*1 211 Condict, Estate of W. C. Aurilla P. as Executrix of the Maysel Condict, Deceased; Condict, H. Aurilla P. Con dict, dict, Condict, Jr., Winthrop Alden Revelle Con C. legatees Winthrop residuary devisees and as Condict, Deceased; State Board Control C. Engi Wyoming; Bishop, State and L. C. as State neer,
Appellants, below) (Defendants vs. Ryan, A.
Cecil
Appellee, below) (Plaintiff (2d) 684) 1958; Pac. (No. 2827; 16th, December *2 upon appellants, the was submitted For the cause Chey- Greenwood, Bloomfieldof Ferrall & the brief argument Wyoming, A. enne, Greenwood. Mr. James and oral appellee, was submitted For the cause Wyoming, Rawlins, brief of Brimmer & Brimmer argument by Brimmer, Jr. A. Mr. and oral Clarence *3 Harnsberger Blume, Heard before C. J. Parker, JJ.
OPINION opinion the Mr. delivered Justice HARNSBERGER the court. sought Ryan adjudication he A. Plaintiff Cecil reservoir, ex- to the the entitled owner a is sole impounded right the waters clusive to use and control allocating enjoin from to authorities therein and State distributing any to others. reservoir waters or the jury without and deter- the case
The court tried owner; the entitled to plaintiff the mined was sole permit possession the reservoir and exclusive together ap- constructed, with the under which was impounded there- propriations made and of waters allocating the enjoined under; officers from the State judgment gave impounded to аnd waters others against defendants, accordingly, now who costs with appeal from same. collectively appealing referred to parties will be defendant, appellant appellant or as Condict.
as August 1910,
The evidence shows that on Edwin Ryan Ryan, brothers, E. and application A. filed Cecil Engineer permit with the State for a to build a reser- unappropriated to voir store waters of State specified therein, “The to use which the water tois be applied supplemental supply Ryan-Foreman ais to the Ditch”, required by as this information was W. § C.S. 1910. July 7, 1911, granted
On application was as Per- Engineer mit #2134, and the State endorsed at the end original application reading his certificate part as follows: certify “This to foregoing that I have examined application grant hereby subject and do the same following Primary limitations and conditions: Permit, Secondary See Permit above.” #8112. #See January #8112, 14, 1908,
Permit ap- dated pended “Application an for a Permit Divert and Appropriate the Water of Wyoming” the State of Ryan made E. Foreman, Edwin M. Daniel in that stated, it is “The land be irri- gated acres, has area of 617 total described as fol- *7 * * descriptions lows: following The of the lands belongеd show 272 Ryan, acres which to Edwin E. 38 belonged Ryan, acres which to Cecil A. 197 acres which belonged Foreman, to Daniel M. and 110 acres which belonged to D. M. Foreman. engineer’s The endorsement on Permit also #2134
specified completion 31, a 1913, date December but appears thereafter that date was extended several 31, times to the final of December date 1925. On De- 17, 1925, Engineer cember a letter from the State acknowledges receipt plaintiff from the of a notice completion of of the reservoir “under the conditions
219 permit After the reservoir of Permit No. Res.” 2134 granted, preliminary reservoir on the work was some Ryan, by E. plaintiff Edwin and his brother was done entirely which is not and extent of the exact nature although evidence, it seems evident clear from the around the they surveying, calipering trees some did dug kill, a trench would small that the water .reservoir inch out, laid a the creek came and where natural on it that pipe put head in concrete trench and a the part completed The balance dam. remained the not until work was done of the dam construction 1924 or 1925. summer fall either agree was the reservoir plaintiff seems one- Edwin then owned one-half his brother testimony. repeated by himself, as that his half was signed Reservoir”, The “Proof of Construction Engineer by plaintiff, filed the State not with was con- 27, July That stated document until 1954. 7, July begun prior to struction of the reservoir was although 1924, completed 29, 1912, and was October completion a mis- date was plaintiff testified that Except completed in 1925. was take as the reservoir not already it is mentioned preliminary work for Ryan participated in sub- that Edwin E. shown water was sequent The first work on the reservoir. irrigation for impounded stored in the reservoir year purposes in the 1926. Ryan
Commencing and his wife 1916, Edwin E. lands, mortgages ranch on his a seriеs of executed in Permit included the lands described of which some given mortgages de- either were These #8112. predecessors Condict, Winthrop or his fendant mortgage dated March The final interest. all included of land and acres mortgaged. previously
lands *8 mortgages by These were decree foreclosed court 1926, 3, mortgaged prop- dated June and a sale of the mortgages erties ordered. In none of the fore- closed, confirming Eyan or in the order sale of the “appurtenant” lands to Condict was the word in used covering referring phrases laterals, water, wa- rights, rights ter or ditch ditches which followed the legal description given, although certain ref- of such “appertainant”, “ap- erences used the word or words: pertaining belonging to”, “belonging into”, “being or upon”, anywise appertainant”. used and “in The sher- February 4, 1927, however, iff’s deed dated used the “appertaining any words to”. in in- Nowhere of the impounded struments or order is the reservoir or its special significance waters mentioned. We attach no “appurtenant” to the except failure to use the word any the absence of use its forestalls conclusion being It, therefore, based it. follows that we should look to the faсts and circumstances surround- ing pledging property security as for the money debt properties to determine what were intend- parties hypothecated. ed to be July Engineer
On the State an received “Assignment entitled, instrument Permit”, wherein signature over Eyan” “Edwin it E. is stated that Eyan being Edwin E. a co-owner the reservoir question in consideration of one dollar and other valu- assigns uable right, consideration transfers all his title and interest of whatsoever nature to reservoir irrigation pertaining and all works thereto to Cecil Eyan. A. At the appears end of this instrument there might what acknowledge- have been intended аs an ment, person having ap- but does not name as peared taking is, before the officer the same and therefore, although sufficiency, of doubtful the “As- signment” was recorded the office the local coun- *9 1927, filed January 18, marked as ty and is clerk on 28, Engineer July 1927. on in the office of the State acknowledgement the defective It would seem that ineffective as constructive rendered the instrument assignor anyone other than notice of its contents to notwithstanding assignee, the fact that was and the Hicks, recorded, Frank v. laid down in so if the rule 477, 502, 513, There Wyo. followed. 35 P. is be informality speaking of execution the court of the acknowledgement, said: a deed and defective its executed, defectively question “The trust deed in was Although recorded, record. not entitled to was any one of notice the record was not constructive legal mortgage, effective but is not a its contents. It is * *” mortgage.* equitable parties as an between assignment Ryan make the This rule would seem to intervening right against the case ineffective as this acquired by application to beneficial appellant his lands, ap- upon as his use the reservoir waters right any pellant notice that adverse was without аp- being asserted. the use of those waters was right perfect his pellant consequently free to left thereby he their lands. This did use his lands, appurtenant to those became waters right appurtenance which Cecil this anteceded assign- attempted Ryan may by of the have virtue A. ment from his brother. ques- important reason to more
But there is an even by judgment appear that which will tion the as hereinafter discussed. Engineer July 28, directed the State
On “regardless trans- that a deed was issued of the fact right con- ferring from the reservoir waters this [to per- Res.] structed under Permit to some other #2134 son, which deed, deеd is in conflict with the Sheriff’s property which Condicts”, transfers this to the regulated waters from the reservoir be to the lands they originally were intended to cover. May 12, 1955,
On the State Board of Control of the Wyoming State of ordered: Winthrop THE MATTER of the contest of the “IN. against proof Condict Estate allowance of the of con- Ryan struction submitted Cecil A. for construction Ryan [the Bros. Lake Reservoir reservoir in question] tributary on Lake, North Twin of North tributary Creek, Twin Lake under Permit 2134 Creek, Brush South *10 August priority Res., 26, with of proof 1910, the of construction under Permit 2134 accepted Res. be and that the issuance of a Certificatе ownership of Construction be withheld until the of Ryan by Bros. Lake Reservoir is determined competent jurisdiction; Court of interim, “THAT in the the Water Commissionershall continue to divide the water stored said reservoir fifty-fifty Ryan Winthrop on a basis CecilA. and the Estate, Condict as heretofore;” has done he appeal On to the district court from this order that 8, 1956, court on June ordered the of Board Control to “issue its Certificate of Construction under the application 2134, for Reservoir, Permit to construct ‘Ryan Bros. Lake Reservoir’ in the names of Edwin Ryan Ryan”, prejudice E. and Cecil A. without to the any person party “claim of or to use water stored in by the reservoir covered the Certificate”. findings main,
In the the trial court’s of con- fact although form to recounted, the evidence here its statement that “There is some evidence that the land irrigated year by was Condict, some extent that Mr. from the impounded water that no the court finds but Edwin on the use applied to a beneficial reservoir was 28, July 1927” or after Ryan until on E. Ranch quoted to in the inquiry. year referred open Upon examination year testimony 1926. was the testifying plaintiff, while record, we find that used was first water when reservoir as to the time lands, said, Ryan ranch E. on the Edwin Condict “Well, you it is ’26”. I’ve told findings, concluded as
Having the court made these of law: a matter “* * * personal permit 2134 was a No. that reservoir not become
right appurtenant constructed applicant and could vested in the reservoir after lands until applied to a ben- therefrom and the water priority. regardless of date use on such lands eficial 394)” Rights 393 and (See 3rd Ed. Sec. on Water Weil to be distin- instant case the court found the And 436, Wyo. Sturgeon Brooks, 73 guishable v. from Sturgeon the reservoir case in the P.2d because permit and the primary completed under had been certificate use and a apрlied to water beneficial secondary permit obtained as appropriation under citing 1910. by statute, provided W.C.S. § then course, time is, that at the clear It *11 Chap- made permit reservoir was to for construct governed the 1910, 59, in force and ter W.C.S. permits. 744 Section procedures reservoir to obtain chapter provides: of that subject chapter be shall applications under this “All inclusive, and provisions to 737 of 728
to the §§ §§ authority of 826, 827, and forth the duties which set protection engineer of provide for the and the state rights applicants; Provided, the tion of That an enumera- any proрosed irrigated to lands be under this chapter The required primary permit. shall not be in the party parties proposing apply or to to a beneficial use the water stored in such file reservoir shall engineer application permit, with the state an for secondary permit, compli- be known herein as the provisions §§ ance with the 727 to 737 inclusive. application Said supply shall refer to such reservoir for a engineer ap- of water and the state shall not prove application secondary permit the said and issue applicant until the thereunder shall show to such state engineer by documentary evidence that he had en- agreement tered into an voir for a with the owners of the reser- permanent and sufficient interest in said impound enough purposes reservoir to water for the application. set forth in said When beneficial use has completed perfected secondary been permit and under the said superintendent proof the division shall take the permit of the water user under such and the final appropriation certificate shall refer to both the secondary permit ditch described and the reser- primary permit.” voir described in thе requires §The 728 referred to that “In case the proposed right agricultural purposes, of use for give legal shall subdivisions of land proposed irrigated, acreage to be with the total to be may reclaimed, be”, §§ as near as 737 con- Engineer cern the duties of the State where water rights applied approval applications for; are thereon; and their endorsement the additional infor- completing pro- furnished; mation to be the time for posed irrigation appeals; maps work; filed; to be Engineer’s requirements examination of the same and description plans. for аdditional Sections plans authority dams, 826 and 827 refer to for for Engineer inspect requests inspection. for § third sentence of 744 has reference instances party where the reservoir is owned a different than *12 water, applying impounded one for use of has the litigation. bearing upon no matters involved this 744, supra, only to the statute relative Section is being find reference made to reservoirs in which we “secondary” permits. “primary” A careful read- ing mention here convinces of all the statutes which we contemplates authority primary permit the that the reservoir, a while a sec- from the Stаte to construct authority appropriate ondary permit to is the State’s to impounded waters in a reservoir beneficial use. the applicant to direct flow is re- an use waters While quired whereon the are to the lands waters describe expressly used, supra, relieves reservoir to a be § proposed applicant to from enumeration of lands irrigated impounded reservoir In the waters. be from primary permit consequence, application the for reservoir, prescribed form the made on the construct Engineer 1910), (§728, not by did State W.C.S. the irrigated which from waters set forth thе lands be However, impounded the when would be reservoir. primary permit that was consid- the for granted subject express ered, an condition. it was condition, Secondary in that The words used “See meaning. above”, can have one Permit but #8112, #See Bearing secondary permit the au- in mind that is applicant appropriate thority the to the from State reservoir, reference impounded in the the waters undoubtedly meant Secondary Permit “See #8112” only impounded were to be used as waters under provided #8112, for of waters Permit use plainly meant that reference above” the further “#See aрplied to beneficial impounded waters were to be supple- in Permit as a on the lands described use #8112 previously appropriated supply mental to the waters permittees it, the lands of the at least insofar as reservoir, under Permit #2134, owners were interpretation concerned. That this of the con- given by dition which was authority same State imposed which that condition is made evident in the Engineer commissioner, letter of the State to the water *13 July 28, 1927, directed, dated in which it was “You proceed regulate will therefore to the from water this originally reservoir to the lands that it was intended equаl apportionment to cover.” The of the reservoir’s obviously governed by waters was taken to be the original application fact that the for reservoir the permit was made in the of names the two brothers anything without said to show the extent of interest which each would in permit have the reservoir. The being granted upon application nothing that and con- trary appearing,- co-ownership implied their the inter- equal est of each was to the other. This was acknowl- edged by testimony to be the fact Ryan, the of Cecil A. plaintiff. the Primary the
When conditions under which Permit granted given meanings, they are these #2134 making permit have the effect of that the au- State’s appropriate thorization to the reservoir waters supplement appropriated of the waters under Permit practical purposes, In other words for all the #8112. grant secondary permit appropriation became a for waters for reservoir beneficial on lands being primary in Permit #8112, described as well as permit to construct reservoir where such waters impounded. grant were to be The condition of the also to limit the use of the served waters to beneficial application upоn identical lands for which waters previously under Permit had been authorized #8112 appropriated, and the condition made the reser- supplemental supply voir waters a of water for the irrigation only of those lands and none other. agree the trial court’s conclusion can with We ordinarily appurte- water not become law that does application to particular land until after its nant land, permit but when a beneficial that use granted upon condition that a reservoir is construct upon particular impounded used water is to be right lands, of those is not a mere to the use watеrs running right, right personal with the land but is a conveyance passes even in with a land special mention. the absence arising litigation interesting sidelight
An this analyze plaintiff's position with when we disclosed respect The record does not to the reservoir waters. applica- separate plaintiff made a that has ever show apply secondary permit those tion for a waters secondary permit no use there has been beneficial granted purpose it be virtue of him for that unless grant primary imposed in the the condition plaintiff’s only permit. claim to use It follows *14 must, therefore, stem from of waters the reservoir right authority under which defendant’s the identical of waters arises. to the use the concerning litigation of of use the waters this
All importance and the evidence sub- are of utmost State of the closest examination mitted to us received has previous capable, keeping in mind the are which we doing so, In we have pronouncements of this court. expressed impressed by philosophies in Frank the been water-right question Hicks, supra. in that the v. While us, inasmuch parallel to that now before case is not rights rights opposed to flow as it concerned direct as waters, storagе there with re- what was said to still appurtenance spect appurtenant is informative and Wyo. helpful 4 at here. For instance in and somewhat 480, page pointed it pages 521, at out: 35 P. “* * * Upon question right the whether a the use irrigation, together purpose of water for the of with necessary conducting the conduit for the water the place used, appurtenant where is is to the land irri- gated not, irrigation or of the courts the states territories practiced in which is not are in entire har- mony. question But of this statement the too nar- is row to meet the conditions of the case at bar. The meаning discussion should not be confined the or proper nance’. portance words. It ‘appurtenant’ use of the ‘appurte- word or question vastly real one of more im- question proper than a mere of the use of is, substantially, right whether a to the use irrigation land, together of water for the with the making right available, ditch so attached to the land such way becomes in irrigated pass by as to a con- veyance right, mentioning of the land without the water and, subject and to become to the liens liabilities lemd, exemp- attach to the
swhich entitled to the * *” (Emphasis tions to which supplied.) land is entitled.*
Having
directly posed
question
so
as to what
determining
rights
should be considered in
whether
pass
conveyance
to water should
under
of the land
rights
alone without mention
water
the court ob-
Wyo.
page
page
served in
at
In its the record leaves us without parties for a reser- that both to the doubt expected permit it would be for voir intended nothing they owned. There is benefit of the lands then Ryan E. had other idea to indicate that Edwin money and he needed mort- about the reservoir when holdings repayment gaged to secure thе his his mortgages borrowings. were fore- It was not his until satisfy properties debt that sold his closed and his away portion he of that which to carve he moved security of the which pledged the value had and reduce good undoubtedly felt se- interests Condict curity for their loans. said, conclude that a we what has been
Because of together reservoir, with in the interest one-half impound- beneficially of the waters right one-half use Ryan described Edwin E. lands ed therein Ryan E. property of Edwin #8112, was in Permit mortgaged said lands wife time he and at the his interest; predecessors in or his the defendant Condict mortgages of the forеclosure virtue loaned to Ed- payment of monies given to secure *16 230 Ryan,
win E. and the sheriff’s deed to defendant Winthrop pursuant thereto, Condict the defendant Winthrop Condict became owner the lands de- in scribed said deed and aof one-half interest in the Primary reservoir constructed under Permit #2134 granted by Engineer Wyo- the State of the State of ming July right 7, 1911, and of to use one-half of lawfully impounded stored, the waters or to be lawfully impounded reservoir, stored such application upon Quarter beneficial the Southeast Quarter Fifteen, Section the Southwest of the South- Quarter Fourteen, west of Section the Northeast Twenty- Quarter Quarter of the Northeast of Section Quarter two and the Northwest of the Northwest Twenty-three, Township Quarter of Section inall Six- Range Eighty-three, teen, North West of the 6th that, Wyoming; Principal Meridian, the title of lands, defendant to Condict said reservoir and water rights superior any rights anteceded and was under assignment attempted and transfer Edwin E. Ryan Ryan A. a Cecil one-half in the interest rights impounded. reservoir and to waters therein requires The decision thus reached attention to the question plaintiff’s right alternative of the con- defendant-appellee portion tribution from the for a unnecessary matter, of the cost of the This reservoir. judgment, under the trial court’s an issue and is now restored as pass trial court must now question. judgment appealed is, therefore, from herein judgment with
reversed direction in accordance proceed entered; herewith be that the trial court any, required what, ascertain if contribution should be plaintiff by from the defendant to the reason costs incurred in construction of the reservoir and made, allowance, if be shall be included that such hereby judgment directed to be in the entered. with directions. and remanded
Reversed REHEARING FOR PETITION ON 792) 2827; 3rd, 1959; (2d) (No. Pac. March *18 support petition rehearing, In for there was appellee Brimmer, a brief for Wyoming, Rawlins, A.C. Jr. of Laramie, Wyo- and Frank J. Trelease of ming. Blume, Heard before J.C. and Parker and Harns- berger, JJ.
OPINION Mr. opinion Justice HARNSBERGER delivered the of the court. upon rehearing is advanced
Appellee’s petition for mention and grounds. we not said did several It is only 71-613, law This apply 1945. failed to W.C.S. § years five February some became effective gave mortgages Condicts foreclosure the whose after Although the statute reservoir. title to lands and both fully in both brief its was discussed espe- necessary to argument, deemed it not was by virtue cially that it when it was decided mention permit to construct appended to the of the condition waters be and the the reservoir the reservoir both ap- and were impounded with therein were identified the Ryan the time purtenant lands at to the Edwin given consequence, pro- mortgages all In 1916. were to this were ineffective as of the 1921 visions statute question. which interpretation petitioner also the
The claims upon the gave imposing condition we to the words initial an was permit the reservoir construct suggestion is theory advanced. not theretofore very that the record shows novel when the sоmewhat appears intro- was the condition instrument wherein contesting parties and joint by the exhibit duced as findings. It was in the trial court’s mentioned was nature re- of its case but because evidence Although meaning. interpretation quired an of its effort, the court fit to assist us in that side saw neither apparent disposed what was not itself to was blind meaning give which or it the from instrument to us seemed obvious. right purported to show
Petitioner claims 27, 1927, his assignment July Ryan to from Edwin outcome not defective and that brother Cecil pur- depend appeal not on notice such should assignment being given to Condict. Section pоrted *19 234 141, Wyoming, 71-615,
of Ch. 1921, S. L. now § 1945, 27, 1927, July pro W.C.S. was in effect on vides : rights “All deeds for reservoir water and water periods all (3) years leases of the for same of three acknowledged or more shall be executed and as deeds executed, are and shall be recorded the office of County County Cleric of the in which the reservoir Engi- situated and also filed in the office of the State * *”
neer.* This statute was violated as the instrument not was acknowledged executed and deeds as are executed and acknowledged. light Hicks, Wyo. In the Frank v. 502, 475, quoted original 35 P. opinion, as in the it was, therefore, though not effective аs notice even engineer erroneously had been filed with the state county recorded in a It clerk’s office. should be un- necessary say primary purpose that at least one recording giving such was the of notice to all the world, including those subject whose interest in the adversely matter of the instrument would be affected. Nor does the fact that the instrument was received objection efficacy. in evidence without add to its It merely spoke probative for itself but without effect. petitioner’s We do not find contention that Condict attempted assignment had actual notice prior to his оf the reservoir waters beneficial use his lands be borne out the record to which reference is made. argues convincingly length
Petitioner and at some present that under the circumstances in this case there necessity procedures no to follow the outlined statute, applicable the then W.C.S. § as persons intending owners of the reservoir and the impounded they, use its waters were the same and therefore, protection stat- did need the which not *20 of give the holders in where ute intended to cases people. primary permits secondary were different and the agree that petitioner concludes we when And can only. mandatory, How- permissive not statute is but in question presented this ever, there no debatable was secondary a was not law of whether was or suit there appurte- point permit granted. was the decisive Edwin its to the of the reservoir and waters nance mortgaged. The they Ryan the time were lands at conditioning relation in their importance of words the they the reservoir point identified to that was that as those impounded the same lands waters with and its permit. direct flow No. the described Permit deciding pointed the use such out that In it was so applica- to beneficial impounded was limited waters other, and and none on described tion those lands purposes this be- practical that for all was observed of reser- secondary permit appropriation for a came secondary a not that such waters. It was said voir therefor permit necessary substitute or that was required. was comment point consider merits
The final which we assuming as our rule of is that we to follow failed leaving party the the true evidence successful par- opposing the evidence out consideration ty. charge our failure center around seems to This Ryаn's unexplained the statement that accept Cecil wrong”. “worded application Permit for No. explained. testimony On meant is not Just what the hand, in evidence the itself was other ambiguity requiring explanation. presented no eight petition separately under has set forth While seeking headings grounds rehear- relied only ing, supporting points here brief covers therefore, all considered, we, assume that must other contentions have been abandoned. Under these circumstances the rule contended for applica- has no tion.
REHEARING DENIED. PARKER, believing Mr. Justice applica- questions tion raises only which should be resolved after arguments a consideration of the views and counsel, grant rehearing. would