State ex rel. Mitchell Irrigation District v. Parshall

• Decision Date: 15 May 1914
• Docket Number: 739
• Citation: 140 P. 830,22 Wyo. 318
• Parties: STATE EX REL. MITCHELL IRRIGATION DISTRICT v. PARSHALL, STATE ENGINEER, ET AL., CONSTITUTING THE STATE BOARD OF CONTROL
• Court: Wyoming Supreme Court

140 P. 830

22 Wyo. 318

STATE EX REL. MITCHELL IRRIGATION DISTRICT v. PARSHALL, STATE ENGINEER, ET AL., CONSTITUTING THE STATE BOARD OF CONTROL

No. 739

Supreme Court of Wyoming

May 15, 1914

ORIGINAL proceeding in mandamus.

The petition was filed in the name of the State of Wyoming, on the relation of The Mitchell Irrigation District, a corporation, against A. J. Parshall, State Engineer; Frank S Knittle, Superintendent of Water Division No. One; C. W Stroud, Superintendent of Water Division No. Two; G. Ralph Hoover, Superintendent of Water Division No. Three, and C. E Howell, Superintendent of Water Division No. Four, constituting the Board of Control, praying for a writ of mandamus requiring said Board to pass upon the relator's proof and determine its priority to the use of waters of the North Platte River for irrigation purposes. An alternative writ was issued, and the cause was heard upon demurrer to the petition and alternative writ.

Demurrer to petition and writ overruled.

Clark & Clark, for relator.

The Board of Control is the only tribunal having jurisdiction to consider relator's rights, for the reason that the relator appeared in the proceeding before the board in the North Platte River Adjudication, which vested the board with exclusive jurisdiction to determine the rights of relator, even though the jurisdiction of the board and the courts may in the first instance have been concurrent. This contention is, however, broader than necessary in the case at bar, for the question is whether the board has jurisdiction either exclusive or concurrent over the subject matter. A preliminary question presents itself, viz: the jurisdiction of the Wyoming courts, in the absence of any statutory proceeding, to entertain a suit to quiet title to a water right where the diversion is in this State and the use is in another State. The only reason which can be suggested for denying such jurisdiction is that a water right for irrigation purposes is an appurtenance to land, and that the irrigated land in this case being outside the jurisdiction of a court in this State, it could not quiet title to a mere appurtenance to such land. But that objection is based entirely upon definition. It may be conceded that a water right for irrigation is appurtenant to the land irrigated, for certain purposes. (Frank v. Hicks, 4 Wyo. 502). It is also conceded that a court has no jurisdiction to quiet title to land lying without the State, and, ordinarily, there would be no jurisdiction to quiet title to an appurtenance to such land--not, however, because it is an appurtenance, but because it is ordinarily situated without the State. But should the appurtenance lie in one State and the land in another, the rule aforesaid as to jurisdiction can no longer apply, for the court of the first State then has physical control over the appurtenance, and having such control may effectively enforce a decree quieting title thereof. This is illustrated with respect to the canal here in question by the refusal of the court in Nebraska to adjudicate its right because of lack of jurisdiction. (Enterprise Irr. Dist. v. Tri-State Land Co., 138 N.W. 171). The precise question whether a court has jurisdiction to quiet title to an appurtenance in one State to land in another State does not seem to have been determined. But in no case where the western courts have considered the character of a suit to quiet title to water rights in connection with the question of jurisdiction is there any dicta denying the proposition that the court of the State wherein the appurtenance is situated has jurisdiction. (Taylor v. Hulett, 15 Ida. 265, 97 P. 37; Conant v. Irr. Co., 23 Utah 627, 66 P. 188; Rickey Land & Cattle Co. v. Miller & Lux, 152 F. 11; Willey v. Decker, 11 Wyo. 496). A suit or proceeding to adjudicate water rights is not considered by the courts as an action to quiet title to the land irrigated, but similar merely to such an action because the water right is appurtenant to the land and therefore real property. There is a distinction without a difference between a decree granting a party a certain appropriation and enjoining another party from interfering with it, and one declaring the party to be entitled to the right and quieting his title thereto as against the other party; in either case the effect of the decree is to bar the one party from questioning the validity of the other's right. (Rickey L. & C. Co. v. Miller & Lux, supra). Assuming upon the authority of the cases cited that, in the absence of a statutory proceeding, the Wyoming courts would have jurisdiction to quiet title to the appropriation of the relator, does the Board of Control have jurisdiction under the statute? The statutory proceeding before the board differs from a suit to quiet title in several important particulars. (See Farm Inv. Co. v. Carpenter, 9 Wyo. 110). Our irrigation code is based upon the fundamental principle of State control; and the object and purpose of the statutory proceeding is to furnish the requisite data to the water officials whereby they may effectively perform the duties of supervising and distributing the public waters to individual appropriators in accordance with their respective rights. The effect of the adjudication in determining the different rights as between the respective appropriators is merely incidental. Has the board jurisdiction to consider and adjudicate a claim of appropriation under a ditch diverting water in Wyoming for use in Nebraska? The statute contains nothing restricting the jurisdiction of the board, but the provisions are general and all-inclusive. The board's jurisdiction is expressly extended to all claims to the use of the public waters in Wyoming, irrespective of the time the right was acquired, the character of use, or the place of use. If the board has no jurisdiction upon the facts in this case, therefore, it must be for the reason that the relator's appropriation presents a peculiar feature which would make a determination by the board so abortive or improper as to compel a declaration that it was not intended by the Legislature to extend the board's jurisdiction to such an appropriation as that of the relator. But we believe such a situation is not presented by the facts. The purpose of the statutory proceeding being to render it possible for an effective supervision and distribution of the public waters by administrative officers, it is just as important that such officers have authority over diversion by interstate ditches as over a diversion by a ditch located entirely within the State. There are diversions in Wyoming below the relator's canal, which also irrigate land in Nebraska, and it will be necessary for a regulation of its headgates by the Water Commissioner, which regulation cannot occur until the water right has been adjudicated. (Ryan v. Tutty, 13 Wyo. 122; Hamp v. State, 19 Wyo. 377). If the board has no jurisdiction to adjudicate the rights under ditches of this class, we will have the unsatisfactory situation of a decree covering all the diversions from the North Platte River in this State excepting two; and the water officials would be authorized to regulate the flow of water into every ditch excepting those two, the regulation of which, because of their size, would be more important to the other appropriators from the river than the regulation of any other ditch. Thus we contend that the Legislature has complete control over the diversions of the two ditches referred to. (Bean v. Morris, 221 U.S. 485). Having power over the diversion of water by an interstate ditch, and the exercise of that power being of the utmost importance if State control is to be effective, and the statutory adjudication of water rights being intended for the benefit of State control, it must be assumed that the Legislature intended to include interstate ditches within the jurisdiction of the board. The reasoning in the Colorado case of Lamson v. Vailes, 27 Colo. 201, relied upon by the defendant, we believe unsatisfactory and illogical. The fact of diversion is the salient feature of an appropriation of water with respect to the question of jurisdiction. (Turley v. Furman, 114 P. 279). It will hardly be contended that the State does not have as complete control through its police power over a diversion of its waters by an interstate ditch as by a diversion by any other ditch. Jurisdiction is necessary over all diversions included within the right to make an appropriation of water for beneficial use. (See Stockman v. Leddy, 129 P. 220). The relator having invoked the jurisdiction of the board by filing its proof of appropriation, it has the right to insist upon a determination of the matter by the board.

D. A. Preston, Attorney General, for defendants.

The State Board of Control is a creature of statute and its duties are specifically set forth therein. Water may only be appropriated for beneficial use. The board having the right of general supervision, it follows that the use of water must be under its control. Otherwise it would be impossible for an enforcement of the laws regulating the appropriation supervision and diversion of the public waters. It is made the duty of the board not only to fix the amount and manner of the diversion of the water, but to regulate its use. How can the board regulate the use of water beyond the boundaries of the State? Even after adjudication the water must be used in accordance with the rules of the Board of Control. (Claypool v. O'Neil, (Ore.) 133 P. 349). If the duties of the board ended with the diversion of the water, the relator might be in a position to maintain mandamus. But the greater part of the function of the board is the regulation of the use of the water. It cannot enforce its rules and decrees in...