95 P.2d 74 | Wyo. | 1939
This is an action brought by plaintiff on April 27, 1938, to declare the water rights of the defendants null and void. From a judgment for the defendants the plaintiff has taken his appeal. One Bryan was one of the defendants. He defaulted. His land is other than that of the other defendants, and it is not necessary to make further reference to him. The parties will be referred to as in the case below, or by name.
The creek involved in this case is Lumis or Madison Creek, which flows northerly through the SE/4NE/4 of Sec. 12, T. 32, R. 81, owned by defendant Sheean, and the NE/4NE/4 of Sec. 12, same township and range, owned by defendants Nichols and Howlett, thence northerly into Section 1 of the same township and range, where part of the lands of the plaintiff are located, and whose lands accordingly are located below those of the defendants, and northwesterly thereof. The defendants Nichols and Howlett derive their title from one Nick Dickenson, who became the owner thereof on January 12, 1929, prior to the time of the initiation of the water rights directly to be mentioned, and who used the water here in controversy from 1929 to the time of his death in 1937. Their lands will hereinafter be referred to as the Dickenson land. The defendant Sheean derives her title to the SE/4NE/4 above mentioned through one Mike S. Ryan, who was the owner thereof from 1911 to 1933, the time of his *12 death. The plaintiff has been the owner of the land for which he seeks the water here in controversy since 1933. The water rights which are claimed to be void were initiated by applications filed on August 17, 1929, by one Hill, a brother-in-law of Mike S. Ryan, with the State Engineer. These applications sought to appropriate water sufficient to irrigate 30 acres of land on the NE/4NE/4 above mentioned, then owned by Dickenson, and water sufficient to irrigate 12 acres of land in the SE/4NE/4 above mentioned, then owned by Mike S. Ryan. The applications were approved and permits issued thereon. The source of the water sought to be appropriated comes directly from four different springs, tributaries of Lumis Creek, namely, House, Twin and Hill Springs, all located on the SE/4NE/4 aforesaid, and from Red Spring, located in Lot 3 of Sec. 7, T. 32, R. 80, directly east of the above NE/4NE/4, then also owned by Mike S. Ryan, and now owned by the defendant Sheean. On November 22, 1929, subsequent to the filing of the applications above mentioned, Hill gave a quitclaim deed to Mike S. Ryan of all his interest in the lands of Ryan and also that of Dickenson, although what interest he had therein does not appear, and he at the same time quit-claimed all his interest to Ryan in and to the applications and permits above mentioned. On December 31, 1931, certificates of appropriation were issued to Mike S. Ryan, pursuant to the above mentioned permits, granting water rights with a priority of August 17, 1929. Plaintiff's predecessor in interest made an application to the State Engineer to appropriate water from Lumis or Madison Creek sufficient to irrigate 14 acres of land. This application was filed on September 3, 1929, and a certificate of appropriation was issued pursuant thereto on December 26, 1934, with a priority of September 3, 1929.
1. So far as appears from the record, Hill had no *13
interest in the land on which the springs, the source of the water mentioned in his applications, are located. It is, accordingly, contended by counsel for the plaintiff that Hill was a trespasser on these lands, and that a water right cannot be initiated or acquired by trespass. He cites a number of authorities, including Bassett v. Swenson,
2. As above stated, Hill, when he made the applications mentioned, did not own the land for which he *15 sought a water right, nor does it appear that he was in possession thereof or had any possessory right thereto. Furthermore, the certificates of appropriation were issued to Mike S. Ryan. He had no interest in the Dickenson land (NE/4NE/4). There may be sufficient reasons for these circuitous actions in the process of appropriating the water, but the record is completely silent thereon. Hill was a brother-in-law of Ryan. That may explain his action on behalf of Ryan. But he was not related to Dickenson, and no relationship of Ryan and Dickenson appears in the record. A mistake in this respect, however, seems to be out of the question, not alone because the application and the certificates of appropriation specifically mention the Dickenson land, but also in view of the fact that even Hill testified that Dickenson used the water commencing with the year 1929 to the time of his death, and most of it on his own land. It may be mentioned in that connection that no dispute exists as between the owners of the Dickenson land and Florence Sheean, owner of the Ryan land.
Counsel for plaintiff contend that these appropriations are invalid, because of the lack of interest of Hill in the lands, and that the appropriation for the Dickenson land is further invalid because of the lack of interest of Ryan therein. It seems that in New Mexico and Arizona, under a specific statute, no one can make an appropriation (or perhaps initiate it) unless he owns or possesses land. See 67 C.J. 894; In Re Determination of Relative Rights, etc.,
Section 122-404, Rev. St. 1931, provides that "any person, association or corporation hereafter intending to acquire the right to the beneficial use of the public water of the state of Wyoming shall * * * make an application to the state engineer for a permit to make such appropriation." This statute bears the interpretation contended for, namely, that the application shall be for the benefit of the applicant, but we think that is not the necessary interpretation. An attempted appropriation under a statute very similar (Sec. 1288x6, Compiled Laws of Utah 1907) was under consideration in the case of Sowards v. Meagher,
"May an application be made to appropriate water for a beneficial purpose so contemplated in the future? We confess that the question is open to debate and is not free from doubt. We have, however, with some hesitancy reached the conclusion that such an application may properly be made in good faith and with an actual bona fide intention and a present design to appropriate the water for a beneficial use, though contemplated in the future, and when it is not made for the purpose of mere speculation or monopoly."
The court considered the point that the applicant might never be able to apply the water to his own lands, quoted at length from an Oregon case (hereafter mentioned) which held that the intention of an appropriator "may comprehend a use to be made by or through another person," and further stated that the applicant takes the risk that the lands may fall into the hands of another who might or might not be willing to take the water sought to be appropriated by the applicant. The court remarked further:
"In other words, if the proposed appropriator is not able to complete and finally establish his appropriations by applying the water and using it for, the beneficial purposes for which it was proposed to be appropriated, either by himself or through theagency of some user, his appropriation fails." (Italics are ours.)
It is evident that the court saw no objection to the use of water by a stranger to the applicant of a permit.
At least three decisions in Oregon hold that a ditch company may initiate an appropriation for the future use of another. In Re Water Rights,
Water may, in this state, be impounded in a reservoir by anyone who is neither the owner or in possession of any land. That fact seems to have some bearing herein. The owner of such reservoir may sell, lease, transfer, and use such water in such manner and upon such lands as the owner may desire. Section 122-1602, Rev. St. 1931. In other words, one man may divert and impound water, under an application to, and permit by, the state engineer, for the ultimate use of it by another. The only material difference between such case and diversion by direct flow from a stream seems to be that in the former case the water is not required to be attached to land, while in the latter case it is. If, then, it is not contrary to the policy of this state that a man may apply for the diversion of water for the ultimate use of it by another as above mentioned, it would seem that that would be true also when water is diverted to be used upon land by direct flow from a stream, unless some special reason to the contrary *20
exists in the latter case. Counsel for plaintiff seem to think that they have found some special reason in the fact that no one should be able to acquire a monopoly of water, thinking, perhaps, that it is not so easy to do so when water is impounded in reservoirs, in view of the fact that the construction thereof ordinarily costs a great amount of money. It is true that it is the policy in this state, along with that of all the arid regions, that its waters should be put to the highest possible use. McHale v. Goshen Ditch Co.,
It is correct, as argued by counsel for plaintiff, that the authorities hold that in order for an appropriation to become effective, an intention must exist at the time when the initial steps are taken to apply the water to a beneficial use either immediately or in the near future. 67 C.J. 884. A man cannot apply for water, or divert it, for idle purposes. He must claim it, if he wants to separate it from the unappropriated body of water. *21
But the claim need not, we think, be personal in the sense that no one else can reap the benefit thereof. That was virtually held in Rutherford v. Lucerne Canal Company,
3. We have stated that Hill, after he made the applications in question and received his permits, conveyed his rights to Ryan. Counsel for plaintiff contend that, by reason of this fact, the owners of the Dickenson land — the NE/4NE/ — never acquired any water right. In the first place, it is contended that Hill by making such conveyance showed that he never at any time meant to act for and on behalf of Dickenson. We think, however, that the description of the NE/4NE/4 mentioned in each of the applications shows, prima facie at least, the intention to act on behalf of Dickenson, or at least the Dickenson land. Whether Hill could subsequently deprive the land of any initiated right therefor is another question. Counsel argue that under the decisions of this court, namely Frank v. Hicks,
4. It is contended that part of the water rights of the defendants has been abandoned. This is claimed upon the theory that only a comparatively small *24
amount of the acreage for which water was adjudicated has been irrigated. An abandonment of a water right, however, must be voluntary. It cannot be held to be abandoned, if non-user is caused by facts not under the appropriator's control. Ramsay v. Gottsche,
Affirmed.
RINER, Ch. J., and KIMBALL, J., concur.