137 P. 876 | Wyo. | 1914
This is an action for damages for an alleged unlawful use of water claimed for irrigation purposes brought in the District Court of Laramie County by the plaintiff in error who will hereinafter be referred to as the plaintiff, to recover damages from the defendant in error which was defendant in the lower court and which will be referred to as the defendant or the city.
A. demurrer was interposed to the petition upon the alleged ground that the facts stated therein are insufficient to constitute a cause of action in favor of the plaintiff and againsLthe defendant. Upon argument and submission the court sustained the demurrer and judgment of dismissal was rendered thereon.- The plaintiff brings the case here on error.
1. The petition is voluminous and sets out at great length the facts upon which paintiff bases his right to recover, and which for the purposes of the demurrer must be taken as true, but we think it unnecessary to set out the petition in haec verba. The validity of a decree alleged to have been made and entered in the District Court of the First Judicial District of the Territory of Wyoming within and for the County of Laramie, on April 18, 1888, is assailed and which
There are two grounds, going to the jurisdiction, which will render such an adjudication void. First, when the court is without jurisdiction of the person, and second, when the court is without jurisdiction of the subject matter, and when it appears that the court is without jurisdiction for either of those reasons, the adjudication is void. There is also a third ground not resting upon jurisdictional defects but upon the alleged fact that the decree is so unintelligible as to be impossible of enforcement. In this case it is alleged that the court had jurisdiction of the parties and of the subject matter, and the plaintiff can claim nothing on either of those grounds. He alleges that the decree has never been appealed from, modified or reversed, either with or without the amendatory decree, and alleges that they are now and always have been void on the face of each of them, of no effect and ambiguous, uncertain, unintelligible and not capable of being enforced, for the following among other reasons, to-wit: (a) At the beginning of the decree of April 18, 1888, is the following recital: “This cause coming on to be heard on the petitions and several answers and cross petitions, and the several replies of the parties hereto and the evidence, the court being fully advised in the premises does now find that said Crow Creek is composed of North Crow Creek, Middle Crow Creek and South Crow Creek; that said South Crow is composed of the North branch of South Crow Creek, and the South branch of South Crow Creek; that divers persons, parties hereto, have located ditches and appropriated water of these various streams, and that in order to adjudicate as to the priorities of the rights of all the parties hereto, it is necessary for the court to adjudicate the rights growing out of each of the said streams as between themselves and the parties below them on the main stream. The court further finds that it is 'impossible at this time, in the uncertainty attendant upon
“24a. The City of Cheyenne is entitled to sufficient of the waters of Crow Creek to irrigate 60 acres of land not to exceed 4.5 cubic feet per second of time.”
“XIV.
“The Court finds that the City of Cheyenne as against each and every and all appropriators of water from the main Crow Creek and its tributaries and as against all other persons is entitled by priority of right for the use of its inhabitants to twelve thousand four hundred and eighty-one cubic feet of water per second of time of the water of Crow Creek; and the court finds that the said City of Cheyenne is entitled to an injunction against each and every appropriator of water from Crow Creek or any of its tributaries enjoining him and them to permit sufficient water to flow down to the city ditch and City of Cheyenne pipe line to satisfy the said prior right of the said city and enjoining him and them from diverting water from said Crow Creek or either of its tributaries in such a manner or to such an*226 extent as will in any wise interfere with the said prior right of the said City of Cheyenne.”
It is contended that the allowance to the defendant of “twelve thousand and four hundred and eighty-one (12,481) cubic feet of water per second of time for the use of its inhabitants of waters of Crow Creek proper is void upon its face, of no effect and ambiguous, uncertain, unintelligible and not capable of being enforced.” We see nothing upon the face of the adjudication that would warrant us in sustaining this contention or either of them. Plaintiff does not base his argument upon anything unintelligible or ambiguous appearing on the face of the decree, but upon allegations aliunde to the effect that in low water there was only 10 cubic feet of water and in time of high water not to exceed 20 cubic feet in the source of supply and available for any purpose. The eighth paragraph of the petition is as follows, viz: “Notwithstanding said pretended and void decrees, said city defendant at times pretends that it is entitled to twelve and 48/100 cubic feet of water flowing per second of time from the said waters of Crow Creek and its said tributaries and branches, and at other times pretends that it is entitled to all of said water, and plaintiff alleges that all of said pretenses and claims of said city defendant, áre and have always been false, vexatious and void, and in direct, hostile and flagrant disregard of this plaintiff and other owners of lands and water rights connected therewith on said Middle Crow Creek.” Taking these allegations as true then the claim of the city has never at any time been to the extent of 12,481 cubic feet of water per second of time as fixed and allowed in the decree. It nowhere appears in the petition that in such adjudication the court found the amount of water available in the source of supply other than what might be implied from the allotments. Indeed, the plaintiff in order to maintain his petition treats and regards the decree as void on its face, but the court which rendered such judgment and decree admittedly having the parties before it and jurisdiction of the subject matter had jurisdiction to enter a decree.
Plaintiff says in his brief that the allowance to the city of such a large quantity of water as mentioned in the decree may be claimed to be “a clerical error, or a misprision of the clerk, but that matter cannot be altered or reformed now.” Sec. 4650, Comp. Stat. 1910, provides that a District Court may vacate or modify its own judgment or order, after the term at which the same was made: “Eor mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order”, and Section 4659 limits proceedings in such causes to three years. Both of these sections were enacted in 1886 by the Ninth Legislative Assembly of the Territory of Wyoming as a part of Chapter 60, S. L. 1886, being “An Act to establish a code of Civil Procedure for Wyoming Territory”, and appear as Sections 2701 and 2710, Rev. Stat. 1887, and as Sections 3795 and 3804, Rev. Stat. 1899. It is thus seen that the plaintiff’s predecessor in interest and plaintiff, if he succeeded to his
2. It is .contended that the adjudication is at most interlocutory. It is not so in form. Upon the hearing the court stated the order of priorities and the city was allowed a specific amount of water. If the amount so allowed was-
The plaintiff complained of the allowance to the city of 4.5 cubic feet of water per second of time for the irrigation of sixty acres of land. That part of the decree does not state where this land is or describe it, but the petition without any description alleges that it is outside the limits of the city. There is no allegation to the effect that the- city has used, is using or threatens to use the amount so allowed or any part thereof for irrigating such land. No damage done or threatened is shown with reference to this allowance.
3. It is alleged that the city, in pursuance of different contracts with the United States of America to which plaintiff nor his predecessors in interest were parties or ever assented, is furnishing water from its supply not necessary for the use of the city’s inhabitants to Tort D. A. Russell Military Reservation and its inhabitants, which reservation is situate outside of and about three miles westerly from the city, to the damage of plaintiff. That originally the headgate of the city’s ditch was situated about six miles from the city on Crow Creek proper, lower down on said creek than plaintiff’s land and above said military reservation. That such contracts were made, executed and ratified prior to the matters complained of in plaintiff’s petition. That the city obtained confirmation and ratification of these contracts by an act of the Eleventh State Legislature of the State of Wyoming, entitled, “An Act empowering special charter cities having a population of not less than ten thousand inhabitants to enter into and perform contracts with the United States Government, its departments or representatives, to supply water for the use of military posts, forts or stations of the United States adjoining such cities and validating such contracts heretofore made”, approved February 16, 1911. That.none of said agreements have ever been
4. It is alleged that prior to and since the adjudication on April 18, 1888, hereinbefore referred to, the plaintiff acquired title to the use of the water by adverse user for the period of twenty-four years. We have no express statutory provision covering or conferring the right to acquire title to municipal property by adverse user as against the municipality, which property is held by it in trust for its inhabitants, and in such case the right is denied by the great weight of authority. It is said in 2 Ency. L. &'P., at page 562, that “The rule announced in a great majority of the decisions, in the absence of any express statutory provisions, that such corporations with regard to lands held for public use,
It is apparent that in order for the plaintiff to recover damages for infringement upon his right to the use of the water here involved he must allege and show a superior right to the use of the water. His contention that the decree of April 18, 1888, was and is void is not sustained; at most it was erroneous and by laches of plaintiff he has lost his right to correct the same. Neither can his claim of title by adverse user for reasons hereinbefore stated be sustained. The judgment will be affirmed..
Affirmed.