Town of Newcastle v. Smith

• Decision Date: 14 March 1922
• Docket Number: 1026
• Citation: 28 Wyo. 371,205 P. 302
• Parties: TOWN OF NEWCASTLE v. SMITH, ET AL
• Court: Wyoming Supreme Court

205 P. 302

28 Wyo. 371

TOWN OF NEWCASTLE v. SMITH, ET AL

No. 1026

Supreme Court of Wyoming

March 14, 1922

Proceedings by the Town of Newcastle, a municipal corporation against Henry F. Smith and numerous other defendants in the nature of condemnation, but for the purpose of changing certain water permits from beneficial to a preferred use for municipal purposes. There was a judgment for plaintiff and from an order denying a motion to modify or vacate the judgment, defendants appeal.

Order reversed and judgment modified.

Diefenderfer and Wakeman, for appellants.

The petition and notice were alike defective and insufficient to authorize a judgment of condemnation; the same is true of the certificate of the appraisers or commissioners and the order of confirmation of the appraiser's report; the judgment complained of was not entered by consent and even if it had been, the portion thereof objected to was void as being entirely outside the issues and not admitted even by default of defendants, the court being without jurisdiction with respect thereto; the procedure for vacation of a final order entered without jurisdiction of the court is by motion. (1 Black on Judgments, Section 303, 307, 318. 15 R. C. L. 692 23 Cyc. 905; 60 A. S. R. 633 Note, (pp. 642-644); Barker v. City of Seattle, (Wash.) 166 P. 1143.) The proceeding was one of default; condemnation was attempted under Chapter 260, C. S. 1910. (City v. Edwards, 22 Wyo. 401; 143 P. 356.) The petition did not contain the essentials required by section 3836, C. S. 1910 which left the court without jurisdiction. (20 C. J. 881.) The notice was fatally defective, (20 C. J. 934); the petition was insufficient to confer jurisdiction. (20 C. J. 753; 3836 C. S. 1910; City of Helena v. Rogan, (Mont.) 68 P. 798.) The petition fails to name the owner of land; necessity for appropriation names of persons claiming an interest; that all persons interested are named; that the action was conducted by the town attorney; it does not pray for the appropriation of proper rights as required by section 3836, C. S. 1910. The certificate of commissioners was void as it contained no description of lands taken or affected. The order of confirmation was also void for the same reason. (City of Helena v. Rogan, supra. (Comesky v. Suffern, 72 N.E 320.) A default proceeding must follow the statute. (23 Cyc. 740.) Even if the order of confirmation was entered by consent the court was without jurisdiction in view of the defects in the petition; condemnation rests solely upon constitutional or legislative provision. (20 C. J. 872. Henry v. Railroad Co., 42 N.E. 744; In Re Yonkers, 23 N.E. 661 (N. Y.); Meriden v. Zwaln, 91 A. 439; Water Company v. Watson, 52 A. 947; 53 A. 57.) A judgment outside the issues is void. (Metcalf v. Hart, 3 Wyo. 513.) Even if a cause of action was stated it is questionable whether the city attorney could consent to a decree without a showing of authority from the municipality but it is clear that it could not waive the lack of sufficient statement. (Shurtleff v. Board of Commissioners, 66 P. 654.) The proceeding is one of default rather than of consent and in as much as it is broader than the pleading, is to that extent void, for want of jurisdiction.

E. E. Wakeman, for respondent, filed no brief.

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

OPINION

KIMBALL, Justice.

The appeal is from an order denying a motion to modify or vacate in part a judgment in favor of the plaintiff, the Town of Newcastle, against numerous defendants.

Prior to March 27, 1919, the defendants were notified in writing that on that day the plaintiff would file a petition "in condemnation," praying that two water permits for "flood ditches * * * diverting water from Stockade Beaver Creek be changed from a beneficial to a preferred use for municipal, domestic and transportation purposes for the benefit of * * * plaintiff; and asking for the appointment of commissioners to estimate and fix the compensation, if any, to be paid the owners and persons interested for the taking or injuriously affecting the property or rights of any person named as defendant in said petition;" and that a hearing would be had on the day mentioned. This notice was entitled "Notice of Filing a Petition in Condemnation."

On March 27, the plaintiff filed its petition, alleging in substance that to secure an adequate water supply for its municipal, transportation and domestic purposes it was necessary and desired that the permits mentioned in the notice be changed from a beneficial to a preferred use; that an application for that purpose had already been made to the State Engineer, and the change approved by him and the Board of Control; that the defendants had water rights upon or along said Creek which they used for beneficial, stock or domestic purposes; that plaintiff intended to construct certain works "for the storing of waters which are to be taken under the permits heretofore described," and for transporting said waters to the town; that the consideration to be paid defendants could not be agreed upon, and "it is absolutely necessary for the appropriation of water as herein described * * * that the water permits be changed from a beneficial to a preferred use." The prayer we quote in full, as follows:

"WHEREFORE, the plaintiff prays for the appropriation of the water in Parmelle Canyon tributary to Stockade Beaver Creek, and that permits No. 11556 and 11557 as hereinbefore described be changed from a beneficial use to a preferred use for municipal, transportation and domestic purposes; and prays for the appointment of commissioners, as by law provided; to cause an assessment to be made for the compensation to be paid, if any, to the owners or persons interested in water rights near and along said Stockade Beaver Creek."

On the day the petition was filed a hearing, presumably in accordance with section 4910, Wyo. C. S. 1920, was had, as shown by an order of the court which recites that the matter came on to be heard upon the petition of the plaintiff for appointment of commissioners to assess damages for changing said permits from a beneficial to a preferred use; that there was no appearance for any of the defendants, each of whom was declared to have been legally served with notice, and having failed to answer or claim damages, to be in default; that "many of the defendants were present in the court room and listened to the proceedings and were asked by court and counsel if any one had any suggestions to make as to who should be appointed commissioners; no suggestions being made, and the court having found from the evidence that plaintiff is a municipal corporation, and that it is necessary in order that it may supply its inhabitants and patrons with municipal, domestic and transportation waters and that said permits for beneficial use be changed to preferred use," three commissioners were appointed "to settle and determine what damages, if any, the above named defendants or either of them are entitled to for the taking of said waters, described herein."

On March 28, 1919, the commissioners reported that they had met on the morning of that day; that no one claimed any damages or compensation "for any of the water taken or injuriously affected by this proceeding, and that the waters appropriated herein are as follows: "Permits 11556 and 11557 * * *, granted to E. R. Maris (one of the defendants,) which said water rights are to be changed from a beneficial to a preferred use;" that said E. R. Maris "is the only person whose waters are taken by this condemnation proceeding," and all other defendants had released "their...