118 P. 653 | Wyo. | 1911
Clark G. Hamp was tried and convicted before a justice of the peace of the statutory offense of willfully interfering with the headgate of an irrigating ditch without authority. He appealed to the district court, where he was again convicted and was fined in the sum of twenty-five dollars and ordered to pay the costs taxed in the case. The complaint or information charges that on the 26th day of May, 1908, in the county of Uinta, the said Hamp did “willfully and without authority, close, change and interfere with the headgate of the ditch known as the Desert Ditch No. 2 and the Hamp Extension Ditch (describing its location), which said headgate and ditch was then and there under the control and regulation of John W. Blackwood, an assistant water commissioner, contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.”
The material facts are as follows: Daniel O. Roberson, the complaining witness, had been granted by an order of the board of control a certificate of appropriation of water from Fontenelle Creek through the ditch in question for the irrigation of land lying under the ditch; the certificate stating that such appropriation had been' duly determined and established by said board of control on the 12th day of June, 1907. John W. Blackwood was appointed an assistant water commissioner in the manner provided by statute for the water district in which said ditch is situated, “for the purpose of aiding the water commissioner of said district, and particularly in the distribution of water from that ditch taken out from Fontenelle Creek in said district and known as Desert Ditch No. 2.” By direction of the superintendent of the water division embracing such district, said assistant water commissioner took charge of the headgate described in the information, and raised and locked it so as to allow the passage of water into the ditch for the use of Roberson in accordance with his certificate of appropriation, and, at the same time, attached to the headgate a notice dated and signed by him in his official capacity, stating that the headgate had been properly regulated by him and was under his control, and that any person interfering with the same would be prosecuted to the full extent of the law. While the headgate was in that condition, and the commissioner remained in control, the defendant broke the lock and closed the headgate. There was testimony to the effect that he also tore off the
The trial court ruled that the question of ownership of the ditch or headgate was immaterial in this case, stating, during the taking of the testimony: “Whether Roberson had any interest in this ditch would not make any difference. This is interference with an officer of the law.” However, a limited amount of evidence was received relating to the construction and use of the ditch and headgate, and the ownership of the land crossed by the upper end of the ditch above the Roberson land, and upon which the head-gate is located; the defendant claiming that a third party owned such land, and that he, the defendant, was the sole owner of the right of way for that part of the ditch. But such evidence is obviously lacking in a showing of all the facts necessary to a satisfactory conclusion, if the matter was to be conclusively determined, and which it may be supposed, would have been shown had the court held such facts to be material. Enough appears, however, to show that both parties had used the ditch, and that there was a dispute between them as to its ownership and Roberson’s right to conduct his appropriated water through the same, or at least through that part of the ditch above his land. The fact was brought out in the evidence that at the hearing before the board' of control resulting in the granting of
The history of the ditch presents some peculiar features. It appears to have originally been built by a former owner of the Roberson land, at that time taking water from a slough which derived its supply from the main'creek; the Roberson land lying under the ditch as originally so con-. structed. ’ Subsequently Hamp, whose land was below the' land of Roberson, extended the ditch to his land and also extended the upper end of the ditch to the main creek where the headgate in question was put in. Mr. Holden, who was at one time superintendent of that water division, testified as follows: “Mr. Roberson made an application— it was executed before me, asking for a permit to use water through Desert Ditch No. 2. It was the original application. Subsequently Mr. Hamp made an application to enlarge that ditch. There was a ditch right that irrigated part of the land owned by Mr. and Mrs. Roberson at the time Mr. Hamp asked for permission to enlarge this ditch, and .the water had been used through this ditch for that purpose. But at this time, when, the ditch was first made, it did not extend to the creek but took water out of the slough. That derived its source of supply from the main creek, and there wasn’t a great deal of land irrigated up there, probably not over 40 acres; but when Mr. Hamp asked permission to ’enlarge this ditch, then it became necessary-to cut through to the creek, owing to the change in the channel of the creek, and there wasn’t as much water in • the slough as prior to that time. In order to furnish water for all those people it became necessary to cut through to the creek * * * the creek coming from the north, the dam had been thrown, across the slough and this ditch already taken from that slough, -and in enlarging they cut through from the slough to the main creek, in order to supply water for them all, they put in a dam there.”. ' Mr; Holden also
The court instructed the jury that it was not within their province to consider the question of the ownership of the ditch or headgate, or the defendant’s interest therein, if they found that the assistant water commissioner was in control thereof; and that the fact that the defendant may have been a user of water from the ditch, and a co-owner therein, did not, at the time the ditch was under the control and -supervision of the assistant water commissioner, give the defendant any greater right or privilege to interfere with the distribution of water, and with the opening and closing of the headgate, than if he had been a disinterested party. The jury were also instructed in effect that the notice required by statute to be- attached to the headgate by the water commissioner upon assuming control of the same is a notice to all parties interested in the distribution of water through the ditch. An instruction requested by the defendant to the effect that the jury should find the defendant not guilty, if they found that he was the owner of the ditch and headgate, or that the complaining witness
It is here contended as grounds for reversal: (1) That, the verdict is not sustained by sufficient evidence, for the reason that Hamp is shown by the evidence to be the owner of the ditch and headgate. (2) That the statutory provisions for the control and regulation, of headgates are unconstitutional and void, for the reason that they deprive á person of his property without due process of law, and authorize the taking and damaging of private property for private use without just compensation. Since the evidence as to ownership of ditch and headgate was practically withdrawn from the consideration of the jury, the point to be considered in that connection seems to be whether the instructions correctly stated the law of the case, rather than the sufficiency of the evidence to support the verdict. It is argued that the control of the water commissioner necessarily includes the physical control of the land occupied by the ditch and headgate, and that in the case at bar the commissioner added a burden to Hamp’s land by flowing water through his ditch for the use of Roberson; that while the defendant does not deny Roberson’s right to use the water of the state for the irrigation of his land, he does deny Roberson’s right and also the authority of the commissioner to impose an easement on the defendant’s land for Roberson’s benefit; that the imposition of such an easement was as much a taking of the defendant’s land as though the officer had assumed to convey it by deed to Roberson; and that the act of a water commissioner in taking control of a headgate for the purpose of flowing water through it or the ditch is an 'invasion of private property.
In several former decisions of this court the constitutional and statutory provisions relating to the control and distribution of appropriated waters have been set out and, with reference to the questions then before the court, some of such provisions have been explained and construed. - (See
The constitution of the state declares the water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, to be the property of the state; that priority of appropriation for beneficial uses shall give the better right; that the control of such water must be in the state, which, in providing for its use, shall equally guard all the various interests involved. It provides for a board of control, composed of the state engineer and superintendents of water divisions, “which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state, and of their appropriation, distribution and diversion, and of the various officers connected therewith;” and creates the office of state engineer, makes the incumbent thereof the president of the board of control, and confers upon him the power of general supervision of the waters of the state, and the officers connected with its distribution. (Art. VIII; Art I, Sec. 31.)
The board of control is required by statute to determine the priorities of right to the use of the public waters of the state, from which determination a party may appeal to the courts; and following such determination, a certificate of appropriation is required to be issued to each party represented in such determination, setting forth the name and postoffice address of the appropriator, the priority date and number of such appropriation from the stream involved in the determination; the amount of water appropriated; and a description of the legal sub-divisions of the land to which the water is to be applied, if the appropriation be for irrigation. Such certificate is required to be sent to the proper county clerk for recording in a book specially provided for that purpose. (Comp. Stat. 1910, Secs. 761-768.)
The provisions of the statute enacted in 1890 have been amended from time to time, but in no respect material to the questions here involved. The division superintendents are given general control over the water • commissioners, and, under the general supervision of the state engineer, are required to execute the laws relative to the distribution of water in accordance with the rights of priority of appropriation. -The boar.d of control-is required to divide the state into water districts-, ‘-‘such districts to be so constituted
Whenever a water commissioner; in the pursuance of his duties, regulates a headgate he is required to attach thereto a written notice properly dated and signed, setting forth the fact that such headgate has been properly regulated and is wholly under his control;, and the statute declares that such notice shall be a legal notice to all parties interested in the division and distribution of the water of such ditch or reservoir. The county and prosecuting attorney is required to appear and defend the division superintendent or any water commissioner who shall be made a defendant in any case arising in the pursuance of the official duties of any such officer. (Id. Sec. 801.) A substantial head-gate at the point where the water is diverted, is required to be maintained by the owner or owners of any ditch or canal, to the satisfaction of the division superintendent, so
We have had no difficulty in reaching a conclusion in this case; but the importance of the questions presented.seems to justify the above reference to the several statutory provisions appearing to be more or less pertinent, and also to furnish a sufficient reason for the discussion that is to follow, which might otherwise be regarded as unnecessarily extended. This court has already spoken upon what is conceived to be the fundamental proposition involved in the case, viz: the necessity and validity of the constitutional and statutory provisions for an effective public control of the waters of the state, and the previous general expressions of the court have, we think, a decisive bearing upon the -questions now before us. That the state may supervise and control the appropriation, diversion and distribution of the
Statutes similar to our own have been adopted in most of the western states. (See Wiel on Water Rights, = 3rd •Ed., Secs. 124, 1184-1189.) In Section 1184 of the work cited it is said: “Wyoming has developed a system of. state water supervision and • administration which was adopted in other states, and now forms the basis of the water code system in this respect.” And in Section 124, ■ the learned author, after referring to the absence of recent . legislation in certain states affecting the law of waters, says: “But in most, of the othér states, extensive codes have ‘been adopted, within the last few years, based solely on the law of appropriation, and chiefly for the encouragement of irrigation, though applying to all pursuits, under the influence in some degree of the United States reclamation service. This legislation is still going on. The features of this legislation originated partly in' Colorado, but chiefly in Wyoming. * * * The new statutes are chiefly administra.tive, providing-for the enforcement of the rights defined by case law, and for a policing of the waters. They are an application o.f the theory of public ownership of natural resources. * * * The essentials of all these statutes con- . sist in an enactment of the law of appropriation as the sole law on the subject of waters, with a declaration of . state or public ownership of all waters; a reorganization of the state for administrative purposes as concerns waters; • .a census, a determination and listing of all existing appropriations; a comprehensive method of making appropria
The constitutionality of the statutory provisions generally relating to-the duties of water commissioners, insofar as they require or authorize a control and regulation of the diversion and distribution of appropriated waters in accordance with adjudicated priorities, is in effect, we think, sustained by the reasoning and conclusion in the case* of Farm Investment Company v. Carpenter, 9 Wyo. no, upon the principal point involved in that case. It was there held that the.declaration of oiir constitution that all waters subject to appropriation for beneficial purposes are the prop-' erty of the state was valid and effectual, and the power of the state, through the administrative agency of the bpard of control and subordinate officers, to supervise and control the appropriation, diversion and. distribution of the waters of the state, (equally guarding, of course, the various interests involved) was Upheld. The main question in the case was whether the statute providing for the adjudication of water rights and priorities by the board of control was valid, the constitutionality thereof being challenged on the ground that it conferred judicial power upon the board in violation of the constitution. It was held that though under. the power vested in the board to determine the rights to the use Of the waters of the state, it exercises quasi-judicial authority, such determination by the board is primarily administrative rather than judicial, and that the power of adjudication was properly conferred upon the board as necessary to its supervisory powers conferred by the constitution. It was said in 'the opinion: “It has already been suggested that the supervision of the board affects individual appropriations, and concerns 'the distribution of water to individual claimants. Any effort to supervise and control the wáters of the state, their appropriation and distribution, in the absence of an effective ascertainment of the several priorities of rights, must result in practical failure, in times
And, again, in Ryan v. Tutty, 13 Wyo. 122, 78 Pac. 661, this court said that the various statutory provisions for the distribution of water among different appropriators according to their respective priorities by public officials “were doubtless adopted in pursuit of a wise and salutary policy to afford an economical and speedy remedy to those whose rights may have been wrongfully disregarded by others, as well as to prevent waste, and to avoid as much as possible unseemly controversies that are liable to occur, in the absence of suitable supervision, where several persons are entitled to share in a limited public commodity or privilege.” That was remarked with special reference to the provisions prescribing the duties of division superintendents and water commissioners. That case involved a controversy between appropriators as to the water of.certain springs claimed by the plaintiff to be tributary to a certain stream from which his appropriation had been made; and it was contended by the plaintiff that as the water commissioner and division superintendent had each investigated the matter and had decided in favor of the plaintiff’s rights to the water of the springs, and ordered the defendant to allow the same to flow into the main stream for plaintiff’s use, the defendant was concluded thereby, in the absence of an appeal from such decision. That contention was not sustained, but the court held that although it was incumbent on the commissioner before acting to satisfy himself on the question, his decision, or a failure to appeal therefrom, did not cut off the right of the interested parties to contest the matter in some proper proceeding in the courts; nor divest the courts of their general jurisdiction in the premises. But some of the statements contained in the. opinion relative to thé authority of the water commissioner and division su
The statutes of Oregon seem to contain the latest enactment of a water code based upon the system adopted in this state. (See Wiel on Water Rights, Sec. 1443.) The local supervising officer is there named water-master, and is required to perform the same duties that are imposed by our laws upon the water commissioner. In a recent case the supreme court of that state had under consideration the construction of the statutes with reference to the time when a water-master had authority, by regulating the distribution of the water, to enforce the rights of priority as established, the particular question being whether he had such authority as to rights previously established by judicial decree, but which had not been acted on by the board of control. The validity of the statutes do not appear to have been questionéd, but were evidently assumed, for the court said: “The intent of the act seems to be to place the control of irrigating water under the jurisdiction of the board of control as rapidly as rights are determined by it, and become a matter of record in its office. When the board convenes to determine such rights, prior decrees, made independent of action by the board, are conclusive upon it as between the parties to such decrees, and thereafter the rights established thereby may be enforced by the water-master, the same as though they had been originally determined by the board. • But, in the absence, of such determination in accordance with the water code, such rights must be enforced by the court making the decree.” (Wattles v. Baker County, 117 Pac. 417.)
The system of public control of appropriated waters in Colorado is practically the same as in this state, except
In McLean v. Farmers’ Highline &c. Co., supra, the court say: “With priorities settled, it became necessary to appoint officials whose duty it is to distribute the waters of a stream according to the decreed priorities therein. Their functions and authority cannot be interfered with without ignoring decrees and the statutes relating to the distribution of water thereunder, which would bring about the conditions that existed prior to the time when we had any statutes on the subject relating to the adjudication of rights to-the use of water or its distribution by officials in accordance with such adjudication. The laws of the state providing for officials to distribute the waters of our streams for agricultural uses according to adjudicated priorities were passed for the purpose of securing an orderly distribution of such waters, and to prevent breaches of the peace which would inevitably ensue if the owners of priorities were permitted to divert and divide the waters of our streams according to their ideas of their adjudicated rights and needs. These laws must be strictly enforced and observed, and the courts have no power to annul them.”
In Black’s Pomeroy on Water Rights, a work published prior to the decisions of this court and those in Colorado above cited, it is said by the learned author, with reference to the duties of water commissioners under our laws, and' those of other western states where the use of water is under public control: “It is not thought that any valid objection could be maintained, on constitutional grounds, to the powers with which these commissioners are invested.” (Sec. 215.)
The question arose in Colorado whether an interference with a headgate when the water commissioner was attempting to regulate the distribution of water pursuant to a general decree adjudicating priorities, amounted to a contempt of court, under a statute declaring it to be a contempt
The question was raised in the supreme court of the United States whether a district court of Arizona, in a decree determining the rights of appropriators to the waters of a certain stream had authority to appoint a commissioner to distribute the water among the different canals according to the adjudicated priorities, and to impose upon a party a liability to pay a pro rata share of the salary of the commissioner as fixed by the decree. The decree expressly authorized the commissioner at all times when necessary
While there may not be a close resemblance between the right of one to appropriate the water of natural sfreams for beneficial uses, and the right of a landowner to bore wells for the purpose of bringing to the surface natural gas and oil lying underneath the same, there seems to be a sufficient analogy between the laws regulating such rights to make proper here an allusion to the decisions upholding the validity of legislation for the protection of all landowners in an oil or gas field having an equal right to acquire possession of those substances, as against the contention' that the enforcement of such legislation constitutes a taking of private property without adequate or just compensation, and a denial of due process of law. But our reference to such decisions will be confined to a brief statement of the conclusion reached by the courts, taking as an illustrative case one decided by the supreme court of the United States, affirming the supreme court of Indiana. Citing several' cases, the court observes in the opinion that the Indiana cases are in accord with the rule of general law, and settle the rule of property as follows: “Although in virtue of his proprietorship the owner of the surface may bore weffi for the purpose of extracting natural gas and oil, until these substances are actually reduced by him to possession, he has no title whatever to them as owner. * * * that, in the absence of regulation by law, every owner of the surface within a gas. field may prosecute his efforts and may reduce to possession all or every part, if possible, of the deposits without violating the rights of other surface owners.” The court then proceeds: “But there is a co-equal
In an early Montana case, (Thorp v. Woolman, 1 Mont.
The fact that a water official when engaged in the discharge of his duties pursuant to the statutory provisions, makes or may make an erroneous or wrongful distribution of water in individual cases, or erroneously opens a head-gate to the passage of water for the use of an appropriator whose right to so use the headgate or ditch is denied by another, is no reason for holding the statute to be unconstitutional. The important duties imposed upon such officials could not be effectually performed, except with authority-over headgates and other diverting works, and the power to regulate them. By such supervision no rights of private property are invaded, but, under the police power of the state, in the interest of the public welfare, and for the protection of private as well as public rights, property intended to be used for no other purpose than that of diverting public waters is regulated; and it is a mistaken notion that through such regulation private property is taken for either public or private use, within the meaning
' It is contended that the notice required to be attached to a headgate whenever the commissioner takes control and regulates the same is insufficient to constitute due process of law, for the reason that the owner is given no opportunity to be heard. As well might it be said that 'a sheriff or constable before executing a writ, and as a condition to its lawful execution, must first notify the party against whom or whose property it is directed and afford him a hearing.as to the manner of its execution or whether it should be executed at all. The notice provided for is for the obvious purpose of aiding in protecting the commissioner against unlawful interference in the discharge of his duties, by informing the interested parties as well as others that the headgate is under official control. It is certainly an untenable proposition that the duty of .regulating the distribution of water according to adjudicated priorities cannot be lawfully or constitutionally performed without first providing a hearing with notice to all interested appropriators or ditch owners to determine the necessity or propriety of the proposed regulation. ■ The statute itself, so far as appears to be necessary, prescribes when and how the duty shall be performed.
The trial court correctly ruled and instructed that the question of ownership of the ditch and headgate was immaterial, and that it was not within the province of the jury to consider it. In the event that anyone is aggrieved or deems himself aggrieved by the act of the water commissioner or other water official, the law affords him ample civil remedies' through which his right as against other parties may be determined. It is held in Idaho that a'wáter master cannot be required, in making a distribution of water, •to look beyond the decree to ascertain whether or not "the
Holding that the statutes here assailed are not unconstitutional upon either of the grounds urged against them, it follows that the assistant water commissioner was authorized to control and regulate in accordance with adjudicated priorities the headgate in question, as well as others. As suggested above, if the defendant had any'proper ground to complain of the manner in which or the purpose for which it was so regulated, he might have applied for relief
It is, however, contended that the board of control is without judicial power to adjudge that any appropriator has such an interest in an irrigating ditch, as will authorize him to use it for diverting his appropriated water, though it may have been found that the appropriation was made by means of such ditch; or, in other words, that the adjudication of the board as to priorities of rights of appropriation does not determine ditch rights. But that point, however well taken, would not justify the defendant’s acts. It is evident that a decree adjudicating water rights and priorities as well as a certificate of appropriation, must, for the purpose of adequate description and regulation, define the point or means of diversion, and that the same must be regarded as prima facie evidence of the right to take the water as decreed. It may be conceded that the determination of the board is not conclusive upon the question of the ownership of the ditch, through which an appropriation is claimed or found to have been effected, or the right of the appropriator to use the same. But it is clear that, as incidental to the power to adjudicate priorities, the board must necessarily consider and determine, as a partial basis
The trial court correctly instructed the jury upon the law of the case, and the verdict is not only sustained by ample evidence, but a different verdict would not have been justified thereby. No error in any other respect having been suggested, the judgment will be affirmed.
Affirmed.