Van Tassel Real Estate & Livestock Co. v. City of Cheyenne

• Citation: 54 P.2d 906,49 Wyo. 333
• Decision Date: 18 February 1936
• Docket Number: 1912
• Parties: VAN TASSEL REAL ESTATE & LIVESTOCK COMPANY v. CITY OF CHEYENNE, ET AL
• Court: United States State Supreme Court of Wyoming

54 P.2d 906

49 Wyo. 333

VAN TASSEL REAL ESTATE & LIVESTOCK COMPANY v. CITY OF CHEYENNE, ET AL

No. 1912

Supreme Court of Wyoming

February 18, 1936

APPEAL from the District Court, Laramie County; C. O. BROWN, Judge.

Action by the Van Tassel Real Estate & Live Stock Company against the City of Cheyenne and others. Judgment for defendants and plaintiff appeals.

Affirmed.

For the appellant, there were briefs and the cause was argued orally by John U. Loomis and James A. Greenwood of Cheyenne Wyoming.

Water is the property of the state. The title of an appropriator is limited to use for beneficial purposes, pursuant to a lawful appropriation. Const. Art. VIII, Sec. 1; Farm Invesment Co. v. Carpenter, 9 Wyo. 110. Sec. 122-401, R. S., Wiel on Water Rights, 3 Ed., Sec. 277; Long on Irrigation (2d Ed.) Sec. 166; Kinney on Irrigation (2d Ed.) Vol. 2. Sec. 772; Hamp v. State, 19 Wyo. 377; Hunt v. City of Laramie, 26 Wyo. 160; Hereford Ranch Company v Packing Co., 33 Wyo. 14; Willey v. Decker, 11 Wyo. 496. Priority of use gives the better right. Const Art. VIII, Sec. 3. Means of diversion are requisite. McPhail v. Forney, 4 Wyo. 556; Collett v Morgan, 21 Wyo. 117. Diversion is but one element of appropriation there must also be application to beneficial use. Millheiser v. Long (N. M.) 61 P. 111; Whalon v. Canal Company, 11 Wyo. 313; Moyer v. Preston, 6 Wyo. 308; Ditch Company v. Canal Company, (Colo.) 119 P. 1056. The Board of Control may adjudicate rights. Hamp v. State, 19 Wyo. 377. Since 1890 diversion permits are requisite. Hereford Ranch v. Packing Company, 33 Wyo. 14; Whalon v. Canal Company, 11 Wyo. 313; Sec. 122-418, R. S. 1931. Adjudication by the Board of Control is a settlement or adjustment of the priorities of appropriation of the public waters of the State for purpose of administration. Laramie Irr. Co. v. Grant, 44 Wyo. 392; Ryan v. Tutty, 13 Wyo. 122. Adjudications of the Board of Control bind administrators of water rights. Parshall v. Cowper, 22 Wyo. 385. Municipal corporations may appropriate water for public purposes. Const., Art. XIII, Sec. 5, Seaman v. Big Horn Canal Association, 29 Wyo. 391. Subsequent appropriators are entitled to surplus. Kinney on Irrigation (2d Ed.) Vol. 2, Sec. 659 and 660; Johnston v. Little Horse Creek Company, 13 Wyo. 208. The first appropriator cannot enlarge his original appropriation to the detriment of subsequent appropriators. Company v. Dangberg, (Nev.) 81 F. 73; Fort Collins Company v. Irrigation Company, (Colo.) 156 P. 140; Ditch Company v. Vaughn, 11 Cal. 143; Rominger v. Squares, (Colo.) 12 P. 213; Gould, Water, Section 231; Groo v. Sights, 22 Wyo. 19. Rights are fixed by application to beneficial use. Becker v. Irr. Company, (Utah) 49 P. 893; Leavitt. Irr. Company, (Cal.) 106 P. 404; Gunnison Company v. Company, (Colo.) 174 P. 852; Parshall v. Cowper, supra; Water Company v. Powell, 34 Cal. 109; Andrews v. Donnelly, (Ore.) 116 P. 569. Rights are limited to necessary beneficial use irrespective of ditch capacity. Sec. 122-421, R. S., Johnston v. Little Horse Creek Company, supra. Rights are limited to necessary use irrespective of maximum amount of water. Company v. Larimer & Weld Irr. Company, (Colo.) 156 P. 140; Parshall v. Cowper, supra. The capacity of the appropriator's diversion works is a limitation upon the amount of the appropriation. 2 Kinney on Irrigation, Sec. 883; Parshall v. Cowper, supra; Bamforth v. Ihmsen, 28 Wyo. 283; Collett v. Morgan, 21 Wyo. 117. Senior appropriators can make no change injurious to a junior appropriator. Monte Company v. Company, (Colo.) 135 P. 981; Bennett v. Nourse, (Idaho) 125 P. 1038; Groo v. Sights, supra. There is a distinction between direct flow appropriations and diversion for storage; a senior appropriation for direct use cannot impond water for future use as against rights of a junior appropriation for immediate, beneficial use. Greeley Company v. Huppe, (Colo.) 135 P. 386; Handy Company v. Irrigation Company 280 P. 481; Windsor v. Lake Supply Ditch Company, (Colo.) 98 P. 729; Comstock v. Company, 145 P. 700. State administrative offices have exclusive control of diversion. Sec. 122-303, R. S., Parshall v. Cowper, supra; Ryan v. Tutty, 13 Wyo. 122; Hamp v. State, supra; Laramie Irr. & Power Company v. Grant, 44 Wyo. 392. The measure of damages for injury by unlawful use is specified by the following authorities: 17 C. J. 893; 8 R. C. L. 483; Beville v. Allen, (Ariz.) 237 P. 184; Bader v. Company, 28 Wyo. 191; Town Council v. Ladd, 37 Wyo. 419; Hatch Bros. v. Black, 25 Wyo. 109 and cases cited. Value of crops and rental value of land are factors. Bigler v. Fryer, (Utah) 25 P.2d 598; C. B. & Q. Ry. Company v. Gelvin, 238 F. 14; Edwards v. City of Cheyenne, 19 Wyo. 110. Exemplary damages may be allowed in proper cases in this state. Cosgriff Bros. v. Miller, 10 Wyo. 190. The only penalty for failure to present claims against the City in writing is that no costs shall be recovered against the city in any action brought against it upon such claim. Sec 22-1918, R. S. Presentation of claim does not include torts. Miller v. Mullan, (Ida.) 104 P. 660; Kelley v. Madison, 43 Wis. 638; Perkins v. County, (Nebr.) 78 N.W. 630; Sutton v. Snohomish, (Wash.) 39 P. 273; Shields v. Town of Durham, (N. C.) 24 S.E. 794. Presentation does not apply to equity cases. Kiser v. Douglas County, (Wash.) 126 P. 622; 50 L. R. A., (N. S.) 186; Sammons v. Gloverville, (N. Y.) 67 N.E. 622; Lonsdale v. City of Woonsocket, (R. I.) 56 A. 448; Omaha v. Clarge, (Nebr.) 92 N.W. 146. The city is not the owner of any water flowing in the natural channel of Crow Creek. Laws 1876, Chapter 65, Sec. 1; Laws 1886, Chapter 61, Sec. 14 and authorities above cited. Priority of use gives the better right. Hereford Ranch v. Packing Company, supra; Farm Investment Company v. Carpenter, supra, and cases cited. The capacity of the ditch and application to beneficial use limit the right of the appropriator. Parshall v. Cowper, supra, and cases cited. The defendant city's junior appropriations are specifically described in the record and consist of storage reservoirs and pipe line appropriations. The admissions of defendant city as to its junior appropriations are to be construed most strongly against it. Thompson on Trials (2d Ed.) Sec. 197; Wyoming Construction Company v. Lumber Company, 25 Wyo. 158. The city cannot store water under a direct flow appropriation as against junior appropriators of direct flow water. Handy Ditch Company v. Greeley Company, supra; Windsor & Canal Company v. Ditch Company, (Colo.) 98 P. 729; Comstock v. Company, 145 P. 700. A senior appropriator cannot enlarge his rights as against subsequent appropriators. Nichols v. Hufford, 21 Wyo. 477; Groo v. Sights, supra; Parshall v. Cowper, supra; Johnston v. Irrigating Company, 13 Wyo. 208. Plaintiff is entitled to recover the damages sustained in the destruction of its crops and meadow, grass roots, costs of restoration and rental value of land during the time required for restoration. See authorities above cited. Plaintiff was not required to file with defendant city a claim in writing as a condition precedent to the commencement of this action. Plaintiff is entitled to a perpetual injunction and to damages suffered by reason of the unlawful interference with the water rights of plaintiff by the defendant.

For the respondent, there was a brief by Ellery, Hunter, and Ferrall of Cheyenne, and oral arguments by Messrs. Ellery and Ferrall.

The right of the city to use the water of Crow Creek and tributaries was adjudicated by decree dated April 18, 1883 which decree provides that plaintiff's predecessor in interest is entitled to use 4.5 and 6.25 cubic feet of water from north Crow Creek, which are respectively the first and ninth rights on said tributary, subject to the rights of persons on the main stream, and that the City of Cheyenne is entitled to have 12,481 cubic feet, which is the first right on said stream. The City has the right to divert water at a point on main Crow Creek in the Northwest Quarter of the Northwest Quarter of Section 21 in Township 14, Range 67 West, and at various points on main Crow Creek and the tributaries above and west of said diversion point in Section 21. The city diverts and takes water from Crow Creek by means of three channel reservoirs, three diversion dams, two pumping plants and a system of pipe line. The City has not at any time intercepted or used the water of Crow Creek and its tributaries in an amount exceeding twelve thousand four hundred eight-one cubic feet per second of time, nor in an amount exceeding the actual needs of the City. The plaintiff did not present to or file with the City a claim for the sum of $ 64,500.00 damages or any other sum. The City has not abandoned the right to take and use the amount decreed to it on April 18, 1888. The plaintiff is not entitled to relief. The City had the right to appropriate beyond its needs at the time of adjudication. Wyoming Hereford Ranch v. Packing Company (Wyo.) 236 P. 764. Plaintiff's predecessor was a party to the adjudication on April 18, 1888, and after a lapse of 45 years may not assert any alleged invalidity, error or mistake touching said decree or the entry thereof. R. S. 89-2101-3; 89-2301-4; 89-2310; Edwards v. City of Cheyenne, 19 Wyo. 110; Bradford v. Trapp, (Cal.) 193 P. 584; Foster v. Christensen, (Texas) 42 S.W.2d 460. The decree of April 18, 1888 is res judicata and may not be inquired into in a collateral proceeding. Holt v. City of Cheyenne, 22 Wyo. 212; Mining Company v. Coal Company, (Wyo.) 272 P. 12; Poston v. Delfelder, 39 Wyo. 163; May v. Penton, 45 Wyo, 82; Weberpals v. Jenny, (Ill.) 133 N.E. 62; O'Brien v. King, (Colo.) 92 P. 945; Irrigation Company v. Trust Company, (Colo.) 75 P. 391; Storage Company...