. R. S. 1931. The record shows that as a practical matter the water involved in the applications now before the court could not be used in Wyoming, and that it has for several years actually been applied to beneficial use in Idaho. The contention of the protestant that it purchased lands and water rights without knowledge of the appellant's claims is without merit. The existence or non-existence of an executive order of withdrawal or a special permit from the Forest Service has no bearing upon the matters involved here at this time. The question whether storage rights under existing certificates of appropriation have been limited to use on any particular lands is not material at this time. Whether the number of acre feet adjudicated under certificates of appropriation has the effect of excluding the appellant from participation under such appropriations is likewise immaterial. Permits Nos. 3770-R and 3771-R have not been terminated or voided. Appellant is entitled to the amendments sought by reason of its purchase of these water rights, under the circumstances involved, and the use of the waters thereunder. Appellant has formal transfers of all of the rights of Osgood Land and Live Stock Company herein involved. Granting of the applications will not tend to defeat the purpose of the Snake River Land Company to preserve the scenic features and beauty of Two Ocean and Emma Matilda Lakes. The decision of the State Engineer is erroneous and is not justified by the evidence. Doubts with respect to forfeitures of water rights should be resolved in favor of the water user. Van Tassell v. Cheyenne, 49 Wyo. 333; Ramsay v. Gottsche, 51 Wyo. 516; Horse Creek District v. Lincoln Land Co., 54 Wyo. 320; Campbell v. Wyoming Development Co. , 55 Wyo. 347. The decision of the Board of Control is based upon the ground that the State Engineer and the State Board of Control are prohibited from granting the applications under Chapter 125, Session Laws of Wyoming, 1939, and this conclusion is erroneous. The Act of 1939 is an attempt to seize powers which the Constitution has placed in the Board of Control. There is nothing in this contention inconsistent with the holding in Simmons v. Ramsbottom, 51 Wyo. 419. The stored water involved has been appropriated and applied to beneficial use in accordance with established principles and procedure. Since these storage rights have been acquired by appropriation and application to beneficial use under the laws of Wyoming, and the water cannot be used in Wyoming, but is beneficially used in Idaho, the rights of the applicant cannot be denied without violating the Wyoming and Federal Constitutions. Bean v. Morris, 221 U.S. 485; Weiland v. Pioneer Irrigation Co., 259 U.S. 498, 502. The statutes of Wyoming permit broad rights in the storage and disposition of stored water. Scherck v. Nichols, 55 Wyo. 4, 19. The denial of appellant's application under the circumstances shown by the record constitutes a denial of due process of law, and denies to appellant the equal protection of the laws in violation of the Constitution of the United States and the Constitution of the State of Wyoming.

For the respondent, there was a brief by Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Kerr.

The record shows that under date of September 14, 1921, Permits Nos. 3770 Res. and 3771 Res. for the enlargement of Two Ocean and Emma Matilda Lakes were conditionally granted by the State Engineer. On February 5, 1921, Osgood Land and Livestock Company became the holder of these permits by assignment, and they were subsequently assigned to the appellant, Utah-Idaho Sugar Company. On May 2, 1921, a written agreement was entered into by Frank C. Emerson, State Engineer, and Osgood Land and Livestock Company, the substance of which was that said permits were conditioned upon the granting of rights-of-way by the United States General Land Office, for the construction of said reservoirs and supply ditches, and said permits would be of no effect unless such rights-of-way were granted. Said rights-of-way were refused by the Department of the Interior on May 14, 1923. It then became the duty of Osgood Land and Livestock Company to surrender said permits for cancellation. The State Engineer was therefore justified in taking the action which he did under date of December 3, 1938. Prescriptive rights to water cannot be acquired under the laws of Wyoming. Campbell v. Wyoming Development Co. (Wyo.) 100 P.2d 124, rehearing denied 102 P.2d 745. Appellant has never acquired a lawful permit. Wyoming Hereford Ranch v. Hammond Packing Company, 33 Wyo. 14. Courts are loathe and reticent to interfere with decisions of administrative boards, unless clearly erroneous. State ex rel. Marsh v. Board of Land Commissioners, 7 Wyo. 478; Miller v. Hurley, 37 Wyo. 344. It is submitted that the decision of the trial court affirming the decision of the State Board of Control should be affirmed.

For the protestant and respondent, there was a brief by Fabian, Clendenin, Moffat & Mabey of Salt Lake City, Utah, and Arthur Kline of Cheyenne, Wyoming, and oral argument by Mr. Moffat.

The permits here involved were conditioned upon obtaining the right from the General Land Office to store water upon the public domain and transport it over the public domain. The application was denied by the Government, and on appeal was upheld. Therefore all rights under the permits ceased. Because these permits are still on file uncancelled, it is now sought to distort them out of all resemblance to their original purpose and give them new life by acts of trespass upon the public domain, justification for which is sought in the contention that the water can be beneficially used on the Osgood lands. There is no law which justifies a trespass or a conversion because waters can be beneficially used. The thirteen points urged by appellant in its brief are without merit and it is submitted that the case of Scherck v. Nichols is not applicable in this matter.

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

OPINION

RINER, Chief Justice.

This cause is before the court by direct appeal from a judgment of the district court of Teton County, which "confirmed" a decision of the State Board of Control, which theretofore, on appeal from certain orders, made by him, sustained the action of the State Engineer of this State regarding the proposed amendment of several reservoir permits, and as to other matters pending before him. The Utah-Idaho Sugar Company was the applicant for the amendment of these permits and the appealing party throughout this litigation. The Snake River Land Company filed a protest before the State Engineer against the applications of the Utah-Idaho Sugar Company and is designated as the "protestant and respondent". The State Board of Control is also named herein as a respondent.

For convenience and brevity the Utah-Idaho Sugar Company, which is a Utah corporation authorized to transact business in Idaho and Wyoming and certain other states, will subsequently be mentioned as the "appellant" or the "Utah Company"; the respondent, the State Board of Control, will usually be herein referred to as the "Board"; and the Snake River Land Company, also a Utah corporation with authority to do business in the State of Wyoming, will be designated as the "Land Company".

Subject to the condition of the record on the instant appeal, which will hereinafter be discussed, the facts which we deem material to be borne in mind so far as the merits of this proceeding are concerned, would appear to be these:

There are, or rather, were, for one of them has ceased to exist two corporations, each bearing the name "Osgood Land &...