Sturgeon v. Brooks

• Decision Date: 28 March 1955
• Docket Number: No. 2653,2653
• Citation: 73 Wyo. 436,281 P.2d 675
• Parties: William Sidney STURGEON and Violet Sturgeon, Plaintiffs and Appellants, v. A. B. BROOKS and Fern Brooks, Defendants and Respondents.
• Court: Wyoming Supreme Court

Page 675

281 P.2d 675

73 Wyo. 436

William Sidney STURGEON and Violet Sturgeon, Plaintiffs and Appellants, v. A. B. BROOKS and Fern Brooks, Defendants and Respondents.

No. 2653.

Supreme Court of Wyoming.

March 28, 1955.

G. R. McConnell, Walter Scott, Laramie, for appellants.

Sullivan & Sullivan, Laramie, for respondents.

BLUME, Justice.

This is an action brought by the plaintiffs against the defendants to prevent the latter from repairing the dam of the reservoir called the M G Reservoir located in the main in the NW 1/2 of Section 2, Township 23 North, Range 73, and extending partially into Section 35, Township 24 North, Range 73 West of the 6th P. M. Plaintiffs alleged that they are the owners of Section 2, supra; that while Margaret O. McGill and John McGill had a permit from the State Engineer of Wyoming to construct the M G Reservoir, they had no authority to construct it; that they never obtained any authority from the United States to do so; that it washed out and had been abandoned for more than ten years and until 1952 at which time defendants attempted to reconstruct it by constructing a dike or dam; that defendants have not filed any annual reports with the water commissioner nor did they file a deed for the reservoir water and water rights connected therewith as required by § 71-615, W.C.S.1945; that defendants failed to use the water from the reservoir for a period of five consecutive years and are now trespassing upon the land of the plaintiffs; that they are attempting to construct a dike higher than it was originally. Plaintiffs accordingly ask for an injunction against the defendants to repair or reconstruct the reservoir above mentioned. Plaintiffs also ask damages in the sum of $500.

The defendants denied that the reservoir and its rights were abandoned and alleged that predecessors to the defendants obtained a permit from the State Board of Control to construct the reservoir as above mentioned; that the patent to the NW 1/2 of Section 2 contained a reservation that it was subject to any vested or accrued water rights; that the reservoir in no manner injures the plaintiffs and that the latter have sustained no damages; that plaintiffs consented to the repair of the reservoir and made no objection thereto. The trial court found against the plaintiffs in the case and in favor of the defendants and dismissed the action. From that judgment, the plaintiffs have appealed and the parties are hereinafter referred to in the same manner as in the court below.

The essential facts in this case are not greatly in dispute, although there is some discrepancy in connection with the dates referring to the early part of the century. It appears herein that in 1902, Margaret O. McGill and John McGill, predecessors in interest of the defendants, received a permit from the State Engineer to construct a reservoir on the property hereinbefore mentioned in order to store water from Duck Creek in Albany county, Wyoming. They received a Certificate of Water Appropriation from the State Board of Control in this state dated December 17, 1910. The certificate recites as follows:

'Said reservoir is located in the N 1/2 NW 1/4 Sec. 2, Tp. 23 N and S 1/2 SW 1/4 Sec. 35, Tp. 24 N, R. 73 W., Albany County, Wyoming, and said appropriation of water stored therein is for the irrigation of land described under the M G No. 2 Ditch Permit No. 4056, Cert. Rec. No. 31, page 146 The M G No. 3 Ditch permit No. 4055, Cert. Rec. No. 31, page 147, and the M G No. 1 Ditch Permit No. 4057, Cert. Rec. No. 31, page 148.'

This certificate of appropriation apparently attached the reservoir and the rights therein to the lands owned by the McGills. These lands are not specified in the certificate but by exhibits A and 3a, which consist of maps indicating the M G Ditch Nos. 2 and 3, showing that lands irrigated by these ditches are located in Sections 29, 30 and 32, Township 24, Range 72 West. Counsel in connection with the testimony mentioned the 'Kite Ranch' and the 'Mertz Ranch' as though we took judicial notice of the location thereof, when, of course, we never heard of them. We take it, however, by inference that the defendants now own the land which was formerly owned by the McGills. At least no question is raised in that connection. These lands are located a comparatively short distance northeast of the M G Reservoir. We must accept as true that, at the time the Certificate of Water Appropriation was issued, the reservoir had been constructed as permitted and required by the State Engineer notwithstanding the fact that the witness Cole testified to the contrary. Wagoner v. Jeffery, 66 Idaho 455, 162 P.2d 400. There is testimony in the record that the reservoir was in good condition at least up to about 1912 and probably for several years thereafter. But in about 1916 or thereabouts part of the dam of the reservoir was washed out. The dam was never completely washed out but had a hole washed out in the middle. It was repaired about 1918 by a party by the name of Cameron. Just how long the reservoir remained in condition for holding water after 1918 is not clear. But at least commencing with about 1922, part of the dam washed out again and remained washed out by reason of a hole in about the center of the dam of the reservoir until 1951. It seems the defendants herein became owners of the land originally owned by the McGills about 1942. There was some consideration given to the repair of the dam in 1946 or 1947. It was intended to use a pipe and valve in repairing it but at that time the material therefor was not obtainable because of scarcity of goods due to the war. But in 1951, Brooks repaired the dam, filled in the breach that had been washed out, placed a conduit pipe and valve and filled the breach with stone and rubble and earth. Part of the dam washed out again in the spring of 1952, but was immediately repaired and, according to the testimony of Brooks held about six feet of water, which he used on his land. In the spring of 1953, the reservoir held about eight feet of water, which was used by Brooks for irrigation. It would seem that from the spring of 1952 to and including the spring of 1953, Brooks worked more or less on the dam so that it would be secure, and would have finished his work within about a week when summons of an injunction in this case was served on him and he then stopped. The conduct of the parties prior to that is shown by the following detailed testimony. Sturgeon testified in part as follows:

'Q. Did you ever talk to him (Brooks) about going upon your land to repair the M G Reservoir? A. Well, I talked to him about 10 years ago. At that time we talked this situation over and I told him that when he got ready to put in his reservoir, why, he could come up and we would come into Laramie and we would have an agreement drawn up where it would be satisfactory, maybe, to both of us.

'Q. Now, in 1953 did you ever talk to him about the reservoir? A. Yes.

'Q. And what did you do in reference to your talk? A. Well, I went down and told him that I would like to have an understanding, that I would like to come here to Laramie and have something drawn up in writing and recorded.

'Q. When did you find out that any work had been done on the reservoir? A. Well, he started work on it in '51, he put it in.

'Q. Did you know about it? A. Yes, I knew about it.

'Q. When did you find out? A. Well, I knew it right along. He was there working and I supposed that maybe he would come up some day and we would come to Laramie, but he never came until I went down and contacted him.

'Q. And when was that that you contacted him? A. Well, it was in August '52.

'Q. Now, in '51, while you saw him working, what did you do? A. I didn't do anything.

'Q. Now, you stated that you knew that Mr. Brooks was repairing this in 1951. A. Yes, sir.

'Q. And you didn't say anything about it? A. We talked it over and I told him when he got ready to put in his reservoir to come up and we would come to Laramie and we would have an agreement drawn up. * * * That was about ten years ago * * * He never did any (work) on it until '51.

'Q. Now, did you have any conversation with him in '51? A. No, I don't recall any conversation with him in '51.

'Q. Were you ever over there while he was working there? A. Well, I was by there and saw him working.

'Q. Did you ever talk with him about it? A. No. I stopped there one day and watched him work a while. He just kept right on working.

'Q. You just passed the time of day? A. Yes.

'Q. How about '52? A. Well, in '52, that was the year it washed out. That was the year we came in here to Laramie to have an agreement drawn up.

'Q. Well, now, what sort of an agreement did you want? A. I wanted an agreement to protect my property below the dam.

'Q. And did you get that agreement? A. No, sir.

'Q. And why not? A. He said that he couldn't sell any of this water nor he couldn't give me any of this water.

'Q. Was that an agreement or were you trying to buy water from him? A. No, sir.

'Q. Well, how does that come about? How did that come out in the conversation? A. For this reservoir, you know, I figured it was built on my land and my dirt that went in it, a man should have some understanding about his dirt or his land that he owns.

'Q. Well, did you want to buy water from him? A. No.

'Q. Now, isn't it a fact that you offered him $500? A. At one time I offered him $500 and he told me, he said, 'I would rather put this reservoir in myself, I don't want any help from anyone.'

'Q. But you offered to pay him $500 towards the repair of the dam, you didn't expect any water, you didn't expect to buy any water from him or anything. A. Yes, sir, I expected water for the land that I had bought. * * * I was interested in the dam, I wanted to put money into the dam and show that I had an interest in the dam.'

Defendant Brooks, in addition to what has been mentioned testified as follows:

'Q. Now, you heard his (Sturgeon's)...