The Farm Investment Company v. Carpenter

• Decision Date: 26 May 1900
• Citation: 9 Wyo. 110,61 P. 258
• Parties: THE FARM INVESTMENT COMPANY v. CARPENTER ET AL
• Court: Wyoming Supreme Court

61 P. 258

9 Wyo. 110

THE FARM INVESTMENT COMPANY v. CARPENTER ET AL

Supreme Court of Wyoming

May 26, 1900

ON reserved questions from the District Court, Johnson County HON. JOSEPH L. STOTTS, Judge.

Action to quiet title to a right to the use of water.

The case is fully stated in the opinion.

James W. McCreery and Alvin Bennett, for plaintiff.

Irrigation was practiced from the beginning of the civilized settlements of the arid regions of this country; and the first taker was conceded to have the first right. That principle became the fundamental formula of law concerning the acquisition of property and water rights for beneficial uses. The right thus became an original property right resting on the law of necessity. Priority of use among different claimants from the same stream determines the seniority of a continual and perpetual right. When such rights have attached, the principle of vested rights intervenes to protect them through all the mutations and theories of subsequent legislation. (U S. Rev. St., Sec. 2339; Atchison v. Peterson, 20 Wall, 507; Basey v. Gallagher, id., 670; Jennison v. Kirk, 98 U.S. 453; Thorpe v. Freed 1 Mont., 651; Broder v. Natona W. Co., 101 U.S 274; Krall v. U.S. 79 F. 241; Union M. & M. Co., 81 id., 73; Howell v. Johnson, 89 id., 556.) The right was recognized, not only by Congress, but the various States of the arid region by statute and decision of courts recognized the same principle from the earliest times. (Irwin v. Phillips, 5 Cal., 140; Osgood v. W. &amp M. Co., 56 id., 571; Lobdell v. Simpson, 2 Nev., 274; Van Sickle v. Haines, 7 id., 287; Jones v. Adams, 19 id., 78; Yunker v. Nichols, 1 Col., 551; Shilling v. Rominger, 4 id., 100; Coffin v. Left Hand D. Co., 6 id., 442; Platte W. Co. v. Nor. Col. I. Co., 12 id., 525; Moyer v. Preston, 6 Wyo., 308; Wyo. R. S., Sec. 1311 - 1361; Carson v. Gentner, 52 P. 506, 33 Or. 512; Drake v. Earhart, 23 P. 541, 2 Ida, 716; Hill v. Van Normand, 16 P. 266 (Ari.); Stowell v. Johnson, 26 Pac, 290, 7 Utah 215; Trambley v. Luterman, 27 P. 312, 6 N. Mex. 15.) From the foregoing, it appears to be well established that the innavigable streams and the water flowing therein were a part of the public domain. No federal or State statute can be said to confer the right to take the water; the most they can do is to regulate the use under the police powers of the State for the health and peace of the community. (Cases above cited and Ft. M. L. & Co., 18 Colo. 1; Frank v. Hicks, 4 Wyo. 502.)

Titles to property are not acquired by assertion or the wish to possess, and since all the innavigable streams and the waters therein and lakes and still waters found within the boundaries of this State, were formerly part of the public domain of the United States, the government can not become divested of its title by the declaration of the State constitution that they are the property of the State. The act of admission granted certain lands to the State, and the grant excludes by implication things not enumerated. (Sedg. Const., 31; Com. v. Ins. Co., 98 Mass. 29; M. E. Ch. v. Joques, 3 Johns. Ch., 110; U. S. v. Arrendondo, 6 Pet., 725; Howell v. Johnson, 89 F. 556.)

The powers of the State government are distributed into three departments. (Const. Art. 2, Sec. I.) There is an absolute prohibition against the exercise by one department of powers belonging to another. The principle, however, is fundamental. Mont. Spirit L., Vol. I, p. 172. It was one of the foundations of the Federal constitution. (Kilbourne v. Thompson, 103 U.S. 188; Dash v. Van Kleck, 7 Johns., 477; Webster's Works, Vol. 4, 122.) What constitutes judicial power is to be determined in the light of the common law and the history of our institutions, as they existed anterior to, and at the time of the adoption of the constitution. (State v. Harman, 31 O., 250; Culman v. Judd, 23 Wis. 343; Houston v. Williams, 13 Cal. 27; Cooley Const. Lim., 109.) At the time of the adoption of the constitution, the determination of water rights was vested in the courts. The jurisdiction of the courts is carefully marked out in the constitution, and that of the district court includes original jurisdiction of all causes in law and equity, and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court. The constitutional provisions creating the Board of Control do not create a jurisdiction in matters judicial for the board. When the constitution confers the judicial power upon certain specified courts, this must be understood to embrace the whole judicial power, and the Legislature can not in such case pass a statute abolishing such courts or vest any portion of the power elsewhere. (Bondy Sep. Gov. Pow., 31; Chandler v. Nash, 5 Mich., 409; Zander v. Coe, 5 Cal., 230; State v. City, 14 Ill. 420; Kilbourn v. Thompson, 103 U.S. 188.)

The act in question is unconstitutional in so far as it attempts to confer upon the board judicial power. A court is provided by the act and a trial. (Wilson's Works, Vol. 2, 75; Ry. Co. v. Minn., 134 U.S. 457.) Pleadings are provided for. The attempt to give to the board such powers is manifestly repugnant to the separation of the power of government. The Legislature can not withdraw from judicial congnizance any matter, from its nature, the subject of a suit at common law or in equity. (Murray v. Hoboken, 18 How., 284.)

The act is void in the respect named because it attempts to set up new grounds for the right of property in water--different elements in making appropriations than those existing prior to the constitution. The priority of appropriation which gives the better right must mean the same thing or precisely what it meant in 1890. One thing that an appropriation means or meant is that the appropriator could take from the stream up to the full measure of his necessities, another, that he could change the place and character of the use; and that he had a property which he could sell. (McDonald v. Bear R. Co., 13 Cal. 220; Thompson v. Guirand, 6 Colo., 532; Larimer Co. R. Co. v. People, 8 id., 616; Min. Co. v. Carpenter, 4 Nev., 544; Wheeler v. N. Colo. Irr. Co., 10 Colo. 582; Sieber v. Frink, 7 id., 154; Fuller v. Swan R. P. M. Co., 12 Cal. 10; Strickler v. Colo. Springs, 16 id., 61; Junkans v. Bergin, 67. Union M. & M. Co. v. Dangberg, 81 F. 73.) From the rulings of the board it is evident that the changes sought to be effected are based upon the assumption of state ownership. The act in question changes retrospectively the meaning of the terms employed by the constitution; creates new rules of property; changes acquired rights of property in appropriations to water, and is void for those reasons.

The act is also void as in conflict with Section 24 of the constitution, requiring that no bill shall contain more than one subject. To supervise does not mean to adjudicate, to determine, to decree, or to order. It means to obey orders, and oversee their execution. If the word is broad enough to cover the determinations provided in the act, then the title does not clearly express the subject. (Skinner v. Wilheim, 63 Mich. 568; Howlett v. Cheetham (Wash.), 50 P. 522.)

The statute can not have any application to rights that were acquired or had vested, prior to the constitution and the passage of the act. To give it such an application is to give a retrospective effect whereby vested rights may be defeated, and contracts existing at and before the law, may be impaired. That would be illegal. (Const. Art. 1, Sec. 35; 1 Kent's Com., 455; Potter's Dwarris, 162, 165-66; Sedg. Const., 173; Willoughby v. George, 5 Colo., 81; Dash v. Van Kleek, 7 Johns., 477; Williamson v. Field's Ex'rs., 2 Sandf., 533; Wilkinson v. Leland, 2 Pet., 656; Dartmouth Coll. v. Woodward, 4 Wheat., 518.)

The procedure does not constitute due process of law. Constructive notice will only operate, except in certain cases, in proceedings in rem, and will then only bind the property seized or what is equivalent thereto. (Webster v. Reid, 11 How., 437; Pennoyer v. Neff, 95 U.S. 714; Hart v. Sansom, 110 id., 151; Union Colony v. Elliott, 5 Colo., 22; Cooley Const. Lim., 431, et seq.)

The act is not a police regulation, and none of its provisions, concerning the board, nor the consequences sought to be obtained, come within any proper definition of the police power. That power extends to the protection of the lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the state. (Tiedeman Pol. Pow., Sec. 1; Farmer's Ind. D. Co. v. Agr. D. Co., 45 P. 444.) The manifest purpose is to create, not to regulate.

C. H. Parmelee and G. E. A. Moeller, for defendants.

Of all the arid States, irrigation was latest of development in Wyoming. It need not be supposed that we should follow all the errors and experimentation which has from time to time crept into the decisions of other States. We have taken advantage of the experience of others. While we have embodied in our laws what has been found good and efficient in the laws of other States, we have not adopted some which have been found to lamely protect the public interest. The history of irrigation shows that the public interest has been too frequently ignored. The subsequent appropriator has rights as well as the prior appropriator, though they are inferior to those of the one prior in time. They need protection nevertheless. In this State it is understood that two things are essential to this end: first, the limitation of appropriation to actual need for beneficial use; and second, public control.

The idea of prior appropriation, and that he who is first in time is first in right, is not inconsistent with public ownership and control. Although the waters were upon the public domain they must be...