Owl Creek Irrigation District v. Bryson

THE IN THE MATTER OF OWL CREEK IRRIGA- DISTRICT, TION DISTRICT, L.

THE CREEK IRRIGATION OWL THORNTON, OSTBERG, FRED E. and ELMER F. TANNER, THE COMMISSIONERS OF OWL DISTRICT, CREEK IRRIGATION Respondents, Petitioners and vs. BRYSON, COLLINS,

FRED WALTER LEWIS FREUDENTHAL, AL., ET

Objectors Appellants. 2557; (No. 1953; February 17th, (2d) 867) 253 Pac. objectors appellants For the the cause was sub- upon mitted argument the brief and also oral of Mil- Simpson L. Cody, ward Wyoming, Joseph Ca- Thermopolis, Wyoming. valli of petitioners respondents

For the the cause was upon submitted Goppert the brief Fitzstephens & Cody, Wyoming, and Axtel Thermopo- & Yonkee of lis, Wyoming argument by and oral Ernest Mr. J. Goppert.

OPINION Justice. Riner, judgment presents appeal

This case a direct from a Springs or final order of the Court of Hot District County enlarge which undertook boundaries Irrigation an District hereinafter referred to as “District” which had theretofore been established. The original district boundaries had been defined an 1935, order 9, of the district court aforesaid on March pursuant provisions of Article 7 Revised Statutes Wyoming, 1931, (now substantially Article 8 71- §§ including 1945). to and 71-847 W.C.S. 26, 1937,

On October Dis- the Commissioners trict report petition filed an after amended and and notice to the landowners in the district thus formed— pursuant to by an order made the District Court by again aforesaid that court its order fixed the bound- district, aries of but, however, excluded from the total area objectors the lands of most of the who now appear appellants as the proceeding in the instant prejudice without petition to later for inclu- sion of said Hearing excluded lands after “Notice of provided by location, crops law.” The district naturally altitude divides itself into three distinct areas, viz.: Lucerne, the lower or the middle and the upper majority areas. A objectors of the here live what usually designated is upper as “the area.” These distinctions will be observed herein as found necessary. Thornton, L. F. present are Commissioners Ostberg of all Tanner. The lands

Fred E. and Elmer ap- appellants a court order —the one are how changed newly pealed within for review —embraced were, after district boundaries. These Commissioners negotiate hearings, several authorized the court a Unit- contract with the Bureau of Reclamation through Interior. That ed States Supplemental Ex- contract is Petition as attached to objectors Sup- opposition hibit “A”. The filed in plemental designated Petition what as: “Answer was Objections Report Supplemental and Petition for Changing Modification and of Orders and Confirma- tion of Contract and Assessments.” This Answer and Objections interposed “Supplemental was Re- port Changing Petition for Modification and Orders and Confirmation of and Assess- Contract ments” previously which had been court filed in the 6, 1950, by respondent, aforesaid on June Owl Irrigation District, through Creek three its Commis- sioners named above. altogether pleadings is

The substance of these too ex- reproduce tensive and involved to undertake here. Hearings commencing pleadings were had these on September 18, 1950, with various continuances on 1950; 1, at their conclusion extended until December the district court aforesaid entered the order which brought review, entry of now here before us among 8, It, being that order made December 1950. on things, generally petition- other favor of the found enlarge and undertook to district boundaries ers objectors so as to include the all of the in the lands of upper omitted, previously had area which been approved confirmed and the contract aforesaid made through between the United of America its Sec- Irrigation retary of the Interior and the Owl Creek

39 through Thornton, L. F. Chairman district Ostberg, secretary. Board, its con- Fred E. This largely controversy us tract about which before follows: centers reads as

“UNITED STATES THE DEPARTMENT OF INTERIOR RECLAMATION BUREAU OF Unit, Wyoming Creek Owl Project Missouri Basin River CONTRACT BETWEEN UNITED STATES OF

AMERICA AND OWL CREEK IRRIGATION

DISTRICT Table of Contents Page Article Title Explanatory 1-5 6 Definitions 7 Construction of Works Recitals ~1-2 ~1-3 - 3 Pump 8 United States to Release and Water ~3-4 Paymentby 9 the District ~4~5 10 Assessmeiit of Lands - 5 Delivery 11 Water - 6 Agreed Charges Obligation 12 A General the district......6 13 Levy Assessment, Charges Tolls 6 14 6 15 Penalty Delinquent Payments - Defaults- 6~716 Payments AnDlication - 7 17 Project Districtto IncludeAll Lands - 7 18 7\ 19 Uonhirmation Uontract - Agreementby lMstrictto Secure Indivi-dual WaterUsers - 8 20 21 Transferof Titleto CertainDistrict Works 8 Indebtedness Paymentof ~~-9 22 Landsnot to ReceiveWater Until Own- ers

ThereofExecute Certain Contract&.~..9 23 Valuationand ExcessLands ~10-11 Rulesand Sale of Lands- 9-1024

Regulations -

40 Changes Organization District 26 —As- signment Limited —Successors Obligated. Assigns rH t—1 . 27 Notices tH r-< Against Employees or Discrimination 28 Applicants Employment Prohibited.. for tH tH Contingent Appropriations on or Allot- ments of Funds. <M Not Benefit. 30 Officials “UNITED STATES THE INTERIOR DEPARTMENT OF RECLAMATION BUREAU OF Unit, Wyoming Creek Owl Project River Basin Missouri UNITED STATES “CONTRACT BETWEEN OF AND OWL CREEK AMERICA IRRIGATION DISTRICT CONTRACT, day of “1. made this . THIS ., 19., THE between UNITED OF STATES. (hereinafter States), called the United act- AMERICA ing through pursuant of the Interior and Laws, to the Federal Reclamation and the OWL (hereinafter CREEK IRRIGATION DISTRICT called irrigation District), organized an district and ex- isting of under virtue of laws the State Wyoming, in the principal place of with its business and office Thermopolis, Wyoming, City witnesseth, irrigating Whereas, “2. farmers and ranchers along by experience have lands Owl Creek learned analysis competent technical and advice: (a) ample supply That an water is avail- not approximately thirty (30,- able for the thousand claiming 000) land water from acres Owl Creek; (b) representative period in a That water 1930-1948, periods, an- such as and in similar average supply only sixty (60) per- nual water is approximately for the cent water needs seven- (17,500) thousand five hundred acres of land teen cultivated: shortages supply (c) fre- water That such

quently economic acute distress. cause constructing Whereas, the United “3. Project pursuant to the Act River Basin the Missouri 887), (58 22, 1944 and the District Stat. December construct the Owl United States Creek a desires Unit of this assuring project purpose for the bet- irrigable supply its Dis- lands within ter water boundaries; trict determined, Whereas, has States “4. United engineering and economicinves- result of extensive adequate supply tigations, nearly water that a more farmers and ranchers assured Creek can be the Owl provided: Unit, of the Owl Creek the construction operated (a) upon construction, Unit, The is strictly in accordance with and administered requirements applicable use other beneficial and Wyoming; of the of the laws State of (b) acreage irrigated does not exceed The an available water for which there will be According hydrologic supply. it es- studies is only will that the waters Owl Creek timated proper measures, irri- control under sufficient acreage gate approximately 13,000 acres, or the being partially irrigated normally in the and now by the which will not be served the unit area of Pumping plants; Lucerne averages requirement (c) diversion acre 3.06 per with variations from aver- acre-feet reports age casts, and fore- on current weather based surveys, pertinent and other data snow information; operated (d) administered The Unit is propor- available water is distributed so that the irrigated equitably tionately lands to all Unit; acreage Whereas, included in the there are “5. ninety-two hundred thousand two cultivated land two Arapahoe (2,292) the Shoshone acres owned the Unit works be served Tribes which Indian 42 part Irrigation and will not be a Dis- Owl Creek

trict. “NOW, THEREFORE, agreed it as follows:

“DEFINITIONS contract, “6. Where used in this the terms: (a) ‘Secretary’ shall mean the Department Interior, the United representative; his authorized (b) ‘Federal Reclamation Laws’ shall mean 17, (32 388), the Act of June 1902 Stat. and all amendatory supplementary acts thereof and there- to; (c) period January ‘Year’ shall mean the through following 31; the next December (d) ‘Irrigation season’ period shall mean the any year April through within from October 10, subject change proposed to such as shall be approved in provided the schedule below (c). Article 8 (e) ‘The Owl Creek Unit’ shall mean the Anchor pumping dam and reservoir the Lucerne plant appurtenant plans facilities. The may changed by these but voir Secretary, features be the they contemplate it is understood that a reser- capacity 16,500 of approximately a of acre pump capacity feet and of approximately 84 second; per cubic feet (f) pumping plant’ ‘Lucerne shall include the pumping works directly instilled for water from Big River Horn and the works installed to re- portion higher lift a such water to a level.

“CONSTRUCTION OF WORKS not, “7. Construction of the Owl Creek Unit shall option States, at the of the United be commenced until completed the District has the action set forth in 18, 17, 19 Articles and 20. 43 “UNITED STATES TO RELEASE AND

PUMP WATER (a) give Secretary “8. The shall the District no- tice when he has determined the Owl Creek Unit construction of sufficiently completed permit works District. pumping the release and of water from the irrigated lands of the Unit for the of the (b) following giving March 1 On of such following and on of the notice March of each thirty-nine the (39) years, Secretary shall advise probable supply District of water for the ensuing irrigation season. (c) April following, On each then the Dis- Secretary trict shall submit to a schedule show- ing quantities the desired of water to be released pumped acres the number of irri- be gated. Water ject approved The schedule shall be State 3, Superintendent Division No. and sub- Secretary. approval (d) shall, The nearly United States as feasible, may pump be release and water in accord- may ance with such schedule. The schedule varied meet the needs upon District lands request approved written the District Superintendent. and said State Water

(e) Water shall be released to the District at the outlet of the Anchor dam and at dis- charge sides of the main and relift stations of the pumping plant. Lucerne (f) responsible District shall be for the

control, handling, use, disposal, or distribution of water which be released District below provided points (e), the the of release above hold District shall the United States harmless damage, injury, personal account of on or death control, arising connected out with the handling, use, disposal, or distribution of such points release. water below said drought, (g) inaccuracy account of On distribution, causes, may or other there occur at 44 during year shortage any in a the water

times In the lands of the District. no event available for against liability any accrue the United shall agents officers, employees any or of its arising damage, any out of direct or indirect may year shortage. in any which there In shall, shortage, its the District occur such (c), plan provided for above in include schedule of equitable distribution the water. BY “PAYMENT THE DISTRICT following year the (a) April “9. On 15 of giving paragraph of the notice described above in thirty-nine (a) April and on 15 of each of years following, pay (39) the District shall then During charge. States a water service the United the following (5) years giving of the first five charge, notice, service the water as announced Secretary, year March 15 of the on or before proportionate due, of share be the District’s shall maintaining operating estimated cost During thirty- each of the next the Unit works. charge, (35) years, the annual water service five Secretary March as announced on or before year due, propor- shall be the District’s operating cost of tionate share of the estimated maintaining Twenty- plus Unit Owl Creek Forty ($21,740) one Hundred Thousand Seven addition, pay the District shall an Dollars. In amount estimates of any supplemental equal to the amount of operation and maintenance cost for irrigation any supple- forth in season as set each which, time, may from time mental notice given the District on account prior deficiency in for such irri- estimates payment gation required The District for amount seasons. proportionate District’s to meet the share maintaining of operating and the Unit of the cost of which are excess the actual cost works maintaining operating the Unit works such in year credited on the District’s one shall be charge. water service next annual payment (b) elect to make The District charge so that service of its annual water

45 - Forty Twenty Hundred one Thousand Seven by (21,740) portion determined be Dollars will application after the formula: That of a variable Provided? payment is made in accordance with first formula, succeeding payments all shall a variable Dis- with a formula. The be in accordance variable payment make accordance trict’s election to by a authorized formula shall be with vote variable elec- of electors. Notice of such the District’s by given Secretary the District’s tion shall be the February 15 Board of Commissioners on type pay- year year in which such of before the following receipt of begin. is to On March 15 ment year every there- March such notice and on after, Secretary the amount the shall announce charge in the which be due the water service shall charge year. following amount of each The the the District’s be sum of shall share of the proportionate operating cost main- estimated taining deter- Unit an amount the Creek Owl multiplying product of the base by mined the by agricul- charge price index factor the and the parity ture ratio: charge’ (1) Twenty-one The ‘base shall be Forty (.$21,740) Hundred Thousand Seven Dol- lars. (2) ‘price index The factor’ is number represents relationship

which the between the prices products for current average received farm and the during prices products received for farm period the 1939-44 Sec- determined retary. ‘agricultural (3) parity na- ratio’ is the agricultural conclusively parity de- tional ratio as Secretary year preceding for the termined the year. notice (4) making required In the determinations above, (2) (3) shall use agri- commodity prices indexes and the national parity ratio as determined the Secre- cultural Agriculture provisions tary under Title 897, Agricultural (Pub. Act of 1948 Law II of the Cong., Sess.), 80th 2d itas be from amended price commodity time If to time. indexes and parity ratio, national which basic to deter- are

mination Article, installments due under the annual installment under any year are not available annual this contract shall - Forty Twenty one Thousand Seven Hundred ($21,740) proportionate plus District’s Dollars operating share of estimated cost of and main- taining year. the Unit works for that charge (5) The annual not be more than shall twenty- (200) percent two hundred nor less than (25) percent plus base, five proportionate the District’s oper- of the estimated share cost of ating maintaining works. Unit “ASSESSMENT OF LANDS (a) provided Wyo. 71-1002, “10. As Section Comp. against 1945, Stats. the annual assessments oper- the individual tracts of land other than for expense, ation and maintenance and current shall be in accordance with list attached to and part amade contract this as Exhibit ‘A’.The as- against irrigated sessment within the each acre of land now District, ‘A’, as shown Exhibit upon (1) priority based water relative right appurtenant (2) produc- acre; to such capacity tive of such acre determined in accord- (3) land; ance with the classification of its accessibility the relative elevation and acre. (b) In the event that the distribution of the supply may provide water be altered in order to irrigation for the of new lands other for a promptly petition reason, the District shall pursuant Wyoming reassessment to the Statutes. Such reassessment shall be submitted to the Sec- retary; upon approval by Secretary pursuant Wyoming Statutes, confirmation it shall becomea ‘A’to new Exhibit contract this replacing prior Exhibit ‘A’.

“DELIVERY OF WATER any year “11. The District shall not deliver water in irrigation lands for the in excess of the total acre- age as approved by shown on the schedule provided (c). in Article 8 A “AGREED CHARGES GENERAL OBLIGATION THE OF DISTRICT obligated pay “12. to The District as a whole is to charges becoming pro- the United due as contract, notwithstanding vided in this the individual individual payment default in the to the District assessments, tolls, charges water or other users levied the District. ASSESSMENT, “LEVY OF TOLLS AND CHARGES The District will levied “13. cause and col- assessments, necessary all and other lected tolls charges, authority resources and will use all of the obligations of the District of the District to meet the payments pursuant make in full all to be made payments contract on or before the date such be- this obligations under come due and to meet its other contract. DELINQUENT

“PENALTY FOR PAYMENTS Every charge required paid “14. to be United this contract States under and which shall remain un- paid be month impose payable it after shall have become due and shall subject penalty percent per to a of one-half of one delinquency. of from the date The District shall delinquencies payments on in the of assess- charges ments, by to tolls or other levied the District obligations penalties such meet its as under this contract impose to laws of it authorized under the Wyoming. of State

“DEFAULTS per- All accrue the District or to “15. benefits to to pursuant sons or lands therein ditioned charges conditions to this contract are con- upon payment of the to the United States contract, provided in under the terms this therein set out. (a) levy Should the fail to as- District against sessments, of land in the charges any or other tract tolls required District to to be levied obligations meet the District’s to the United States contract, having levied, under should this or collecting prevented District ments, tolls, ceeding, such assess- from charges any judicial pro- by or other them, or otherwise fail to collect tract shall entitled to receive water of land not be under contract. this (b) by water the Dis- No shall be furnished any persons trict be to or therein which lands any payment arrears in to District of assessments, tolls, charges or or other levied es- raising purpose tablished the District for the of payment by to meet the the District to revenues any obliga- United of the District’s States tions under this contract. (c) may, opinion, United States the at its rights all terminate District to receive water pursuant sixty (60) days’ to this contract on writ- upon notice to District ten the failure of the (2) District for two lative or more successive or cumu- years any payments required the District to make of the in this contract to be made to United pro- States at the times and in the manner Upon vided. the effective date of such termina- tion, obligations all of the United States and all rights arising District, any of the nature whatsoever contract, cease, under this shall but such termination shall not relieve the District obligation to to pay- make the United pursuant all becoming ments due contract prior to the effective date of such termination. No any waiver at time the United States of its rights respect any with default other matter arising in connection with this contract shall be respect deemed be a waiver with subse- quent breach States Statutes U.S.C. rights default or matter. All action this contract are reserved to the United provided in Section 8737 of the Revised States, (41 United as amended 15). “APPLICATIONS OF PAYMENTS may, option exercised The at “16. United its by by the any payment part apply thereof charges then District United States payable by the District to the United States due and provisions this contract. under the of LANDS “DISTRICT ALL PROJECT TO INCLUDE The lands Anchor “17. District shall cause all below by can Unit reservoir which served the Owl Creek be boundaries, provided that the to be included within its Arapahoe Indian lands controlled the Shoshone and excepted. be Tribes shall OF

“CONFIRMATION CONTRACT of contract shall author- “18. The execution this of the District. If ized electorate of the District vote their contract, confirmation ceedings a vote the electors approval of this the Board Commissioners shall secure pro- of this contract. The confirmation 71-1002, compliance with Section shall be in Wyo. Comp. shall furnish the 1945. The District Stats. copies proceedings certified relat- United States ing contract. the election on and confirmation BY TO SECURE “DISTRICT AGREEMENT INDIVIDUAL USERS WATER an “19. The shall District the execution secure agreement exchange appurtenant of water for the Dempsey lands under the Lucerne and ditches form, pump. The execu- water raised the Lucerne agreement tion, filing shall be in accordance of such 71-270, inclusive, Comp. to Wyo. with 71-268 to Sections 1945, amended, ap- subject and shall be Stats. Secretary. proval of the TITLE TO CERTAIN “TRANSFER OF DISTRICT WORKS convey (a) District shall to the United “20. States, except the lien and encumbrance free all mortgage and other indicia certain lien of that 50 obligation, paragraph 21, as described below in right, (a) title, the site all and interest to of the present District; pumping plant by Lucerne constructed the (b) discharge pipe-line right-of the and way to the leading pumping plant therefor such from (c) ditch; and Lucerne the Lucerne ditch leading discharge right-of-way therefor from the pipe-line point of the the end to where it enters drainage Big (d) River; natural the to the and Horn leading wasteway right-of-way and therefor Big pumping plant River; from such the Horn to plat all as shown on the hereto attached as Ex- by part ‘B’ hibit and this reference made a hereof. right The District shall have the to remove from present pumping plant site

the Lucerne con- by salvage pump- structed District to the and the ing by facilities heretofore constructed thereon the District. (b) convey The District shall further and quitclaim right, title, to the United States all its Big and interest in the diversion dam in the Horn diverting present^ River which is used for water present pumping plant constructed convey quit- District. The District shall also right, title, claim to the United States all its pumping subject interest in the Lucerne ditch right operate, use, the District’s and easement to conveyance and maintain said ditch for long water District lands so as this contract shall remain in effect.

(c) The District shall make and record with- conveyances out cost the United States the (a) (b) sixty (60) above described in within days after the execution of this contract procure United States. The District shall and have recorded without cost to the United States all as- surances of title and affidavits which the District necessary be advised the United are proper complete show in the District fee simple property unencumbered title to said de- (a). scribed above in “PAYMENT OF INDEBTEDNESS January year On “21. fifth before 1 of the fol- para- lowing giving notice described above acquire graph (a), and cause the District shall ob- present indicia of bonds and other cancellation of ligation against outstanding To this District. now following end, during years first five each of the paragraph 8 giving described notice above on levy (a) an assessment the District shall and collect securing the irrigable purpose its lands for necessary acquiring for the cancellation funds obligation. present and other indicia bonds UNTIL WATER “LANDS NOT TO RECEIVE CERTAIN THEREOF EXECUTE OWNERS CONTRACTS “22. No water shall be furnished this con- under any tract to contract unless valid as defined this excess lands in Article of 24 the owners thereof shall have executed satisfactory contracts in recordable form Secretary agreeing to the sale of such under lands Secretary satisfactory terms conditions the prices by Secretary. fixed at sale not to exceed those the No any carry right of such shall to receive lands the until the water made available hereunder unless and by purchase price approved in the involved such sale is Secretary; upon proof representa- of fraudulent sales, tion as consideration involved to the true in such Secretary by may instruct written the the District subject any notice to deliver water refuse to sales, involved the land in such fraudulent contract and said water District thereafter shall not deliver the to such lands. AND SALE OF LANDS

“VALUATION lands, irrigable (a) the excess value “23. defined, the as purpose within the for hereinafter District con- Articles and 24 of this of this and determined, subject approval be the tract shall appraisers, Secretary, by one of the thereof designated Secretary, one of whom be shall designated District, one be whom shall designated by appraisers two whom be shall designated by District. and the so following govern the principles (b) The shall appraisal: (1) given No shall such value be lands on ac- existing prospective possibility

count of the securing Project. water from the (2) improvements The value of land on the appraisal at time of said shall be included therein, separately shall be in but also set forth appraisal. (c) appraisals The cost two first subsequent appraisal requested by each States come the United paid by shall be the United States and be- part constructing the cost of the Owl subsequent appraisals Creek Unit. The cost of re- quested by paid by of such landowners shall the land- be making appraisal. owner in advance of (d) Any improvements placed made or on appraised appraisal land after the hereinabove provided appraised like manner.

“EXCESS LANDS (a) herein, “24. As used the term land’ “excess part irrigable means that land within District in excess of 160 held acres the beneficial single ownership 320 person; inor excess of ownership held in acres the beneficial of hus- joint band and wife as tenants or as tenants in ‘large common. The term owner of excess land’ means which landowner’ an means lands, and the term ‘nonexcess irrigable Project all under land not excess is land defined as herein. (b) large Each landowner as further a con- . precedent right dition to receive water for any of his excess lands shall: (1) delivery Before initial the date before expiration the of six months from the announce- thereof, first, ment whichever occurs execute a valid the contract satisfactory recordable in form to Secretary, agreeing provisions to the to herein agreeing dispose contained and his of excess persons lands accordance therewith to who can take title pro- thereto as nonexcess land as herein price vided at approved, and a not to exceed the appraised of and value such excess land within period years the of ten after date of the execution agreeing and of recordable contract further said disposed if said land not of within said so years period power conditions Secretary ten the of the shall have dispose subject to land said to the same large on behalf landowner sub- such ject provided; to conditions all herein the as and agrees District that it refuse to deliver water will any large to landowner other than for his non- excess lands until such owner the meets conditions precedent herein stated. (2) days thirty Within after the date of no- large requesting irrigable tice from the United States such designate to landowner his lands under designate project which he to desires non- as lands, District, excess file in the office of the duplicate, copy one thereof to be furnished Reclamation, District to Bureau written his designation description and so to lands selected lands, upon be failure to nonexcess and do so the designation District shall make such and mail a large landowner, notice to thereof such and in act period event the District fails to of time sonable, within such contracting as officer rea- considers designation will be made the con- tracting who 'mail officer will a notice thereof to large large the District and landowner. The by any landowner shall become bound such action contracting part on the of the District or the officer, only and the District will deliver water to designated land so be nonexcess land. AND

“RULES REGULATIONS right, “25. The reserves the so far purport may provisions thereof be consistent with contract, regulations make rules and and di- modify rectives to add them as proper necessary carry deemed in- out true meaning tent and the law and of this contract. Such regulations may provide operating pro- rules and practices, accounting procedures prac- cedures tices, and the maintenance of funds and de- reserve agrees funds, to observe District preciation regulations rules, directives. ORGANIZATION- IN DISTRICT “CHANGES LIMITED —SUCCESSORS ASSIGNMENT OBLIGATED AND ASSIGNS in effect and after contract (a) this While “26. met, no 17 have been requirements of Article District, by inclusion change made shall be lands, by proceedings dissolve to or exclusion Secretary’s written otherwise, except upon the or consent thereto. ap- shall (b) provisions of contract The this assigns of the ply to the successor and bind assignment hereto, or transfer parties no but contract, any part or interest thereof or this approved the Sec- therein, valid until shall be retary. “NOTICES required the con- Any or “27. notice authorized except given, properly where deemed tract shall be post- specifically provided, if mailed otherwise herein age prepaid, Region Director, 6, Regional Bu- Montana, Reclamation, Billings, on behalf reau of States, of the Owl and to United Wyoming, Thermopolis, District, on Irrigation Creek designation person the District. behalf be chang- person be or the address of such notified any similar notice. time ed at EMPLOYEES OR AGAINST “DISCRIMINATION PROHIBITED EMPLOYMENT FOR APPLICANTS against not The District discriminate “28. shall race, employment applicant for because employee or origin, require an creed, color, identical and shall national or relating included in contracts provision provision, performance of contract. This to, ac- to, however, tivities of volved refer extend or cover not does not related to District which are in- performance contract. of this in the ON “CONTINGENT APPROPRIATIONS OR ALLOTMENTS OF FUNDS expenditure any money “29. perform- The of or the any by provided of ance work the United States herein may require by appropriations money for which of Congress or contingent allotment the of funds shall be appropriations being on such or The allotments made. Congress appropriate failure of to funds or the failure any however, not, shall allotment funds relieve obligations any the District from theretofore accrued give right under this contract nor the District the to any executory terminate this contract as to of its fea- liability against tures. No shall accrue the United appropriated case such funds are not or al- lotted. “OFFICIALS NOT TO BENEFIT Delegate Congress “30. No Member orof to or Resi- shall dent Commissioner part be admitted any or share of this contract toor benefit that arise herefrom, but this restriction shall not be construed to this corporation extend contract if made with a general company for its benefit. WHEREOF, parties IN WITNESS the hereto have signed day year their names the first above written. UNITED STATES OF AMERICA By . Secretary

Title: of the Interior OWL CREEK IRRIGATION DISTRICT By: L. F. Thornton Title: Chairman of the Board” ATTEST: (Seal)

FRED E. OSTBERG by extensive final or order decree entered court, sought, is review of which also contains things among following provisions: other present “Providing District indebtedness 1, July §19,000.00 from with interest the amount of irrigable said 1950, enlarged paid land within shall be following during years five the first District requiring furnishing pay- of water therefor and the ment Bureau Reclamation said District §21,740 plus operation mainten- sum of annual begin years years, to five period of 35 for ance costs after the water Bureau available made District, delivery the lands in said Reclamation for operation first paid during only maintenance to be attaching 5-year period, a schedule assess- totaling'§1,- construction ments for benefits 410,750.00, ” * * * apparently part order con- This of the under review paragraph attempts carry effect 21 firms and into quoted. operates impose the contract above It of as objecting upon private of landowners indebtedness the incurring they part §19,000.00 in and to which had no payment they of held. which now decline be pleading that the fol- Petitioners’ aforesaid stated lowing ap- question proposition submitted for was rejection proval of which or to the landowners lands by works constructed could be the reclamation served by the to-wit: Government “ Irrigation District, acting by ‘Shall the Owl Creek through Board of at the discretion of its Commis- and sioners, America, ance draft, a contract with the United States of enter into substantially in accord- such contract Region identified 6 with the form of contract 8/26/49, 12/22/47, Rev. Rev. Rev. 8/3/49, 1/17/50, 12/16/49, Rev. Rev. 11/10/49, Rev. 9/8/49, things, among provide, other for the Dis- which will trict’s payment of of its to the United States America operating and proportionate share of cost of main- taining Unit of Missouri River Basin Owl Creek §21,740 Project, payment payable, plus an at annual option District, the vari- in accordance with of the formula, §21,740 (or payment such annual able its alternative) by the District’s variable to be assured

57 against assessment of the District annual lands computed accordance with annual rates similar to or on the same rate basis as the annual assessments shown ” ‘A’ Exhibit said contract.’ on petitioners’ pleading incorporates para- then its graph “XI” numbered which states verbatim: following “That the election said Board of Commission- canvassed the vote and determined that ers 98% by acreage within said District which could be served Unit, lands Creek exclusive of the controlled said Owl tribes, by Arapahoe the Shoshone and Indian had been represented majority of the at such election and that a persons proval acreage voting ap- were favor of the contract; of said that one and execution (110) person hundred and ten ballots were cast in 15,069 by proxy represented and a total of acres were ballots, 9,407 thereby. representing That a total 68 irrigable land, ‘For acres of were marked the Con- 8,313 tract,’ ballots, representing which number 51 acres, by entrymen, cast or were landowners within ballots, District, present voting; who were 11 acres, representing of landowners or by proxy 833 were cast on behalf entrymen Dis- with land within the trict; ballots, acres, representing and 6 were cast entrymen or of land outside District owners Unit; could be served said Creek which Owl 5,661 ballots, representing total of 42 acres of irri- ‘Against gable Contract,’ land, were marked ballots, representing 2,848 which number acres entrymen Dis- were cast landowners within the voting; ballots, present repre- 5 trict who were senting owners and 16 owners or could acres, by proxy 455 cast land- were on behalf of entrymen District; land with within the 2,358 by acres, ballots, representing were cast entrymen land outside the District which of pursuant served said Creek Unit. That be Owl Commissioners, by to said election said Board of tion dated resolu- 1, 1950, March authorized the execution of pro- directed the institution of these said contract and ceedings securing purpose for the this Court’s ex- amination, approval, contract and confirmation said' proceedings leading up to the and the execution assessment for construction same the benefits and 58 securing purpose the required therein and the irrigable lands District of which within the inclusion Unit, may controlled except lands Creek the be served said Owl Arapahoe Indian the Shoshone and

tribes.” may- question that the

In connection it be noted this quoted is not above submitted landowners “Region draft, altogether language clear. the While 8/3/49, 12/22/47, 8/26/49, Rev. Rev. Rev. 9/8/49, 11/10/49, 12/16/49, Rev. Rev. Rev. 1/17/50,” “plus $21,740 payable, payment an at also annual option District, in the of the accordance with a variable formula, $21,740 (or payment its such annual is, alternative) say least, its variable the obscure in “Region meaning, may perhaps it deduced that be might considered indicate 12/22/47,” etc. be draft number of the contract was revised before the times submitted; being language quot- the remainder of'the problematical really decidedly as to what it meant. ed is extremely ranch landowners whether the It is doubtful question understood what on this submitted who voted they voting. proposition was on which were While the, Arapa- Indian Shoshone and the so-called lands consisting approximately acres of of 2300 hoe tribes topographically irrigable appear land to be within district, newly petitioners proposed area of requested lands ex- that these Indian nevertheless request the order of the from that area. This cluded carry out —for after de- court undertook district included, “that scribing the order states lands (of district) so as should be amended boundaries (the lands) tribal from said to exclude said lands district.” imperative point it it be noted what

At given by authority purpose our State law to are, making with contracts District Board In 71-813 of America. Section W.C.S. United

59 dealing organization 1945 with of Commission- districts, powers ers such their of and duties the stat- presi- ute directs them to elect one of their number as appoint secretary may dent and who or treasurer may of not be a member These officers are board. then directed to transact the business of the district powers with certain so do. exe- When the matter of cuting contracts with the United of States America quite was considered the lawmakers the latter were explicit they said: purpose acquiring government “For the control over of pro- complying land within the district and with the congress 11, (U.S. August

visions act 1916 of C., 630), US, 621-630; F.C.A., US, Tit. 9A Tit. 621- §§ §§ authority the board shall in- have to make such vestigation, and thereon, representation and based may secretary assurance the interior as requisite; may be United States for the tenance and the board contract with construction, operation and main- necessary delivery works for the provisions distribution of water under the therefrom (U.S.C., 43, of the federal reclamation act Tit. 371 § seq; F.C.A., et atory 9A seq.), et and all amend- § acts supplementary thereof and thereto and the rules regulations thereunder, established or for the as- sumption, principal guarantor of the indebted- ness to the United on account of district lands.” (Italics supplied.) kept Just here it should be mind what will later fully considered, expert herein be more that Bureau testimony government tells us that there is no land upon the district which operate. this section additionally quite

To make it clear what was intend- statute, noted, proceeded ed it will to cite cer- Law, sections Federal tain “The of con- viz.: act gress August 11, 1916, (U.S.C., 43, 621-630; Tit. §§ F.C.A., 43, ”, 621-630) 9A Tit. and then said —“the §§ authority investigation, board shall have to make such representation thereon, and and based assurance such secretary may requisite; interior be to the of the as may and the board with United contract operation the States construction, the for the and maintenance of necessary delivery works for of the and distribution provisions under the federal water therefrom the of seq; (U.S.C., 43, §371 act Tit. et 9A reclamation F.C.A., § amendatory seq.), and all 371 et acts thereof regula- supplementary and thereto the rules and and assumption, thereunder, or for established the tions guarantor principal or of the indebtedness in- States on account of district lands.” An United spection last above cited of sections indicates This, “public only being lands” were considered. would explain provisions of to a number in the contract seem quoted if and which are difficultto understand

above only sought “privately lands” were to owned be dealt through Board and the United its with Secretary in Interior the contract forth above of the set increasingly always clear when that it is becomes] and provides: kept 621 U.S.C.A. in mind. Section any under the in of the United States State “When August irrigation prior has, to there of said State laws organized 11, 1916, shall there- and created or been any irrigation organized district created after and be irrigating purpose of situated within for the lands irrigation irrigation district, and which dis- in said be to be created there shall included trict so created or any pub- public United,States, such lands of of irrigation district, when lic lands so in said situated irriga- subject tion entry, within to and entered lands said district, have which no been certificates for final designated may issued, the Interior of which be approval map in the him irrigation provided plat in an district as section 623 hereby chapter, be of subject in are made and declared to this provisions of the all laws the State relating shall be which lands situated regulation irrigation organization, government, districts irrigation of arid the reclamation and agricultural purposes, lands for to the same extent the same manner in which the like lands a ownership private character held under are subject Provided,, laws: said That the United States persons legally holding unpatented and all lands under entry public made under the land laws United rights, States are accorded all the privileges, benefits exemptions given by said persons State laws to holding lands of a like character private under owner- ship, except as hereinafter provided: otherwise Pro- further, vided irrigation chapter That apply shall not comprising district majority acreage (Aug. 11, 1916, unentered land. 319, 1, c. § Stat. 506.)” (Italics supplied). What is said in the paragraph quoted last above supplemented supported by appears what Federal provisions Reclamation Act in Title 43 U.S. seq C.A. 371 amendatory § et and its acts thereafter cited in section 71-813 W.C.S. 1945 set out above.

By adopting unnecessary these views it is made supra consider whether 71-813 § when construed with 22, subdivisions 23 and 24 of the contract between Secretary of the Interior and the District fall within prohibitions. is, course, constitutional For it of rule pass constitutionality that “Courts will not on the of a necessity pending statute unless the in therefor clearly appears,” Tavegia Bromley, Wyo. case vs. 67 93, 106; (2d) 214 Pac. 975. will “Courts not declare invalid, law upheld if it any can be on reasonable ground.” Bond, Wyo. 236, Arnold vs. 47 (2d) 34 Pac. 28; League Taxpayers’ County, of Wyo. Carbon vs. Wyo. 251, 49 McPherson 54 (2d) 897; Pac. Stewart City Cheyenne Wyo. 497, et al vs. of 60 (2d) 154 Pac. 355. briefly

Let us now review those sections of the con- mentioned, definitely tract aforesaid which have been 22, many pro- viz: 23 and 24. The source of of these quite evident when becomes in this contract

visions 25, 1926, terminology May of the Act of we examine 388, 46, Amended Kecla- Chapter 649 of the Stat. § of 1952 of Title Parts Act set out in Pocket mation 97, section 423e reads pages 98 where 43 U.S.C.A. practically follows: verbatim as upon completion “No water shall be delivered any project project or new a new division-of initiated 1926, May 25, in until a after contract or contracts approved by the of the shall form Interior irrigation irriga been made with an district have organized providing under law tion districts State payment by the district or of con districts cost structing, operating, ing such maintaining the works dur States, they the time are in control of the United constructing repaid within costs such years Secretary may as the find to be neces terms sary, forty years in event not more than from the the to, public notice hereinafter referred date or contracts execution of said contract confirmed shall have been competent juris of a court of decree Prior in connection with the settlement diction. to or development projects, of these of each the Secre tary authorized of the Interior in his discretion agreement proper with the enter into authorities projects the State or wherein or divisions States said whereby cooper located State or shall are ate with of States promoting the United in the settlement completion in projects or divisions after securing selecting contract or of settlers. Such irrigation districts re with hereinbefore contracts ferred to shall irrigable provide land further that all private ownership by any one held owner excess irrigable sixty ap of one hundred praised of the shall acres be prescribed Secretary by in a manner to' be the prices by Interior and the sale thereof fixed the Secretary on the basis of its actual fide at bona value appraisal proposed reference without to the date of the irrigation works; no of the and that such construction pro any lands so held shall receive water from excess ject if the thereof or division owners shall refuse to valid recordable contracts the sale such execute satisfactory to the under terms and conditions lands Secretary prices of the Interior and at not to exceed by Secretary Interior; those fixed the the charges against until one-half the construction said fully paid any lands shall been have no such sale right carry lands shall the to water receive unless purchase price ap until in involved such sale proved by proof Secretary upon of the Interior and that representation of fraudulent as to the true con Secretary in sideration involved such sales the right Interior is authorized to cancel the at water taching to the such land involved in fraudulent sales: further, operation Provided That the and maintenance charges projects on account of in said and divi lands paid annually shall sions in advance not later than ” * * * March 1.

Subdivision 22 of the contract aforesaid uses language as we have seen:

“LANDS NOT TO RECEIVE WATER UNTIL

OWNERS THEREOF EXECUTE CERTAIN

CONTRACTS “22. No water shall be furnished under this contract any to tract unless the excess lands as defined in Article 24 con- this executed shall owners thereof have satisfactory valid recordable in form to the contracts agreeing Secretary of such lands under sale satisfactory terms and conditions Secretary. prices at No ceive water made not to exceed fixed those any carry right sale of such lands shall to re- available hereunder unless and until purchase price approved involved such in proof sale is Secretary; upon rep- of fraudulent in resentation as to true consideration involved sales, Secretary may instruct District such subject refuse written notice to deliver water to this contract the land involved such fraudulent sales, and the District thereafter shall not said deliver water to lands.” language regarded applicable If this should be privately owned lands the thereof if he under- owner buy acres, takes to lands excess of 160 320 acres get married, in the event he is can no water from the 64 through unless storage district reservoir the

proposed satis- contract recordable delivers a he executes lo- Interior, an official Secretary of the factory to the seaboard, Atlantic capital on the nation’s the cated training, or education by experience, who very the needs of little about fact knows matter of central west users and water owners the ranch terms conditions Wyoming on Owl Creek. re- approval and the meet also must contracts they are fair or official whether that quirements of himself hav- landowner to landowner —the unfair those terms. If propose about nothing ing whatever Secretary of the Interior low price fixed is forced to sell land at will still be his landowner do or The excess he wishes to so not. whether a loss prevented will be from secur- held even lands thus then necessary ing for their use unless the Secre- water Upon have the true tary to allow them to it. fit sees being not shown the of the sale consideration water decline to allow fraudulent and treat it as given words the landowner such lands. In other to be course, is, mercy entirely of that official. It is at provi- private landowner consents if true that object a dif- does not to them character sions of this presented. ferent situation Irrigation In Lincoln Land Co. vs. Goshen District 373, Wyo. 229, pointed 293 Pac. it that was out dispose landowner consent to hold- should a of excess ings irriga- after the construction of the he could not irrigation, making water es- available tion works ground cape on the excess lands assessment Naturally, thing benefited. the same would were not public involved were lands true if the lands subject jurisdiction to its and owned United States charged duty officials with the of adminis- it. The subject they fit tering lands can act as see those Congress. directives 23 declares that:

Subdivision LANDS AND OF “VALUATION SALE lands, irrigable (a) the excess “23. The value of the defined, for the District hereinafter within as purposes this 24 of 22 and Articles ap- subject determined, to the shall contract be Secretary, proval by by appraisers, the thereof designated Secretary, by one of whom shall be one of and.one appraisers designated District, by shall whom be designated by the two of whom shall be designated by so the District. (b) following principles govern The shall appraisal: given (1) on shall such lands No value be existing prospective possibility

account of the securing Project. water from the (2) improvements on the land value of appraisal included at the time of said shall be therein, separately in but shall also forth be set appraisal. appraisals (c) two The cost of the first subsequent appraisal requested the United each and be- paid United States States shall be come a constructing part cost the Owl of the subsequent appraisals Creek Unit. The cost of requested by owner in paid by landowners shall be the land- making appraisal. advance of such (d) Any improvements placed made or on appraised appraisal after land hereinabove provided appraised be in like manner.” original plain private It is that the excess or land- helpless imposition under of such owner would be fixing at all in terms of sale. He would have no voice price should In es- a at which his excess lands be sold.

tablishing prices on possible it lands would not be for him to take into consideration factors which in ordinary always cases he would reckon with. No mat- might ter consequence how severe his loss be in of such arrangement, obliged an would he submit. This hardly private the character of contract landown- they customarily making ers are in the habit of when deal with one another. usually Their contracts involve the elements of fairness reasonableness. Greybull Valley Irrigation

In re Wyo. District 52 479, 502, (2d) 339, 347, 76 Pac. this court said in re- ferring powers irri- Commissioners of an gation they right district have “the to meet all conditions government, made the United States at least unreasonable, not and if not in conflict with if provisions the laws of the state.” The of subdivisions supra appear and 23 do not to us as reasonable.

Subdivision 24 of the contract which the district approved court has and confirmed declares that:

“EXCESS LANDS (a) herein, “24. As used ‘excess the term land’ part irrigable means that of the land within the District ficial in excess of 160 held in the acres bene- single ownership any person; of or in excess of ownership acres held the beneficial joint husband and wife as tenants or as tenants ‘large in common. The term landowner’ means an lands, owner of excess and the term ‘nonexcess irrigable land’ means all Project land under the which is not land excess as defined herein. (b) large Each landowner as a further con- _ precedent right dition to the to receive water for any of his excess lands shall: (1) delivery Before the initial date or before expiration the ment of six months from announce- thereof, first, whichever occurs execute a satisfactory to in form recordable contract valid provisions herein agreeing Secretary, to dispose agreeing his excess and to contained land in accordance therewith who persons can to take) pro- herein land as thereto nonexcess title as approved, price a not to exceed and at vided appraised within excess land value of such of the execution years date period of said after the of ten agreeing further recordable contract disposed within said land is not if said so years period power shall have the of ten subject dispose! to to of said land the same large sub- landowner conditions on behalf such ject provided; and the herein to conditions all as agrees it water District that will refuse to deliver large his non- landowner other than for until such owner meets the condi- excess lands precedent herein stated. tions (2) thirty days after the date no- Within large requesting tice the United such from designate irrigable lands under landowner his designate non- project which he desires to District, lands, file in the office of the excess duplicate, District, by the copy thereof to be furnished one Keclamation, his writ- Bureau to the designation description so of lands se- ten lands, upon failure lected to be nonexcess do so the District shall designation and make such landowner, large thereof to such mail a notice act within such District fails to event the in the contracting considers period as the of time officer designation reasonable, will be made contracting officer notice thereof who will mail a large large District and the landowner. The by any bound such action landowner shall become on the contracting part District or the only officer, District will deliver water and the designated (Ital- be nonexcess land.” to land so supplied). ics large specifically defined in this landowner is imposed upon him. and additional burdens subdivision lands, until to receive water for excess He forbidden is acquiesces he all the conditions which this in upon preceding paragraphs laid him. the two When are weight conditions can and how under ordinarily progress? American farmer and habit- He tillage ually than to more land for endeavors secure began to noted he with. It be acres under this. In subdivisions cannot do these he country arid and semi-arid western unless he can hold comparatively large and control a amount his of land complete life’s work will result in a failure. In the rich arable East lands of the it vital is not that the limits so holdings enlarged; of land be but even there an if practices frugality management owner and careful plot ground comparatively small leads to success goal every wealth —the citizen American who beginning courtry in this won the west for the nation. questioned These contract clauses which are if thus applied unreasonable, private to owners land are deprive coercive property devised them of their against invoking their will without the condemna- tory processes require compensation which due be processes embody made when land is thus taken. These protective machinery the full of the law as concerns private property owner. These clauses now drawn question (subdivisions 22, 24) 23 and are subversive elementary rights of the most our which forefathers English country carried from law to this and which Though appears were in their formation. it centuries from the record that the contract re- aforesaid was objectionable vised no less than seven times these clauses were not allowed to eliminated therefrom. quite

It is if obvious contract clauses these were light be scrutinized under the of familiar constitutional they However, necessarily would fall. limitations has already appeared they do not have be so examined testimony supplied by record there is in the reports employees of the official the of Bureau of major ‘portion Reclamation the that the or of 86.5% irrigation pri- land within the is area the district of vately remaining owned the while land 13.5% comprising about 2300 acres is said district tribal have, indicated, already Indian lands which been definitely excluded, by the re- court order here under view, irrigation from the district area. In other words privately owned which should be excluded lands by from district are those which are held non- consenting parties thereto, parties i.e. who ob- ject having to their included area. lands in the district them, shows, Indeed most the record were excluded by agreement parties therefrom and their coun- previously sel in the recreated district. perceive

It private is difficult to lands held in ownership quarter century for more than a of a —as many objectors lands owned have been— required can be oper- forced into a district which is to ate under a compel contract devised to the owner to dispose property of some of his whether he wishes do so or not and at valuations which meet his emphatic disapproval, concerning which has he permitted nothing say. Including been to have lands n —unless the United or whose owners owned have consented to be so bound —in district boundaries obligations hardly “just” under such we think —the test of ultimate whether lands should be included irrigation (Sec. excluded in an district. 71-816 W.C.S. 1945). surprising objecting It is not find an land- testifying land, it owner that he tried to had sell his practically “they sold and: looked into the records up. found out contract had been written I don’t they dropped know hot where it was me like a from — potato.”

Finally provision it to be observed that there is no transferring involved for the title the contract here irrigation pump- proposed works—the dam

ing plant of America to the United States —from Irrigation paid latter District even after the has (the amount §1,410,750.00, Interior paid to be Interior the Dis- trict) project ; remainder of the cost of the which totals between three and four million dollars is charged pay- off Reclamation Bureau to tax' authority ers of the United do not find States. We vested in the of the District law to Commissioners irrigation pay proposed the amount due for these works obtaining property at without least the district the they payments for which make Dis- out period many years. trict’s over assessments the order what said that It results from has been County Springs re- under of the district of Hot court with instruc- view reversed and remanded should be privately all ob- owned lands of tions that jectors pro- excluded from the area should be irrigation posed district, and the contract aforesaid with the views should be rectified and altered accord expressed. herein

Reversed with instructions. J.,

Blume, J., Ilsley, C. concur. ON PETITION FOR REHEARING (No. 2557; 1953; 16th, (2d) 220) June 258 Pae.

OPINION Riner, Justice: respondents filed an extended in this case have

petition re-hearing They thereof. undertake though every criticize conclusion reached this court opinion only rendered and delivered af- filed was thorough record, study ter a and careful decree district court and the revised contract through between the United America Irrigation Secretary of the Interior and the Owl Creek approved District which contract the decree aforesaid and confirmed. court, constituted,

The members of the as then un- agreed animously result reached in case that the only reasonable, in this court was not fair and but just, prevented the landowners in the Owl Creek being District from drawn into and an bound agreement which were unable to view in other we light inequitable, than that it was unfair and in serious disregard rights of the were landowners who not ranch folk and were learned in the law and who confidently they protected believed that would importance by matter of this courts State. pointed opinion

It was out in the filed herein that appellants were, by said contract and decree afore- said, obligated they liquidate an indebtedness which incurring designed part had no and which was only supplemental comparative- to furnish water to a ly part proposed small the district and at no time regarded being it the that was as in least beneficial to located what part the lands which were in district generally “upper to in is referred the record as the distinguished from area” the area” as the “middle by was and no claim made “Lucerne area.” There is “upper respondents lands in the area” were that the any way pump- the so-called Lucerne in benefited ing and owned the 2295 acres unit as established acre- “Lucerne or lower area.” That of lands the $19,000 age never that claimed the indebtedness has portion unpaid the cost of unit which is this proportionately “upper from the should exacted Respondents that admit “the lands area” landowners. receiving pumping plant from Lucerne water only being lands now benefited therefrom.” are the apparent the authorities cited relied It that upon by respondents petition in their for rehear- phase ing case not it concerns are invariably They point. the annexed ter- assume ritory will be That situation not ob- benefited. does tain here. original opinion respon- and in stated in the

As irrigated in The dents’ brief: “1. The lands Owl Creek Valley (a) fall in areas: The Lucerne lower three or one; embraced in District Number area Commissioner (b) in Commissioner Dis- the Middle area embraced (c) two; Fork and Mid- trict Number South Upper area, areas, or often referred to as dle Fork area, comprising Fork Commissioner District South Lucerne “lower” three.” The Number according district to the record “middle” areas of the proposed ir- most benefit from would derive the “upper” proposed rigation works, en- area of larged very little if derive district would benefit. proposed ap- Lucerne area as The “lower” or approximately court proved contains the district approved middle area acres. The has some- 8175.84 74

thing 16,158.02 acreage over approximately less 2300 acres included in the ranch tribal lands of the Sho- Arapahoe shoni and Indians which were excluded from though the district topographical within its boundar- previously by ies as “upper” fixed court order. The enlarged area as for assessment the final order of the district court contains about 4500 acres. The acreage approved total of the three areas for assess- ment the trial approximately court amount 30,000 acres. The “lower” “middle” can areas grow designated crops what are peas “row” such as “upper area”, and beans. The due to its elevation growing season, practically short is confined to growing forage crops consequently relies on cattle raising mainly industry. as an

The proposed new Owl unit Creek to increase the pumping larger capacity Lucerne unit to a so as to acreage embrace an additional of 4421 instead of the pumping 2235 originally acres for which the unit was designed. accordingly urged It the lands in “upper” thereby area will be benefited because the lands in the Lucerne and “middle” areas will use provided the additional water thus “upper” and the area lands will not need to release of the water of Owl so that it Creek flow down meet the de- of the downstream mands water users.

Paragraph proposed 19 of the contract aforesaid evidently was drafted with this contention in mind for it states:

“19. shall The District secure the execution of an agreement exchange appurte- of water nant Dempsey lands under the Lucerne and ditches for water raised pump. the Lucerne form, execution, filing agreement of such shall be in accordance with Sections 71-268 to inclusive, Wyo. 71-270 Comp. 1945, Stats.

75 subject approval amended, shall Secretary.” inclusive 71-268 to 71-270 W.C.S. but sections underground only with which this with waters deal litigation concerned. is not Wyoming

However, Chapter 116 1947 Sec- Laws (Sections in- to 4 71-409 to 71-412 inclusive tions exchange 1945) provide of for does clusive W.C.S. possible that appropriators and it is between water Law. refer that Session 19 intended to Article 116) (Chapter : 1 thereof reads Section rights appropriative in and to of “The owners Wyoming stream, spring, any of natural use of waters lake water, where either of still or other collection appropriation at times insuf- (a) of the is the course appropriation, (b) a satisfy fully ficient fuller of the water utilization State’s conservation and accomplished, may resultantly ar- de- can be resources range by agreement themselves between storage water livery either or direct and use flow of another source.” from (Italics supplied.) exchange must be made that this It will be observed agreement agreement”. that will be obtain- “by How supra al- is not the district under Article ed “upper” together of the when the landowners clear part satisfied with the water are for the most area rights they need they feel that do not now have and ap- of the testified to several more water as was noted objectors. connection it be pellant In this in contract aforesaid Sec- that under the revised also “construction thereof it is stated tion 7 option not, at the United Unit shall Creek Owl completed until the district has commenced States be quoted forth,” in Article 19 and 20 above set the action pro- say that! unless the district infra. That is exchange agreement in between water users cures an appellants middle and the the Lucerne and objectors areas proceeding this with reference to the rights involved, not water the United States need pro- Unit commence construction of Owl Creek exchange ject noted at all. It is also to be that these “subject agreements approval to be are Engineer Secretary” the Interior. The State charged by law, State, the official with ad- this ministration of the water laws of

Wyoming ignored. considering It is contended that court erred in “the so-called Indian” ranch lands the Shoshoni Arapahoe public lands of the United tribes to original opinion We do not seem to find in the States. considering our these such statement relative to anything they are, than other what viz: lands to be occupied of the Indian claimants and wards lands — the title of which remains lands Government the United States. pointed

Complaint that the court out that is made paid the district has after even Interior nearly and a half million the land- one dollars proposed not have title to the Anchor owners are to significant irrigation Yet it and other works. is Dam obligated by nevertheless is the re- that the district decidedly to differ- contract aforesaid act in a vised ent manner. enjoins Article referred above that: 20 to (a) convey The District shall to the United “20. except States, lien of all and free encumbrance mortgage certain in- the lien of that and other obligation, para- dicia of as described below in graph site of the right, (a) 21, and the all title interest to present pumping plant Lucerne con- discharge by right-of-way (b) pipe- District; the structed the leading line and pumping plant therefor from such (c) ditch; the to Lucerne the leading right-of-way Lucerne ditch and therefor discharge pipe-line from the end of the to the drainage point the to enters a natural where it wasteway Big right-of-way (d) River; and Horn and the pump- leading from such therefor Big ing plant River; all shown on Horn as by plat ‘B’ attached Exhibit and the hereto as part District reference hereof. The this made a right the from the site shall have to remove present plant pumping constructed the Lucerne salvage pumping by ities facil- the District and to the by Dis- heretofore constructed thereon trict. convey quit “b) and further District shall The right, and all title its claim to the United States interest in the diversion River Big Horn dam in diverting presently water used for which is by present plant pumping constructed

to quit convey and also District. District shall The right, title and States all its claim to the United subject pumping ditch Lucerne in the interest op right use, easement and to the District’s convey erate, ance of ditch for the maintain said long for so water to District lands in remain effect. contract shall “(c) with- and record District make The shall conveyances United States out cost above described (60) sixty (a) (b) within days United States. of this contract after the execution procure District shall cost to the United and recorded without have affidavits which all District of title assurances are the United States be advised necessary plete proper District com- to show in the prop- simple said title to unencumbered fee (a) erty ”. described above again Article be recalled here it should required supra quoted not the United States looking step of the Owl the construction one take obeys the mandate district Unit until the Creek upon by Article 20. In brief it said contract laid required to transfer title to not States is United irrigation may construct works it district to pay receive for to the extent of one and half million dollars sixty but the district (60) days within by execution of this revised contract the United States anything- and before party is done last men- convey irrigation tioned must to it all the works the district owns expense. deed at its own cost and It easy not Wyoming Legislature to believe that the in- put stamp tended to approval upon of its transactions. At least there is no hint of our it in statutory law.

The constitution of this State asserts an immortal truism, may it appropriately be here remembered. Its Section 7 of Article I declares that: “Absolute, arbitrary power lives, liberty over the property of freemen republic, exists nowhere in a not largest majority.” even in the disguised

It cannot be arbitrary power over property of the landowners of the district is at- tempted to be Secretary established and vested in the the Interior provisions certain of this revised contract which we have occasion had to discuss here- original opinion in and in the on file in case. It should not be overlooked either that Article 25 power contract revised vests additional in the Secretary hands thus: right, “25. The reserves so far as purport may thereof with the consistent provisions regulations modify sary contract, of this to make rules and directives and to add to and proper them as be deemed and neces- carry meaning out the true intent and the law and of this contract. Such rules and regulations may provide operating procedures practices, accounting procedures prac- tices, and the maintenance of reserve funds and depreciation funds, observe such agrees and the District rules, regulations and directives.” “rules, regulations What those and directives” shall only Secretary can be found the mind of the only imposed appears the Interior. The limit to be they provisions should be “consistent with the of this tq “carry contract” and out the true intent and mean- ing of the law and of this contract.” It would seem provisions these of Article 25 to sur- undertake right render of the Interior interpret contract, construe and the revised a function only vested By the courts of this State. Article appear advantage 25 aforesaid it would also that having indicating just a definite written contract party rightfully what each can exact from other altogether swept away. has been respondents express alarm that the reclama-

tion of the arid lands of our State will be hindered prevented by the decision of this court. We must agree. decline Contracts of the nature hereinabove certainly can incorporat- discussed be framed without ing inequities arbitrary provisions, which we discussed, agree- have and which are embodied in the bar. That ment at contract was revised than no less (7) persuaded seven times before the District was perceived why it. No reason execute additional part conscientious efforts on drew those who may produced satisfactory it not have a much more instrument. extending purpose

No useful would be served opinion per- further. We have found that over a quarter century petitions iod of more than a for re-hearing after decisions of this court have been have, part, simply re-argued handed down for the most repeated fully which views were considered original opinion filed, before court was and after consideration, rejected. petition The instant re-hearing exception. to re- must decline We is no paths already travelled. traverse Mr. appropriately mention that while here We case, argument of this Ilsley, who sat on Justice many preceded conferences which participated in the filed, opinion in the was disposition, concurred its expressing passing from prevented by sudden his said, formally approval what has above been his from what we remember yet, have little doubt we matter, emphatically he would on this views his agreed has forth. hereinabove been set have to what ability long people have known his of this State practical approach lawyer, to all honest and his as a involving irrigation contracts. questions law and obliged peti- we to rule that more are Without re-hearing denied. should be tion for Denied. J.,

Blume, C. concurs.

Case Details

Case Name: Owl Creek Irrigation District v. Bryson

Court Name: Wyoming Supreme Court

Date Published: Feb 17, 1953

Citation: 253 P.2d 867

Docket Number: 2557

Court Abbreviation: Wyo.