76 P. 917 | Wyo. | 1904
This action was brought by the plaintiff in error in the District Court sitting in the County of Johnson for the
Answers were filed by all the original defendants, with the exception of Alice S. Rapelyea, and, after their substitution, in the place of defendant Carpenter, the defendants Gallup filed a separate answer substantially similar to the answer of their predecessor in interest, but containing a prayer for affirmative relief. It appears that the appropriation to which they had succeeded and the appropriation claimed by the plaintiff were made by means of the same irrigating ditch and by the same party, one E- U. Snider, who formerly owned the lands claimed by the defendants Gallup and the plaintiff, respectively, and that whatever water right they had and have, so far as this suit is concerned, was acquired through Snider. And, claiming to have succeeded to the title of Snider in that ditch, the defendants Gallup prayed that the title thereto be quieted in them as against the plaintiff. The ditch had been constructed by Snider and others jointly, and it is admitted that he owned an undivided one-half interest in it. Snider had entered the land now owned by plaintiff under the desert land act, and the lands now owned by the Gal-lups as a- homestead, and ■ had obtained a patent for both tracts, and, having separately mortgaged both tracts, and defaulted in the mortgages, the lands were sold upon foreclosure, and Mary E. Carpenter became the purchaser of the homestead tract,- and the plaintiff of the other. Subsequently, and after the commencement of this suit, Mary E. Carpenter conveyed her premises to the Gallups. The
The cause was tried and there was a general finding for the defendants, but the court also found specially that the said Snider had, by his mortgage’ of the homestead to Bacon, conveyed to the latter all his interest in and to the ditch referred to, and that the defendants Warren Gallup, James D. Gallup and Garret B. Gallup were the owners of that interest and entitled to have their title quieted. Judgment was thereupon entered denying the relief demanded by the plaintiff, quieting- the title of the defendants Gallup in the ditch and awarding them a judgment for their costs against the plaintiff, and it was ordered that the other defendants go hence without day and recover their costs from the plaintiff. That judgment is before this court for review on error.
The plaintiff’s evidence was confined to a showing of the extent of the use which had been made of the ditch and the water conveyed therein in the irrigation of its land, evidently relying upon certain admissions and allegations of the answers to establish the other elements necessary to the proof of its alleged right. The petition alleges that on April 18, 1879, Elias U. Snider entered the land claimed by plaintiff under the desert land act, and immediately thereafter conveyed water thereon for the purpose of cultivating the same from a stream known as French Creek and its tributaries, and constructed a ditch from said creek to, upon and through the land, for the purpose of properly irrigating it, and became the one-half owner of the ditch called “Snider Ditch No. 1,” having a capacity of eight cubic feet of water per second of time, and that the ditch was necessary in conveying water from said stream to and upon the land aforesaid. It is alleged that Snider was the first áppro-priator upon the stream, and that the water so appropriated had been necessarily, continuously and openly used without interruption in the irrigation of the land of plaintiff. It is
The separate answers of the several defendants admit that at or about the time stated in the petition the said Snider constructed Snider Ditch No. 1, for the purpose of irrigating the lands of plaintiff, but deny that the ditch was constructed or used exclusively for that purpose, averring on the contrary that the purpose was also the irrigation of other lands owned by certain of the defendants ; and the defendants Taylor, Hart and Foster allege that the ditch was constructed jointly by Snider and one Ver ling K. Hart, deceased, the latter owning a one-half interest therein for the purpose of irrigating certain lands now owned by said last named defendants. It is further admitted by the answers that the plaintiff is the owner of the lands claimed by it in the petition, and of all the water rights pertaining thereto, if any, and that its title to such lands and water rights was derived from the said Snider. It is denied that the waters of French Creek were ever used upon plaintiff’s lands to the extent of eight cubic feet per second, or in excess of two cubic feet. But the answer of defendants Gallup deny that such waters were so used in excess of one cubic foot. It is alleged in the answers that Snider was interested in two other irrigating ditches taking water from Clear Creek, .from, which the lands of plaintiff were chiefly irrigated, and that only a small portion of such lands were ever irrigated by water from French Creek, and that the extent to which such lands were irrigated with water from the last named stream did not exceed seventy acres as alleged by the defendants Gallup, or 140 acres as alleged by the other defendants. Neither of the defendants allege any abandonment of the use of the water upon plaintiff’s land. Each defendant
It is true that the defendants showed that the water carried upon plaintiff’s land through the ditch was chiefly Clear Creek water, which in some unexplained manner was taken into French Creek and from there flowed into Snider Ditch No. 1. One witness gives as the reason therefor that most of the water naturally flowing in French Creek was taken out by persons further up the stream.' The tendency of the evidence, however, is to show that French Creek naturally supplies only a small quantity of water. But it does not sufficiently appear that none of the waters of French Creek were carried upon the land of plaintiff, to
Now, it is clear that whatever the extent of plaintiff’s right on French Creek, if it had any right at all, it is superior to that of the defendants not taking water from the so-called Snider Ditch, since their answers show subsequent appropriations, and admit the appropriation of plaintiff’s grantor, and the continued use of the water on plaintiff’s land to a limited extent. And the other defendants, all of whom use the Snider Ditch, make similar admissions in their pleadings, while alleging priority of right as against the plaintiff; but to establish that priority they introduced in evidence and relied upon certain conveyances deemed sufficient to vest in certain of the defendants all the interest that Snider originally possessed in the ditch through which the appropriation for plaintiff’s land was acquired, and hence sufficient to deprive the plaintiff of any ditch or conduit for conveying the water upon its land, and to render it incapable of asserting a water right, upon the principle announced by this court in McPhail v. Forney (4 Wyo., 556), that it is necessary to the creation and preservation of a water right to provide means for the continual diversion of the water from its natural channel, and that a party cannot arbitrarily seize and use another’s ditch, or interest in a ditch, for that purpose.
It becomes important, therefore, to consider the. effect of such conveyances. The mortgage executed by 'Snider upon his homestead, following the description of the land,' contained these words: -“together with all 'my right, title and interest in and to the Snider Ditch No. 1, the same
It is to be observed that the deed from Carpenter to Gallup makes no specific reference to Snider Ditch No. 1, nor any other ditch by name. There is no attempt by that deed, judged by its terms, to dispose of. or convey any particular interest in the ditch disassociated from its character as an appurtenant or belonging to the land' conveyed. To bring all of Snider’s original one-half interest in the ditch within the operation of that deed, it is plainly essential that it be shown that it had become an appurtenant to the land, or belonged to it — that it was all acquired and held as necessary or at least as convenient to the proper diversion and use of the water appropriated for that particular tract. Yet there is no averment or proof to the effect that Snider’s entire interest in the ditch was ever exclusively used or was necessary for the irrigation of the homestead.' On the contrary, it appears that his interest was acquired and .used for the purpose of conveying water to the lands embraced within both his homestead and desert land entry. In the answer of defendants Gallup, the present owners of the homestead, it is alleged: “that at the
The above considerations compel us inevitably to hold that it was error, upon the facts in the case, to quiet the title of the defendants Warren, Garret B. and James Gallup to an undivided one-half interest in the ditch. While the defendants failed to show themselves entitled to affirmative relief, the question remains whether the plaintiff established añ existing water right. The court found that it had not; ■ and that finding • was evidently based upon the theory that by the moidg-age to Bacon of the homestead premises' Snider conveyed his entire right and interest in
The mortgage itself does not define the extent of the grantor’s interest, nor the character of his title, and, from all that appears in that instrument, he might have been the sole owner. Upon extrinsic inquiry, .however, it is learned that his right was limited to an undivided one-half interest, which was acquired by joining in the original construction of the ditch. That fact is admitted by the parties, but it is further admitted that the ditch was constructed for the purpose of irrigating both tracts of the mortgagor’s land— that now owned by plaintiff and defendants Gallup, respectively, and that such purpose was actually consummated; that both before and after the execution of the mortgage the mortgagor used the ditch for conveying water upon the land of plaintiff, as well as that of defendants, and that it continued to be so used after the passing of his title in the lands to other parties. The instrument should be examined in the light of these facts. (Frank v. Hicks, 4 Wyo., 502.) In view of the descriptive words following the mention of thé ditch, we regard it as significant that the mortgage does not in explicit terms convey an undivided one-half interest. Had the reference to the grantor’s right, title and interest in the mentioned ditch been followed by such words, without more, as the following: “the same being an undivided one-half interest,” there would be little difficulty in understanding the intention, in the absence of extrinsic circumstances. Such words would be clearly descriptive of the thing con
It is to be remembered that the instrument was a mortgage, and, until 1893, the mortgagor retained possession of both tracts, apparently enjoying them as part of one ranch or farm; and that to some extent the ditch and its connected water right had become appurtenant to the land subsequently coming into the possession of plaintiff. (Frank v. Hicks, supra.) The clause in the mortgage referring to the ditch discloses a purpose to carry with the land described an appurtenant water right, rather than a specific property independent of or additional to the land, or something which was an appurtenance to other lands. The descriptive words are to be construed as defining with greater particularity the interest or estate intended to be conveyed. The sense in which the words “the same being” were employed will, we think, be better understood by transposing them so as to read, “being the same,” whereby the true intention would appear to be expressed, and the interest to be conveyed clearly defined as that which' was being used and necessary in irrigating the land. It is argued that the reference to the use and necessity of the ditch property or interest amounts to a statement by the grantor that all of his property in the ditch was used and was necessary for
Finally it is contended that the plaintiff was properly denied any relief on the ground that there was a failure on its part to prove that there would be a residue of the Snider half interest in the ditch beyond that required for the water right appropriated for the land described in the mortgage. It is true that the evidence is not very specific on that point. But it is admitted by the pleadings that the ditch was built in the first place for the purpose of appropriating water for the land of plaintiff, and that water was thereby applied to that land; and the allegation of the petition that such appropriation was continuously and openly used is denied only to the extent that not more than one cubic foot was so used, and not to exceed seventy acres were irrigated from French Creek. The evidence, while not very definite respecting the number of acres irrigated from the last named stream, or the quantity of water continuously used, does tend to show a use of the ditch in various years, although the larger proportion of the. water conveyed through it upon plaintiff’s premises seems to have been drawn from Clear Creek after it had been diverted into French Creek. There is no explanation of the manner in which the waters
For the seasons set forth, the judgment will be reversed, and the cause remanded for new trial. Reversed.