State v. Hiber

• Court: Wyoming Supreme Court
• Writing for the Court: BLUME, Justice.
• Citation: State v. Hiber, 48 Wyo. 172, 44 P.2d 1005 (Wyo. 1935)
• Decision Date: 08 May 1935
• Docket Number: 1865
• Parties: STATE v. HIBER, ET AL

44 P.2d 1005

48 Wyo. 172

STATE v. HIBER, ET AL

No. 1865

Supreme Court of Wyoming

May 8, 1935

APPEAL from the District Court, Johnson County; HARRY P. ILSLEY Judge.

Action by the State of Wyoming against Frank Hiber and others. From a judgment for named defendant, plaintiff appeals.

Affirmed.

For the appellant, there was a brief by Ray E. Lee, Attorney General O. O. Natwick, Deputy Attorney General, and Wm. C. Snow Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Snow.

The Hiber dam is an illegal structure and respondent had no right to the water of Adamson Draw without first having obtained a permit. Article 8, Section 5, Constitution; W. R. S., Sec. 122-1401. The dam is subject to abatement as a public nuisance. Big Horn Power Company v. State, 23 Wyo. 271. It is more than ten feet in height and no plan for its construction was ever submitted to the State Engineer. The following constitutional provisions are applicable. Article 1, Section 21 and Article 8, Section 5. The authorities hold that a continuous flow is not required and that a periodical flow with some degree of regularity is sufficient to constitute a natural stream or water course. Kinney on Irrigation, 312; Farnham on Waters, Sec. 1559, Vol. 2; Borman v. Blackman, (Ore.) 118 P. 848; Hoefs v. Short, (Texas) 40 A. L. R. 833; R. R. Co. v. Dotson, 38 P. 322; Los Angeles Association v. Los Angeles, (Calif.) 37 P. 375; Barnes v. Sabron, 10 Nev. 217; Lux v. Haggin, 10 Cal. 674; Angell on Watercourses, Sec. 4. Test of a natural water course is whether there is enough water flowing at yearly periods for its application to a beneficial use. See authorities above cited. The principle of estoppel applies in this case. See 2 Farnham on Waters, 1564; Mal v. Ohio River Co., (W. Va.) 34 S.E. 914. This court has defined the term "appropriation." Farm Investment Company v. Carpenter, 9 Wyo. 110; see also U. S. v. Ditch Company, 2 F.Supp. 867. The State Engineer has control over dams more than ten feet vertical height. 4 Kinney 3267. It clearly appears from the evidence that there is enough water in Adamson Draw periodically to apply those waters to beneficial use. We contend that the rule in Hoefs v. Short, 40 A. L. R. 833, should be followed.

For the respondents there was a brief by Alvin T. Clark and Burt Griggs, of Buffalo, and oral argument by Mr. Griggs.

The Hiber dam is not an illegal structure. W. R. S. 1931, 122-1401. It is merely a storage basin for surface water which falls upon the Hiber land during excessive rains or snows; it has no banks or channel, or other source of supply. The draw itself is not a natural stream or water course. Kinney Irrigation, Section 312; Borman v. Blackman, (Ore.) 118 P. 848; Los Angeles Ass'n. v. Los Angeles, (Cal.) 37 P. 375. The case of Denver T. & F. W. R. Co. v. Dotson, 20 Colo. 304, 38 P. 322, does not appear to be in point. The case of Simmons v. Winter, (Ore.) 27 P. 7, holds that a water course must be a living stream with defined banks and channels, fed from other permanent sources than mere surface water. The case of Popham v. Holloron, 275 P. 1099, was decided on a special statute relating to flood and seepage waters. Percolating waters developed artificially by excavation belong to the owner of the land. Hunt v. City of Laramie, 26 Wyo. 160. Seepage waters of a ravine are not subject to appropriation. Ide v. U.S. 263 U.S. 497. To the same effect is Riggs Oil Company v. Gray, (Wyo.) 30 (2d) P. 145. The Hiber reservoir should not be destroyed because its destruction will do no one any good. It is in fact a pond made for the purpose of watering livestock and not for irrigation. The decision of the trial court should be sustained and the appeal dismissed.

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

OPINION

BLUME, Justice.

This action was brought by the State to prevent the defendants from impounding water on certain lands in Johnson County, Wyoming. All of the defendants except Frank Hiber filed a disclaimer of interest and Frank Hiber will hereinafter be generally referred to as the defendant. The petition alleges that the defendant owns the SE 1/4 of Section 27, T. 46 N., R. 79; that one T. H. Adamson is the owner of the SW 1/4 of Section 35 in the same township and range; that Adamson Draw runs through the land of the defendant and of T. H. Adamson in a northwesterly and southeasterly direction; that Adamson Draw is a natural stream, and T. H. Adamson received a permit from the State Engineer of Wyoming to construct on his land, by damming the draw, a reservoir and to thereby impound the waters running therein; that Adamson has partially constructed such reservoir; that the defendant, however, has constructed a reservoir on his lands (about a mile above that of Adamson) for the purpose of impounding the waters of the draw; that he has no permit whatever from the State Engineer to do so; that his dam is approximately 200 feet in length, with a maximum height of thirteen feet; that it "is an unlawful and illegal construction by which waters belonging to the State of Wyoming are collected and stored and used * * * without lawful right, license or permit thereto and that said structure should be abated and defendants * * * restrained and enjoined from collecting the water flowing through said Adamson Draw in its natural state and from interfering with the natural flow of said Adamson Draw." Plaintiff's prayer is as follows:

"Wherefore plaintiff prays that the defendants and each of them be enjoined from using said dam for the purpose of collecting the water flowing in said Adamson Draw in its natural state or otherwise unlawfully interfering with the natural flow of said Adamson Draw and for such other and further relief in the premises as to the court may seem just and proper."

The defendant Hiber set up various defenses. He admits that he is the owner of the land as mentioned in plaintiff's petition and of other lands in Section 27 in the same township and range; that the Adamson Draw runs through his land; that it is a swale and depression collecting water from melting snows and excessive rains; that it is ordinarily entirely dry, without any source of water supply whatever; and that it is not now and never has been a natural stream; that it has no natural banks or channel; that the soil along the draw above the reservoir constructed by T. H. Adamson is extremely porous and gravelly and that even if he, the defendant, did not impound the water sometimes running in Adamson Draw, it would never reach the reservoir constructed by Adamson; that the water impounded by him is necessary for watering live stock, and that it is the custom of the country to construct reservoirs such as his without any permit from the State Engineer of the State. The State in its reply denied all affirmative allegations. It was stipulated and agreed that the defendant has no permit from the State of Wyoming to construct any reservoir upon his land, and it was shown that T. H. Adamson has a permit to construct one upon his land. It was issued on March 29, 1930. A reservoir was partially constructed soon thereafter. It is situated about a mile southeasterly from that constructed by Hiber. Adamson's reservoir was constructed first.

We deem it best to give a summary of the evidence bearing on the question as to whether or not Adamson Draw referred to in the pleadings is a natural stream. The testimony in brief is about as follows:

That of the witness Morrow for the State discloses: "Q. Is this a deep ravine or is it shallow, where the water flows? A. It is a well defined drainage. Q. That is, there is a course marked on the ground where that has been worn by the water? A. Oh yes, it is a draw, possibly fifteen to twenty feet lower than the surrounding country. * * * There is no creek bed, or anything of the kind. It is grassed over. Q. Do you know whether Adamson Draw has any permanent source of water supply? A. I don't know whether it has or not, but I don't believe it has. * * * Came from snow and rain." The witness Adamson, the same person who had a permit from the State to build a reservoir on his land, stated as follows: "Q. Will you explain the flow of water in Adamson Draw? A. I can't tell you what the flow is. * * * I believe the most water comes when the snow is melting in the spring. There is a well defined water course. The land slopes generally to this draw for 80 rods to half a mile either side of it. The highest elevation is possibly 200-300 feet above the water course as it narrows down to this stream. I would say the stream bed was about 15 to 20 feet wide and in places three or four or five feet deep. There is a well defined channel above the Hiber dam * * * I saw a flowing stream in the draw last May. When the snow melted; the water came from the snow. Do not know how long it ran. There is no permanent source of water supply in this draw." The witness Eder stated that "there is a decidedly natural water course at Adamson Draw," but testified to no details. The testimony on behalf of defendant is substantially as follows: The witness Bradley, a mail carrier since the summer of 1930, and constantly carrying mail since that time, stated that the mail route crosses Adamson Draw about one-half mile above the Adamson reservoir that the draw is "just a swale"; there is no culvert or box to carry off the water; he had crossed it 300 times and constantly; he had never seen any flowing water in it, and there is no stream in it; the bottom is well grassed; there are no well defined banks nor is there a creek channel; it is just a small water drainage for rain water, and snow water. The witness Glenn Mocabee, a neighbor of the defendant, has lived there five or six years. He described the draw as a ...