Wyoming Hereford Ranch v. Hammond Packing Co., 1205

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: KIMBALL, Justice.
• Citation: 33 Wyo. 14,236 P. 764
• Parties: WYOMING HEREFORD RANCH v. HAMMOND PACKING CO., ET AL. [*]
• Docket Number: 1205
• Decision Date: 19 May 1925

236 P. 764

33 Wyo. 14

WYOMING HEREFORD RANCH
v.
HAMMOND PACKING CO., ET AL. ^[*]

No. 1205

Supreme Court of Wyoming

May 19, 1925

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

Action by Wyoming Hereford Ranch, a corporation, against Hammond Packing Company, the City of Cheyenne and others involving an issue of abandonment of water appropriations and relative priorities to the use of water from Crow Creek, and also a certain contract existing between the City and the packing company for the disposal of the city's sewage. Pending appeal the packing company was adjudged a bankrupt, and was represented by its Trustee. Other material facts are stated in the opinion. See also 31 Wyo. 31; 222 P. 1027.

Decree modified.

William C. Mentzer and William E. Mullen for appellant and Trustee in Bankruptcy.

Respondent's claim to priorities 5 and 19 under the decree of 1888, and its various other claims of appropriations, have not been used continuously and adversely to appellants; appellant claims priority under the decree of 1888 for 1060 acres; its additional appropriations are claimed under certificates from the Board of Control. Appellant's claims are predicated upon natural flow with additions from sewage and waste water; its rights were initiated under Territorial and State laws; it also claims under its contract with the City of Cheyenne of January 3rd, 1922 for sewage and waste water. Respondents' charge of abandonment was not sustained by the evidence. Intention is the essence of abandonment; Hall v. Lincoln, (Colo.) 50 P. 1047; mere non-user is insufficient to establish abandonment, New Merc. Co. v. Armstrong, (Colo.) 40 P. 889; White v. Nuckolls, (Colo.) 112 P. 328; Farnham Sec. 691; Miller v. Wheeler, (Wash.) 43, L. R. A. N. S. 1065; the burden is upon one asserting abandonment; Platte Valley Co. v. Co., 75 P. 391; mere declarations do not constitute abandonment, Ditch Co. v. Frantz, (Colo.) 129 P. 1006; Perry v. Calkins, (Cal.) 113 P. 136; the Constitution Art. VIII. Sec. 1-5 places the supervision of water rights under an Engineer and State Board of Control; our legislation 832, 852, 858 C. S. carries out this intention; no appropriation of water can be lawfully initiated without a permit from the State; respondent's claim to an appropriation through the Bolin ditch has no standing. The City of Cheyenne owns the first right on the stream and has lawful authority to dispose of its surplus water; Kinney on Irrigation, (2nd. Ed.) 846, 773, 774; Spring Valley v. Schottler, 110 U.S. 347; Holt v. Cheyenne, 22 Wyo. 231 and to change its place of diversion; Johnston v. Irrigation Co., 13 Wyo. 208; Holt v. Cheyenne, supra; Edwards v. Cheyenne, 19 Wyo. 110; Canal Co. v. Irri. Co., 70 Wis. 635; and to provide for sewage disposal; Ditch Co. v. Trinidad, (Colo.) 203 P. 681 is not in point on the facts. Respondent could not acquire a prescriptive right through the Bolin and Stewart ditches by a violation of the constitution and laws of the State; Watts v. Spencer, 940 P. 39; Land Co. v. Cowell, (Cal.) 106 P. 675; Smith v. Smith, (Ore.) 135 P. 876; as against the appellant who complied therewith, Talbot v. Co., (Mont.) 73 P. 111; Smith v. Duff, (Mont.) 102 P. 981; a prescriptive right cannot be gained by diversion at a point below; Miller v. Co., (Cal.) 147 P. 567; Turner v. Co., (Cal.) 147 P. 579; nor without depriving an adverse claimant of use; Boynton v. Longley, (Nev.) 6 P. 437; Co. v. Hancock, (Cal.) 24 P. 645; Kinney 293; the enlargement of the Bolin, Stewart and Kingham ditches and the irrigation of an increased area of land since statehood, is unwarranted, either by the Territorial decree or State laws. The doctrine, that appropriations may be established by user, ignoring State laws, does not obtain in this State. A prescriptive right will not attach to waste waters, Kinney 1043; Cordelli v. Co., (Nev.) 66 P. 950; Hunt v. Laramie, (Wyo.) 181 P. 137; Ide v. U. S. (Unreported; decided Jan. 27, 24). Vested rights are not affected by subsequent legislation, C. B. & Q. R. R. Co. v. McPhillamey, (Wyo.) 118 P. 682; Farm Investment Co. v. Carpenter, 9 Wyo. 111; a Court action for abandonment cannot be maintained on a mere finding of non-user for the statutory period, in the absence of showing of intent. It is clearly intended by our Constitution and laws that water supervision, including proceedings for abandonment, should be initiated before the Board of Control subject to appeal to the Courts.

Kinkead, Ellery & Henderson for respondents.

The statutes commencing with Chap. 55, Laws of 1888 provided for abandonment by non-user and have remained unchanged, except an extension of time by subsequent amendments; similar statutes have been construed in Lindblom v. Co., (Cal.) 173 P. 994; Smith v. Hawkins, (Cal.) 42 P. 453; In Re waters of Umatilla, (Ore.) 168 P. 923; Kinney Sec. 1118; Joyce v. Co., (Ida.) 208 P. 241; Wimer v. Simmons, (Ore.) 39 P. 6; adversely to appellant's contentions, the law applies to Territorial rights; Worland v. Davis, 223 P. 226; the evidence shows intent to abandon; Kinney 1849, 1855; Anaheim Co. v. Ashcroft, (Cal.) 94 P. 613; State v. Quantic, (Mont.) 94 P. 491; Power v. Flood, (Cal.) 199 P. 315; Territorial rights are controlled by the Constitution and laws, Art. 8 Sec. I; Willy v. Decker, 11 Wyo. 496; Moyer v. Preston, 6 Wyo. 308; Farm Inv. Co. v. Carpenter, 9 Wyo. 110; Burgman v. Kearney, 241 F. 884; Milling Co. v. Irri. Co., (Colo.) 156 P. 140; Kersenbrock v. Boyes, (Nebr.) 145 N.W. 837; water belongs to the State, Sec. 8 Comp. Stats.; municipal corporations may appropriate; Art. 13, Sec. I., Const.; a water right is defined by 832-833 C. S.; storage rights are defined by 804-870 C. S. The appropriator acquires a right to use, Cleary v. Daniels, (Utah) 167 P. 820; with a somewhat enlarged privilege of disposing of stored waters; Kinney 773-846; Copeland v. Co., (Cal.) 131 P. 119; Gunnison Co. v. Co., (Utah) 174 P. 852; Sherred v. City, (Ore.) 125 P. 826; Schlosser v. Co., (Ariz.) 65 P. 332; Prosole v. Co., 140 P. 720. A city has no authority to sell purified sewage; Pulaski Co. v. City, (Colo.) 203 P. 681; the authorities are, however, in conflict as to the dominion and ownership of stored waters; Kinney 1150, 1367; Fort Morgan Co. v. McCune, (Colo.) 206 P. 393; Kinney 907-661; Comstock v. Ramsey, (Colo.) 133 P. 1107; Rio Grande Co. v. Co., (Colo.) 191 P. 129; Creek v. Co., (Mont.) 38 P. 458; Manning v. Fife, (Utah) 54 P. 111; flood, storm and waste water belong to the stream of which they are tributaries; Kinney 653, Long on Irrigation 234; Midway Co. v. Co., 67 F. 423; the Edward and Holt cases do not support the city's contract; it could not contract away its police power; Ry. Co. v. City, 52 L. ed. 630; City v. Roemer, 141 N.W. 250; Hamilton v. City, 33 N.E. 1007; it is void in attempting to grant an exclusive right; 1830 C. S. Cas. Co. v. City, 52 L.Ed. 257; Miller v. Ammon, 36 L. ed. 759; People v. Board, 122 Ill.App. 40; Norbeck v. State, 142 N.W. 847; Ellis v. Batson, (Ala.) 58 So. 193; it purports to create a perpetual right, and is therefore void, City v. Water Works Co., (Ore.) 181 P. 864; State v. Co., (Minn.) 83 N.W. 32; it is void in attempting to confer a right on appellant to divert this sewer water from Crow Creek; Comstock v. Ramsey, 133 P. 1107; Reservoir Co. v. Co., 191 P. 129; application for a permit is not an essential basis for a water right. Nothing may be found in our Constitution or laws making a permit a condition precedent to a lawful appropriation, nor defining the term "Appropriation." Appropriation by diversion and actual use confers the right; Moyer v. Preston, 6 Wyo. 308; Investment Co. v. Carpenter, supra; Willey v. Decker, supra; Morris v. Bean, 146 F. 423; Beers v. Sharp, 85 P. 717; Kinney 1216; Laws 1919, Chap. 18; an appropriation may be acquired without application for a permit; Kinney 2460; Secs. 3252-54 Rev. Codes of Idaho. The Idaho laws are largely based on Wyoming statutes; Nelson v. Parker, (Ida.) 115 P. 488; see also Power Co. v. Irrigation Co., (Idaho) 133 P. 655; Sugar Co. v. Goodrich, 147 P. 1073; Reno v. Richards, (Ida.) 178 P. 81; methods of appropriation are not exclusive; Farmers Co. v. Co., (N. M.) 213 P. 202; Haight v. Constanich, (Cal.) 194 P. 26; Kendall v. Joyce, (Wash.) 93 P. 1091; Patterson v. Ryan, (Utah) 108 P. 1118; Sowards v. Meagher, (Utah) 108 P. 1112. The evidence established a prescriptive right under the Bolin ditch. The decree of 1888 did not prescribe acreage nor attach the right to any particular lands. Appellant had no water rights prior to 1909, and it cannot question rights acquired by respondent prior thereto; Schwartz v. King, (Colo.) 172 P. 1054; errors alleged in refusing to strike portions of the petition or rulings on admissions or exclusion of evidence were not prejudicial, 4 C. J. 804; if the city is a necessary party the appeal should be dismissed, 3 C. J. 1216; Lidfors v. Pflaum, (Ore.) 205 P. 277.

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

OPINION [236 P. 765]

[33 Wyo. 20] KIMBALL, Justice.

This action involves rights to the use of the waters of Crow Creek, a stream rising west of the City of Cheyenne, and flowing in a general easterly direction through that City and through lands owned by the Hammond Packing Company and the Wyoming Hereford Ranch. The plaintiff, the Wyoming Hereford Ranch, and the defendant, [33 Wyo. 21] the Hammond Packing Company, are appropriators of the waters of said Creek for the purpose of irrigation. The City of Cheyenne, another defendant, is also an appropriator of said waters to which it is conceded to have the first right. The city's only connection with the case grows out of its contract with the Packing Company for the disposal of the city's sewage. See, this case on motion to dismiss appeal, 222 P. 1027. Other defendants were, at the time of the commencement of the action, tenants of the Packing...