Yentzer v. Hemenway
| Decision Date | 19 April 1968 |
| Docket Number | No. 3632,3632 |
| Citation | 440 P.2d 7 |
| Parties | Ellen Marie YENTZER, Paul F. Reinke, Jeanette Reinke, Fred E. Reinke, and Luella E. Reinke, Appellants (Contestees and plaintiffs below), v. Ruth Gonder HEMENWAY et al., Appellees (Contestants and defendants below). |
| Court | Wyoming Supreme Court |
James A. Greenwood, Roseburg, Or., for appellants.
Leonard McEwan, Sheridan, for appellees.
James E. Barrett, Atty. Gen., Edward L. Grant, Asst. Atty. Gen., Thomas E. Cahill, Sp. Asst. Gen., Amici Curiae.
Before HARNSBERGER, C. J., and GRAY, McINTYRE, and PARKER, JJ.
This appeal is a culmination of legal action by junior appropriators of irrigation water seeking to have partial abandonment declared against holders of senior rights, the initial action being taken as a contest under the provisions of § 41-48, W.S.1957, with certain departures therefrom by stipulation of the parties. That contest resulted in declarations of abandonment in certain situations and some of the appropriators against whom abandonment was declared thereafter filed a petition under § 41-53, W.S.1957, for a de novo hearing of the controversy before the district court, which resulted in modifications of the board's order of abandonment. By reason of the statutory wording concerning the proceedings, the denomination of the parties has not been uniform in the previous hearings and not all of the original contestees are now before this court. However, for clarity all those who sought abandonment will be designated as appellees and all those whose rights were sought to be abandoned will be denominated as appellants although this term when used pertaining to the parties before the board and trial court must be taken to include persons additional to those who are presenting the appeal here.
In October 1963 the Last Chance Ditch Company and Peralta Ditch Company petitioned the State Board of Control for declaration of partial abandonment and reduction of water rights through the Big Goose and Beaver Ditch with a Territorial Appropriation, Priority August 29, 1885, alleging that portions of the water had not been beneficiary applied for the past five years, that extreme waste of water had resulted and water had not been applied to lands as adjudicated, and that petitioners would be benefited by a declaration of abandonment. On November 22 this was referred to the Superintendent of Water Division Number Two for hearing. Subsequently appellants, appropriators of water through the Big Goose and Beaver Ditch, moved to reject and dismiss the petition, and on April 14, 1964, an amended petition was filed by appellees, the individual owners of adjudicated water rights under the Last Chance and Peralta companies. On June 26 counsel for both sides stipulated that hearing before the water division superintendent, provided by § 41-49, W.S.1957, was waived and the parties agreed that a full hearing should be held before the State Board of Control August 31, 1964. This hearing continued through September 3, 1964, and some months later, on January 7, 1966, the State Board of Control entered its findings, conclusions, and order, which, insofar as it affected appellants, held:
Yentzer appropriation for land designated 'AC' (2.85 cfs for 200 acres), abandoned.
Yentzer appropriation for land designated 'F' (9.15 cfs for 640 acres), 4.30 cfs for 301 acres, abandoned, 4.85 cfs for 339 acres remaining.
Yentzer appropriation for land designated 'BH' (4.51 fcs for 315 acres), 3.22 cfs for 225 acres abandoned, 1.29 cfs for 90 acres remaining.
Reinkes appropriation for a portion of the land designated 'AF' (9.14 cfs for 640 acres, of which acreage F. and L. Reinke owned 40 acres and P. and J. Reinke owned 120 acres), 3.14 cfs for 220 acres (including the 40 acres owned by F. and L. Reinke and 38 acres owned by P. and J. Reinke) abandoned, 6.00 cfs for 420 acres (of which P. and J. Reinke owned 82 acres) remaining.
F. and L. Reinke appropriation for a portion of the land designated 'AH' (5.50 cfs for 385 acres, of which acreage Reinkes owned 168 acres), 1.96 cfs for 137 acres (of which Reinkes owned 10 acres) abandoned, 3.54 cfs for 248 acres (of which Reinkes owned 158 acres) remaining.
On March 4, 1966, appellants, under the provisions of § 41-53, filed in the district court a complaint and petition alleging, inter alia, that the board was without jurisdiction or authority to base its order and demanded that the court hold a hearing de novo on the action of the board set out in its January 7, 1966, order, that upon such hearing the court find and decree that the appellees take nothing by their action and that the board's order be vacated and set aside insofar as the water rights of the appellants were concerned. One of the appellants' grounds for relief was:
'The evidence affirmatively disclosed that at all times during the five year period upon which the Board's action was based (1959-1963), these plaintiffs used upon their respective lands all the adjudicated water that was available to them but that part of the time in each irrigation season, particularly during the months of July and August, there was never sufficient water available to completely utilize the adjudicated appropriation * * *.'
In their answer, appellees claimed that the appellants failed to state a cause which entitled them to relief and prayed for dismissal. After a stipulation of the parties that the record of the board's hearing, together with exhibits, be sent to the trial court, the appellees moved to dismiss the action on the ground that the court lacked jurisdiction in that appellants had not complied with either statutory or civil procedure requirements for the taking of an appeal nor within the time provided by § 41-53 and had not filed an appeal but attempted to maintain an original action. Appellees' motion was overruled and a pre-trial conference held at which time the parties and court agreed that due to the time of filing neither the Wyoming Administrative Procedure Act nor the rules relative thereto were applicable. It was stipulated by and between counsel that the case should be tried and determined by the trial court solely upon the record as it had been made before the board and under the pleadings filed in the case, without the introduction of any further testimony or evidence. On April 19, 1967, after a trial on that basis, the court's order was entered in which it was found, inter alia, that the appellees could be benefited by the abandonment or partial abandonment of the water rights as they had requested and that the original and amended petition filed with the board was sufficient to entitle them to a hearing; and with certain amendments, the order as it affected the parties before the court was affirmed. 1 The trial court also ruled that in those instances where there were overlapping or two appropriations of water for the same land, the landowners should formally relinquish one of the appropriations.
The amendments as they affected the appellants were:
Yentzer appropriation for land designated 'AC,' 1.14 cfs for 80 acres declared abandoned, 1.71 cfs for 120 acres remaining.
Yentzer appropriation for land designated 'F,' 2.67 cfs for 187 acres declared abandoned, 6.47 cfs for 453 acres remaining.
Yentzer appropriation for land designated 'BH,' 1.71 cfs for 120 acres declared abandoned, 2.80 cfs for 195 acres remaining.
F. & L. Reinke appropriation for land designated 'AF' by the trial court but from the description obviously pertaining to 'AH,' the abandonment decreed for 10 acres ordered stricken.
Appellants urge that the judgment should be reversed for the following reasons:
1. The amended petition failed to state facts sufficient to entitle appellees to a hearing before the board.
2. The amended petition disclosed on its face that the board had no jurisdiction to grant a hearing or enter an order declaring any of the appellants' water rights abandoned.
3. The record showed the court was without jurisdiction to do anything except enter its order dismissing the appellees' amended petition.
4. Neither the board nor the court had jurisdiction to enter an order attempting to modify or alter the certificates of appropriation of the appellants' water rights as adjudicated.
5. The evidence in the record failed to establish clear and convincing evidence that any of the appellants' water rights had been abandoned.
6. Neither the board nor the court had jurisdiction to enter an order eliminating from the appellants' certificates of appropriation any of the lands described in said certificates.
Points one, two, three, four, and six, directed to the sufficiency of the pleadings and procedure, and more or less related, and we will consider them first.
In their argument, appellants assert that while the statutes provide only for 'water users' to bring an action for declaration of abandonment of existing water rights, the case was originally filed with the board by the two corporate ditch companies and they challenge the amended petition, filed with the board by twenty individuals, arguing that even the appellees say that in the one petition there were as many cases as there are appropriations involved, perhaps forty or fifty distinct cases. Appellants maintain that the filing of the amended petition by these multiple parties constituted a misjoinder, that the petitioners had separate and distinct interests adverse to each other, no interest in common, and that this was unauthorized by any statute, insisting that §§ 41-48 and 41-49 do not contemplate nor provide for such a proceeding, the objections were made and overruled, and that the board was advised that by appellants' participation in the hearing before the board they did not abandon their position and contention. They also say that the stipulation to dispense with the preliminary hearing before the superintendent did not attempt to modify or change the requirements of the...
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