Wheatland Irr. Dist. v. Prosser, 4083

• Decision Date: 26 September 1972
• Docket Number: No. 4083,4083
• Citation: 501 P.2d 1
• Parties: WHEATLAND IRRIGATION DISTRICT, a corporation, Appellant, v. Dean T. PROSSER, Jr., et al., Appellees.
• Court: Wyoming Supreme Court

Page 1

501 P.2d 1

WHEATLAND IRRIGATION DISTRICT, a corporation, Appellant, v. Dean T. PROSSER, Jr., et al., Appellees.

No. 4083.

Supreme Court of Wyoming.

Sept. 26, 1972.

William R. Jones and W. H. Vines, of Jones, Jones, Vines & Hunkins, Wheatland, for appellant.

Byron Hirst and W. Perry Dray, of Hirst, Applegate & Dray, Cheyenne, for appellees Dean T. Prosser, Jr., and Harriot Prosser.

John J. Rooney and James P. Horiskey, of Rooney & Horiskey, Cheyenne, for appellees Bernard R. McGuire and others.

Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.

McINTYRE, Chief Justice.

Wheatland Irrigation District owns and operates a reservoir in Platte County, Wyoming. Certain landowners who own lands below the reservoir suffered damages when the reservoir's dam broke and caused flooding of their lands. Suit was brought by these landowners for their damages.

On motion of the plaintiffs, summary judgment was granted to plaintiffs and against the defendant on the issue of liability. The judgment was based on the provisions of § 41-46, W.S.1957, which reads:

'The owners of reservoirs shall be liable for all damage arising from leakage or overflow of the waters therefrom, or by floods caused by breaking of the embankments of such reservoir.'

In its summary judgment, the district court reserved the issue of the amount of damages for trial. With respect to the issue of liability, however, the judgment stated:

'ORDERED that the Court expressly determines that there is no just reason for delaying the entry of the Summary Judgment and hereby directs the entry thereof * * *'

The defendant did not take a timely appeal from the court's summary judgment-if that judgment is considered to be a final and appealable judgment. Instead, approximately two months after entry of the court's summary judgment, Wheatland Irrigation District moved the district court to reserve to the supreme court certain constitutional questions pertaining to the constitutionality of § 41-46. That motion was denied and defendant gave notice of appeal from the court's order denying its motion to have constitutional questions reserved.

On March 3, 1972 the appellant filed its appeal brief with us. The day before, on March 2, 1972, appellees filed a motion to dismiss the appeal, one of the grounds being that the subject matter of the appeal is moot because the summary judgment was final on the issue of liability and no timely appeal was taken from such judgment. We reserved our decision on the motion to dismiss appellant's appeal until argument was heard on the merits. Now, after oral argument and consideration of briefs, we are persuaded we should decide the merits of the issue appellant seeks to present-whether a district judge must always reserve constitutional questions to the supreme court when he is asked to do so.

Section 1-191, S.W.1957, provides:

'When an important and difficult constitutional question arises in an action or proceeding, pending before the district court in any county of this state, the judge of said court may, on motion of either party, or upon his own motion, cause the same to be reserved and sent to the supreme court for its decision.' (Emphasis supplied.)

Rule 52(c), W.R.C.P., implements § 1-191 by...