Whalon v. North Platte Canal and Colonization Company

Citation11 Wyo. 313,71 P. 995
PartiesWHALON v. NORTH PLATTE CANAL AND COLONIZATION COMPANY
Decision Date31 March 1903
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

Action to enjoin the threatened construction of a ditch across the lands of plaintiff. The material facts are stated in the opinion.

Affirmed.

W. R Stoll, for plaintiff in error.

The point at issue in the entire case is whether the plaintiff in error was prior in point of time, and, therefore, in right with the Whalon Ditch, or whether the defendant in error was prior in point of time, and, therefore, in right, with the Whalen Falls Canal and Power Company Ditch.

Upon the theory of the plaintiff in error, he was prior in point of time, and, therefore, in right. If this be correct, the ruling of the court excluding the testimony offered by him was erroneous and the judgment of the court was also erroneous.

The EXCLUDED EVIDENCE. --Plaintiff in error admits, as a proposition of law, that in this State, as a rule, the date of the priority of an appropriation of water is the date of the application made in the State Engineer's office; but he contends that the relative rights of conflicting claimants may not always be so determined, and sometimes, other things being equal, that the question of possession of the ditch or right of way may be material in determining such relative rights.

The defendant in error had contended that the plaintiff in error had no ditch at all, and the evidence of previous construction was clearly material to show the existence of a ditch, or a line of ditch, at least subsequent to November 19th, 1901.

It is fundamental that the appropriator of water must use reasonable diligence in the construction of his means of appropriation, and the offered evidence was admissible to show that the plaintiff in error, since making his application, had at least been reasonably diligent, and for this reason it was error to exclude such testimony.

It was also contended, both in the pleadings and in the evidence by the plaintiff in error, that the defendant in error had never made any application for a permit, and had never succeeded to the rights of anyone who ever had made such an application for the line of the ditch claimed by the defendant in error. If this was true, then, clearly if the defendant in error claimed it had any right to claim any interest in its so-called ditch, the said interest could have resulted only from its possession of the line of such ditch. This being so the question as to whether or not the defendant in error had any line of ditch at all, or whether or not it had ever been in possession of the line which it was alleged to claim, and the question as to whether or not the plaintiff in error had not only applied for a permit, but had previously thereto been in possession of the line of his ditch, and had gone so far as to construct its headgate and had built a considerable portion of the ditch itself, were material questions, in order to settle the rights between the plaintiff and defendant; and, hence, the exclusion of this testimony was error under the issues made in the pleadings and under the contention of the respective parties on the trial.

Further, it is plain that if the contention of the defendant to the effect that the plaintiff's ditch was an impracticable one, and the land could not be irrigated from it, had any foundation, then the evidence offered by plaintiff in error to show that the ditch was a practicable one, and that the land in question was irrigable therefrom, was material evidence; and in any event it is believed that it is incumbent upon the appropriator of water to show, not only reasonable diligence in the construction of a ditch, but also that the ditch is designed to irrigate certain lands which are irrigable therefrom, and for this reason there was error in excluding the evidence offered.

Also, it was competent to show the conflict in the lines of the respective ditches, thereby tending to establish whether or not the allegations of the petition to the effect that the defendant's contemplated line of ditch would obstruct and destroy the plaintiff's line of ditch, and evidence tending to show the routes of the respective ditches and a conflict between the same, as determined by a competent engineer, was most material.

DEFENDANT DID NOT SUCCEED TO ANY RIGHTS. --That the defendant never acquired any rights in or to its socalled line of ditch, either originally or by succeeding to the rights of anyone else, will be apparent from the following:

1. In the first place, the defendant never made any application for a permit to divert waters by means of the Whalen Falls Canal and Power Company Ditch, or any other ditch.

2. John Hunton and Florence A. Miller made an application for a permit for the Whalen Falls Canal and Power Company Ditch on September 6th, 1901, and this application was made for themselves, and for no one else.

3. The question, then, resolves itself into whether or not defendant succeeded at any time before November 19, 1901, as against the plaintiff, to the rights of John Hunton and Florence A. Miller.

Defendant claims that it succeeded to the rights of those persons by reason of certain assignments. An examination of the assignments will show that not one of them was executed or acknowledged as the statutes of this State require instruments conveying an interest in real estate to be executed and acknowledged. Not one of them was filed for record, or recorded in the office of the County Clerk, but were filed in the office of the State Engineer, not, however, until December, 1901.

The assignments raised the main contention in the case, and it is submitted that they were insufficient to convey any interest whatever in the ditch in question to the defendant, as against the plaintiff. The following propositions are submitted:

1. The assignments, or purported assignments, are insufficient to convey any interest in real estate, and, therefore, insufficient to convey any interest in or to the right of way, or ditch, or water right, or so-called survey, of the defendant.

Any conveyance of lands, or any interest in lands, must be executed and acknowledged in the manner prescribed by statute.

2. Unless a conveyance is made in accordance with the statutory requirements, it cannot be recorded. (R. S., Secs. 2754, 2758, 2759, 2760, 2761, 2762.)

3. Any interests whatever in real estate can be conveyed or assigned only in the manner above pointed out. It does not matter what is attempted to be conveyed, if what is attempted to be conveyed is a title to any kind of real estate. The conveyance must comply with the provisions of the statutes. (R. S., Secs. 2728, 2731, 2732, 2733, 2739.)

4. A water right, which includes always a right of way for the ditch conveying it, is a species of real estate, or, at least, it is an appurtenance to real estate.

It is not necessary that the term real estate should, by virtue of any special statute, be made to include water rights. Water used or to be used in connection with land was always appurtenant to such land at common law, and this common law doctrine, irrespective of any statute, has been applied in the arid region. And even in states where nothing is said as to the kind of property in a water right, it is held that water rights are a species of realty. (Kinney on Irrig., Secs. 223, 224, 267; Hill v. Owen, 5 Cal., 445; Ditch Co. v. Canal Co., 60 Cal. 408; Barkley v. Tieleke, 2 Mont., 59; Frank v. Hicks, 4 Wyo. 502.)

5. An attempt to convey a water right by an imperfect conveyance operates as an abandonment by the appropriator of his rights, and the rights of the purchaser relate only to the date of his taking possession, as though it were an original appropriation by him. Nor can the vendee, by a verbal contract or unrecorded deed, even accompanied by posession, tack his own use on to that of his grantor who acquired his right by appropriation, and thus cut out the rights of appropriators who were subsequent to the grantor, but prior to himself. (Kinney on Irrig., Secs. 253, 264; Salina Creek Irrig. Co. v. Salina Stock Co. (Utah), 27 P. 578; Smith v. O'Hara, 43 Cal. 371.)

It is not contended by plaintiff that, as between the grantor and grantee of a water right, or any other species of realty, a conveyance, though defective in form, may not give to the grantee, as against the grantor, the right of the grantor.

The plaintiff does not claim in this case that the defendant may not estop either Hunton, or Florence A. Miller, or Jones, from asserting any claim to this ditch, as against the defendant; nor does he claim that the defendant may not claim an absolute right to this ditch, as against all persons who may hereafter assert any claim thereto, provided the defendant maintains possession of the same. Here again is seen the significance of the testimony excluded relating to the possession by the plaintiff of the line of his ditch, because if the defendant had taken possession of the line of its ditch after November 10th, 1901, the date when Florence A. Miller conveyed her interest in the ditch to the defendant, and before November 19th, 1901, the plaintiff might have been estopped from asserting any claim to the right of way in question, by reason of his knowledge that the defendant in error was actually in possession of the line of its ditch, and, therefore, in possession of the line of its right of way where the same conflicts with the line of the plaintiff in error's ditch.

It is submitted that there is no room for any argument of hardship in this or any other case of similar nature. All persons are supposed to know the law.

It may be a considerable hardship to a man who has expended a...

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