*1 GREENWALT, WILLIAM HUNZIKER and R. E. Appellants Plaintiffs vs. KNOWLTON, Superintendent

W. J. Water Division One, Wyoming, Water Division Number State VASSEUR, and RACHAEL LE Respondents,

Defendants GOETZ, BATH, M. MARGARET HENRY P. BESSIE MARSH, K. BATH and OSCAR

Interveners. (No. 2804; 4th, 1958; (2d) 141) March 322 Pac. *2 For appellants, cause was sub- mitted field of Greenwood, the brief of Ferrall & Bloom- Cheyenne, Wyoming, argument and oral

Bard Ferrall. For respondents, the defendants and the cause was upon argument submitted the brief and also oral of Lynn Laramie, Wyoming, County Rees and Prose- cuting Attorney Albany County. interveners, For the cause submitted King Laramie, Wyoming, the brief of Corthell and argument by and oral M. E. Corthell. Blume, Harnsberger Heard before C. J. and

Parker, JJ.

OPINION PER CURIAM.

Plaintiffs, Greenwalt, alleging Hunziker and each that he was the owner of a certain tract of land in Al- bany County appropriation irrigation an seeking joined land, in water had been made for said injunction against defendants, officers of an “continuing deny Wyoming, from State * * * irriga- and take” the to divert landowners other1 tion water for said lands. Various prayed for in the area intervened users alleging petition, plaintiffs’ that Bruce dismissal of question, had Eaton, of the lands a former owner G. at rights and the water1 of the sales reserved the dates *6 Divide and Reser- transferred them to Canal later the agreement by Company, company with which had voir appropriators the water abandoned said Sand Creek rights. granted, up- injunction temporary but A permanent hearing the trial court denied on the final against plaintiffs injunction and the matter resolved appealed court. have to this who controversy that in arose from fact The the part lands, Eaton, of which then and 1908 owner warranty by plaintiff, deeds now claimed each issued is specifically predecessors plaintiffs’ re- in interest himself, serving signs. rights heirs, and as- his unto that all of the water now contend

Plaintiffs rights appurtenant Ea- the time of the to the lands at peti- by conveyances passed the deeds. were ton appro- ownership only lands, of the tion related priation water, the water, the and use of of the some forbidding plaintiffs improper defendants in actions of compre- arguments more however are it. The to use. attempting urging re- in hensive, that Eaton’s acts rights that the defend- void and were serve the water being are the State officers administrative ants by Board of Control the records of State the bound appurtenant the lands to be the water which show question. with counter the interveners and Defendants rights Ea- of the the dates at the water that the view separate from transferred been could have ton deeds insisting plaintiffs have offered that lands, further the any no evidence failed to show of water and have injury by to themselves the Eaton reservations. arguments

Although pleadings con- both the legality cern the themselves with a discussion of propriety by the “reserved of the Eaton of transfer rights” to the Divide and Reservoir Com- Canal pany, subsequent appropria- of the abandonment by company, import, of similar tions and matters why anything that oc- we are at a loss to understand germane to is curred after the “Eaton reservations” present controversy. it, following presents As we see the situation al- possibilities, from ternative either of which eliminates subsequent present any acts consideration inconsistent parties by Wyoming water of- either or ficials :

(1) purported If the reservations of the water effective, legally Eaton were then could by, consequently have received no water have standing may point it be observed no here. On this prima-facie that the record of the Board of Control *7 right evidence the to take water but is not conclu- of 653, State, Wyo. 377, Hamp v. 118 P. 663. sive. See (2) rights ap- If on the other hand the were purtenant to the land at the time of the Eaton deeds by operation passed law the the water deeds of rights (notwithstanding anything in with the lands contrary) the to the then the water have deeds by conveyances passed plaintiffs any the mesne assign subsequent attempts Eaton of or of his suc- of are without force or ef- cessors interest abandon (cid:127) (cid:127) fect. upon litigation depends present of the outcome by the was disclosed

which of the above alternatives pleadings in the court below. and evidence petition. Nowhere plaintiffs’ then to

We advert language that concise therein it in clear and is stated ques- plaintiffs are the owners of the rely tion, necessarily follow that and it must during years of 1907 the the law in effect gen- rights. In ownership of water 1908 to show their it made eral, were the the Eaton reservations at dates spe- of unquestioned in the absence the rule that contrary water by the provisions the state to cific Kinney grantor. rights might by In the reserved be 1780, Eights, ed., p. it is Irrigation 2d on and Water stated: conveying certain tract specified a “If in the deed although may an

land, right, in fact be it the water by the land, may appurtenance grantor, be reserved un- may water claimed who then transfer the course, land, provided, right der the to some other injured by the not the of others are change.” Wiel, effect the in 1 Water To a similar see statement 582, States, ed., Eights pp. 583: 3d in the Western may statute, by provided otherwise “Unless land, independent of separate it from since is be sold title to or * * possession land *. * “* * * though water-right usually appurtenant is used, may yet on a it be reserved sale to the land where something extracted A of the land. ‘reservation’ general res covered terms of from whole grant, otherwise have been. lessening thing granted from it would what * * *” Wyoming preventing the at that time had no statute

250 right separate

reservation aof water it or the sale of Accordingly, from the land. we have no alternative but look to the views of the court at that time for guiding reviewing principle subject. on the In following adoption cases the era of the constitu- prior deeds, following tion and to the Eaton we find the significance. statements which are of some Hicks, 1894, 502, 475, In Wyo. Frank v. 4 35 P. 35 1025, Judge Conaway discussing P. page said at 480 in another case: « * * * jf simply land, this means that the owner of right irrigated, of a water from which the land is

may in and at right selling land, sell the water without it is ” * * * harmony with the decisions of other courts. page 484: “ * * * It true is that all the authorities the water right separable from the appur- land to which it is tenant, may separate land, be sold from the place changed. the But place may of diversion and of use be only injurious this is when these acts are not ” * * * of others.

In Irrigating Co., Johnston v. Little Horse Creek 1904, Wyo. 208, 22, 24, 26, 27, 341, 79 P. 70 L.R.A. Am.St.Rep. 986, Judge Potter said: “ * * * only right limitation sale right separate water applied, down from the land to which it was first appurtenant, and to which it has become laid by any authorities, of the is that it shall not in- * * * juriously appropriators. affect the of other

[*] ^[*] ^[*] ^[*] ^[*] agree requires “We cannot it a strained and dis- interpretation torted uphold of our statutes to the doc- permitting trine separate the sale of a water *9 require a contrary, it would the land. from On the deny such the statutes strained construction of * * * right. ^[*****] “ * * * nothing fundamental the perceive in We can appropria- underlying prior principles doctrine of the right with interferes

tion in the use of water that contrary, but, those right, on the of sale of the water * *” * right. harmony principles with such seem to be in prior by again the court1 The matter not discussed 1908, or whether in and and Eaton deeds 1907 of the disagreement propriety not there be about rule, in this State it was then well established rights might separate and appurtenant be sold water 68, legislature by L.S. apart Ch. from the lands. The 71-401, Wyoming, 1909, incorporated W.C. in now § policy that S.1945, changed “adopted the this rule and at right by shall be from a stream a water direct flow 4, Nichols, Wyo. 95 P.2d v. 55 tached to Scherck land.” 74, 80. made reference has been more or less casual

Some of ir- the use pleadings the evidence to in both However, no claim rigation by plaintiffs. been, though and, fact; it had even this was based on give not, standing alone, them would use of the water Campbell by v. prescription. See any title 347, Wyo. Company, Development Wyoming 124, 745. 102 P.2d P.2d 1905) re (Ch. 97, Wyoming, legislature L. of S. 1The a transfer of a rule that the court’s iterated right not used which it had been should from land on pro injurious appropriators to other if

be valid by of water transfer which a the manner vided might by deed. effected be urged though Certain in matters not briefs es- may sential to a determination of the warrant case some mention:

(1) property Plaintiffs state that water is the Wyoming, control, the State of is under the State’s by and is in people. fact held the State in for trust its concur, We principle but we think that such not does alter the fact that under the views extant at the time of the issuance of the Eaton deeds certain might and to water be reserved the seller of land. legislature 97, (Ch. Wyoming, 1905) 1Fhe L. re S. iterated the rule court’s that a transfer of a water from land on which it had been not be used should injurious valid if appropriators provided other *10 by rights the might manner which a transfer water of (2) point Plaintiffs out that Eaton did not follow provisions 97, Wyoming, 1905, the of Ch. S. L. of which provided transfer, say, the method of and “The reser- * * * * * accomplish vations did not a transfer rights Plaintiffs thus admit that the water did not question, leave Eaton at the time of the deeds in and agree. any with this we subsequent Whether or not attempt by convey Eaton to could be effective ais mat- ter not before the court.

(3) noteWe with some interest the reference to the Quinn cases of Co., v. John Wyo. Whitaker Ranch 367, 568, 45, 92 P.2d Bishop, Wyo. and Merrill v. 186, requiring 237 P.2d officers make diver- sion priorities. in accordance with determined The principle question therein announced is without the State, law of the present but in the situa- rights tion find themselves without to the water and therefore not entitled invoke such rule. (4) argued It directly by implication both plaintiffs’ separate that be could not sold lands apart because a water cannot a mere be “floating right,” grantor and further Eaton sought illegal purposes to hold the water for an sale. of points require validity These no discussion because any reserved Eaton in issue is not present in the pursue case. Neither we or resolve do arguments regarding abandonment of water legal standing any or persons use the water originally appropriated for the lands now claimed to by plaintiffs. be problems may owned Such be re- they properly presented solved if and when are court. plaintiffs, record herein discloses no pleaded proved,

either they or not shown have injunction. themselves entitled to an Affirmed.

ON PETITION RE-HEARING. FOR 266) (No. 2804; April 1958; (2d) 22nd, 324 Pac.

255 OPINION PER CURIAM. petition rehearing earnestly urges for a holding:

court’s error in “ * ** plaintiffs’ petition] [in Nowhere it therein language stated in clear and concise are rights question, the owners of the water it and must necessarily plaintiffs rely upon follow that the law in during years effect ownership of 1907and 1908 to their show rights. of water

[*] ^[*] ^[*] Ns ^[*] plaintiffs, “The record herein discloses no pleaded proved, they either or not have shown injunction.” themselves entitled to an emphasizes Careful consideration the limitation of petition simultaneously these statements to the turning point discloses that the of the case was the proof pleading. lack of rather than of (a) paragraphs Plaintiffs now insist that original petition allege ownership of their sufficient rights by describing of water the lands and thereafter stating “appurtenant that the water were to (b) “Replies the above described lands” and their Answers and Answers to Cross Petition” should be part pleadings considered as a of the and that these alleged clearly ownership rights. allegations petition. We consider first the of the It sought injunction an to restrain the water officials ultimately denying plaintiffs, but from certain water water. requested it determination of the Thus, quiet must be it in effect a title and suit governed by applicable actions. to such rules *13 determine, ascertain, extent decree the “A to and suit held right appropriation is priority of a water and quiet title to partake an action to to of the nature of ” * * * Quieting Title 9. 44 § real estate. Am.Jur. Montclair, of see v. Town Gutheil Park Inv. Co. And regarding 420, discussing 1050, 32 76 the suit Colo. P. irrigation rights court held the which was quiet of bill to to of characteristics a have some the injunction. of an title and of the characteristics some 986, 610, Magill, 190 96 189 P. See also Allen v. Or. water, 726, enjoin wherein of P. a suit to diversion the and a analogy action an between such an was drawn Irrigation quiet Kinney and Water 2 on suit to title. ed., 1330, Rights, p. 2d states: “ * * * irriga- right quiet for a to title to a water suit divert the purposes, to tion and to determine the purposes, in the na- from a stream for such waters ”** * quiet real estate. ture of an action to title to 265, 647, Abbott, Wyo. 44 P. we dis-

In Durell v. quiet petition for in an action cussed the criteria a seq., (now 3-7001 et title under 2985 et R.S. § § petition seq., W.C.S.1945), approving as sufficient possession alleging, alia, plaintiffs in that were inter they property, claimed of certain described real no premises, that defendant had fee title in to said title, estate, right, land. or interest whatsoever said designated the Although petition not as the out was set na- requirement pleadings in suits of that of minimum ture, the it Under standards think that is. such we present petition allegations plaintiffs’ in the of direct stating language fell case short in clear of and concise rights. any ownership of water legal effect of of water reservations plain- at the time the deeds to the issued lands were predecessors tiffs’ in interest and the claimed use of by plaintiffs require at various times no elabora- adequately presented since tion our views were in the original opinion. turn plaintiffs’ then to

We contention that the al- legations “Replies of their to Answers and Answers to light Cross Petition” should be considered in of § 3-1705, W.C.S.1945, curing any peti- as defects in the That tion. is a matter some doubt. Our decision based respective the merits of the relation defendants —without interveners —and no authorities have been justify against supplementing petition cited to of a party by reply one statements contained in or answer cross-petition event, parties. any to other In directed *14 predicated upon our decision was not failure of plaintiffs’ pleading proof but rather insufficient any right to relief.

Rehearing Denied.