Whalon v. North Platte Canal & Colonization Co., 71 P. 995

71 P. 995 | Wyo. | 1903

Potter, Justice.

Richard Whalon is the owner of certain lands in Laramie County. Alleging that he had partially constructed an irrigating ditch on such lands, as well as a substantial and permanent headgate at the point where the ditch connects with the North Platte River, and that he had applied to the State Engineer for a permit to divert the waters of said river by means of his said ditch, called the “Whalon Ditch,” he brought this action to enjoin the threatened construction across a portion of his lands and over the line occupied by his ditch of a ditch known as the Whalen Falls Canal and Power Company Ditch by the defendant; which last mentioned ditch, if constructed as contemplated, will, it is alleged, absorb the ditch of plaintiff where the lines of the two ditches conflict. It is admitted by the pleadings that defendant, a corporation, incorporated under the laws of this State November 9, 1901, is engaged in the construction of a large ditch for the purpose of conveying water for the use and benefit of the various owners of lands lying under the ditch; and that application has been made by the State to the Government of the United States for the segregation of a large tract of land lying under the proposed ditch, the same to be opened for sale to settlers upon their securing from defendant through its ditch a water right for the irrigation of their respective tracts of land. And it seems to be a conceded fact in the case that a portion of the line of defendant’s ditch conflicts with the line of plaintiff’s ditch in crossing his land.

It is also admitted by the pleadings that plaintiff on November 19, 1901, filed an application in the office of the State Engineer for a permit to divert waters of the North Platte River by means of the Whalon Ditch for the irrigation of seventy acres of land, but there had been no approval of that application. It is alleged in the petition that the survey for plaintiff’s ditch had 'been commenced in September, 1900, and that work on the ditch was begun in October of the same year, which had been continued until the time of bringing suit, resulting in the completion of about half a mile of the ditch.

It is further admitted that on November 26, 1901, the defendant filed in the District Court a petition for the appointment of appraisers to view the lands of plaintiff and fix the amount of damages plaintiff may sustain by reason of the construction across his land of the ditch of defendant; by which proceeding defendant was seeking the condemnation of a strip of land one hundred and forty feet in width. Plaintiff, however, alleged in his petition that the petition in such condemnation proceedings did not show the existence of plaintiff’s ditch. On the trial, defendant having filed a supplemental' answer as a basis therefor, gave in evidence the orders of the court and report of appraisers in said proceedings whereby it appears that the appraisers were appointed November 29, 1901; that their report was made January 8, 1902, assessing plaintiff’s damages at three hundred and fifty dollars, and said sum was assessed as full compensation to plaintiff for the tract of land condemned, as well as adequate compensation for all damages suffered by him in consequence of the construction, operation and maintenance of defendant’s ditch. It further appears that on January io, 1902, the court entered a rule reciting the deposit with the clerk, by defendant, of said sum of $350, and adjudging that the same is full compensation, as aforesaid, to said plaintiff. A certified copy of the rule was filed for record on said last mentioned date in the office of the County Clerk and ex-officio Register of Deeds of Laramie County.

The defendant rests its right to construct its ditch and appropriate the waters of North Platte River thereby, upon the alleged fact that it has succeeded to the rights of certain persons who had caused a survey to be made of the first fourteen miles of its proposed ditch, said surveyed line embracing the line of the ditch where it crosses plaintiff’s land, and who had secured a permit from the State Engineer to divert the waters of said river by means of said ditch; and whose interests had been transferred to defendant.

It is admitted that prior to September, 1900, one John Hunton made and completed a survey of the first fourteen miles of defendant’s ditch, said line extending across plaintiff’s land. Defendant alleges that said survey was, on July 21, 19'ox, sold by said Hunton to one Ernest G. Miller, the engineer of defendant company, for the use and benefit of the company when organized. The fact of such sale- is denied by the plaintiff.

It is admitted by the pleadings that on September 28, 1901, a permit was granted by the State Engineer to Florence A. Miller and John Hunton to construct the Whalen Falls Canal and Power Company Ditch along the line of said survey made by said Hunton and an extension thereof made by said Ernest G. Miller, and to appropriate water from the North Platte River for the irrigation of lands lying under the ditch, and described in said permit.

Defendant alleges that it succeeded to all the rights of said Florence A. Miller by an assignment duly executed November 10, 1901; and to all the rights of said Hunton by an assignment duly executed by him to one John H. Jones October 21, 1901, and an assignment from said Jones to the defendant, dated November. 16, 1901; all of which assignments were filed in the office of the State Engineer on December 2, 1901. These allegations are denied by plaintiff. What may be referred to as the principal question in the case grows out of these alleged assignments. The evidence discloses that on the respective dates alleged certain writings were executed by the parties named, respectively, as set forth in defendant's answer, purporting to transfer and sell the right and title of the grantor to the appropriation of the Whalen Falls Canal and Power Company. But it is insisted on behalf of the plaintiff that, as such writings were not acknowledged, nor recorded in the Coffnty Clerk’s office, they are insufficient to confer any ’right or to convey any interest to defendant as against the plaintiff, although it is conceded that they are good and effectual as between the parties thereto.

The cause was tried to the court and judgment was rendered in favor of defendant, and plaintiff prosecutes error. On the trial the State Engineer was called as witness by the plaintiff. He testified that he had not approved the application of the plaintiff, for the reason that he found on examination that it appeared to conflict with a permit previously issued to other parties as to a portion of the line of ditch, and for the further reason that the matter was in litigation and he did not wish, therefore, to take any action. He stated that he had not disapproved the application. He testified that the custom of his office is to take up such applications in the course of business, but not necessarily in the order of their filing. He also testified that the application for the Whalen Falls Canal and Power Company Ditch was filed September 6, 1901, and approved September 26, 1901; and the application of the Whalon Ditch by plaintiff was filed November 19, 1901.

The action of' the District Court in excluding certain evidence offered by plaintiff to show the survey of his ditch and its partial construction in 1900 is assigned as error. It was evidently excluded on the ground that the plaintiff had not been given a permit to appropriate water by means of any such ditch. Section 917, Revised Statutes, provides that any person; association or corporation, intending to acquire the right to the beneficial use of the public water of the State, shall, before commencing the construction, enlargement or extension of any ditch, .canal or other distributing works, or performing any work in connection with such- construction, or proposed appropriation, make an application to the State Engineer for a permit to make such appropriation. The application is required to state, among other things, the time within which it is proposed to begin construction; the time required for the completion of construction, and the time required for the complete application of the water to the-proposed use. It is provided in Section 929 that the priority of appropriation shall date from the filing of the application in the engineer’s office. Section 919 authorizes the engineer in certain cases to reject applications, and refuse to issue a permit. He is authorized to reject when the proposed use conflicts with existing rights, or where it threatens to prove detrimental to the public interest. It is provided in Section 920 that if the application is approved, the applicant shall be authorized, on receipt thereof, to proceed with the construction of the necessary works, and to take all steps required to apply the water to a beneficial use, and to perfect the proposed appropriation. If refused, the -applicant is expressly prohibited from taking any steps towards the prosecution pf the proposed work, or the diversion and use of the public water, so long as such refusal shall continue in foxxe. Before either approving or rejecting an application the engineer is authorized to require additional information as will enable him to properly guard the public interests. (R. S., Sec. 921.) Upon the perfection of an appropriation, in accordance with the application, and a showing thereof, the Board of Control is required to send to the County Clerk for recording a certificate setting forth the priority number of the appropriation, the address of the appropriator and a description of the land to which the water is to be applied, if the appropriation be made for irrigation. (R. S., Secs. 928, 873.)

Before the excluded testimony was offered- it had been shown that plaintiff’s application had not been filed until November 19, 1901. The trial occurred in January, 1902, less than two months after the filing of such application. It is argued that in any event the testimony was admissible to show diligence on the part of plaintiff in constructing his ditch. And that, as plaintiff denied any right in the defendant as against him, he should have been permitted to establish his right to his alleged ditch, and his possession of the right of way.

Plaintiff’s ownership of the land was admitted, and as it was not claimed that any one other than plaintiff was in possession of the land, it was doubtless a conceded point that plaintiff was in possession, and hence in possession of the right of way. Defendant was proceeding in the condemnation proceedings to obtain a right-.of way and possession thereof. As to possession, the offered testimony would have been cumulative merely, and on that question it is not perceived how it could have strengthened the plaintiff’s Case. Even if admissible on that ground, its exclusion did not operate prejudicially. If plaintiff had a right to construct his ditch for irrigating purposes, and in pursuance of a design to perfect an appropriation of water, we fail to observe, how he was injured by the exclusion of the testimony. Want of diligence could hardly have been urged with any reason, since there had been no approval of the application, and less than two winter months had elapsed since its filing. Indeed, plaintiff was not charged with any lack of diligence. That was not an issue in the case.

For the purpose of showing priority of water right, we think that the offered testimony was clearly inadmissible. Had an approval of plaintiff’s application been shown, his priority would have dated from the'filing of the application, and not from the commencement of the survey and construction that is alleged to have occurred a year or more anterior to such application. Evidence was admitted showing the line of plaintiff’s ditch, and the point and extent of the conflict with it of the ditch of defendant.

It must be remembered that the theory of the plaintiff is that the interference of the defendant sought to be restrained is with an irrigating ditch, connected with a water right. The contention here is not that plaintiff has merely made certain excavations upon his land that defendant threatens to use and appropriate. But it is insisted that he has a ditch, using that expression according to the common understanding, as meaning a canal or conduit for the conveyance of water; and, as we understand the case and argument of counsel, it is maintained on behalf of plaintiff that some water right of his is to be injured, interfered with, or destroyed by the construction of defendant’s ditch.

Under our present statutory system, the inceptive point or date of a water right is not the commencement of construction, or even the commencement of survey. It is the filing of the application for a permit. Survey must, of course, be made, and it generally, no doubt, antedates the application. There must be construction, and if there has been none an abandonment may be the result. Formerly any person could, without permission of any one, inaugurate and complete an appropriation of water. And many appropriations now existing, made before the adoption of the present statutes, have been established, and others will be established, in respect to priorities, upon evidence as to time of commencing work or making surveys.

Since the enactment into our laws of the system now in force, a water right is not inaugurated by constructing a ditch. The law provides that before beginning construction an application for permit shall be filed; and upon its approval the applicant is authorized to proceed with construction. Hence, it is not perceived how the fact of the survey and partial construction of a ditch by plaintiff in 1900 is relevant upon the question of the priority of water rights -betwen him and the defendant, his application not having been filed until November 19, 1901. The above answers the suggestion that the statutes allowing to a ditch company the privilege of a right of way over the lines named in its certificate provide that such lines shall not interfere with any other ditch whose rights are prior to those acquired by such company. A mere excavation called a ditch on plaintiff’s land cannot be construed as coming within the purpose and intention of the statute. A ditch with rights is referred to; and a ditch that is built without authority, the building of which confers no right upon the owner to divert water, is not such a ditch as the statute mentions. If as a mere excavation it possesses value, it will be assumed that it was considered by the appraisers in the condemnation suit.

It must be confessed that if it was necessary to decide this case solely upon the case made by the plaintiff, we would hesitate to hold that he has established in himself such a right as to authorize a court of equity to perpetually enjoin the construction of defendant’s ditch as proposed by it. But it is very clear that whatever rights the plaintiff has, so far as the matter at issue in this case is concerned, and assuming that the steps so far taken by him may ripen into an absolute water right, such rights can be held to date only from November 19, 1901. Hence, if it be found that defendant has a prior right, the fact that there is a conflict as to a portion of the lines of the two ditches will not deprive defendant of the right to construct its ditch over that line. It will possess a prior right to the line, and the fact that the point of conflict is located on the land owned by plaintiff can make no difference, in .view of the condemnation proceedings that, under the statute, vested in the defendant “the exclusive right, title and possession” of the tract of land embraced in the right of way. (R. S., Sec. 2084.)

It is an admitted fact in the case that Florence A. Miller and John Hunton obtained on September 28, 1901, a permit authorizing them to construct the ditch now proposed to be constructed by the defendant company, and that transfers of the right thus secured have been executed and delivered sufficient as between them and the defendant. But the sufficiency of such transfers to confer a right upon defendant superior to the supposed or .alleged right of plaintiff, is challenged.

The application filed by Florence A. Miller and John Hunton on the 6th of September designated the ditch to be constructed as the “Whalen Falls Canal and Power Company” Ditch, and was recorded in the engineer’s office in Book 14 of Applications, on page 147, as shown by endorsements on the back of the application. The source of the proposed appropriation was given as the North Platte River. Upon the application also is noted the various transfers, showing the fact of their having been recorded on the 2d day of December, 1901. The approval and granting of the application is also noted thereon over the signature of the engineer. On the 10th day of November, 1901, Florence A. Miller executed an instrument in writing, her signature being attested by one subscribing witness, purporting “for a valuable consideration” to “transfer, sell, release” to the North Platte Canal and Colonization Company “all my right and title to the appropriation of the Whalen Falls Canal and Power Company, the same being of record in Book 14, page 147, Records of the Applications, in the State Engineer’s office in Cheyenne, Wyoming.”

October 21, 1901, John Hunton executed in the presence of two subscribing witnesses a -written instrument, containing the following words of transfer: “do sell, assign, transfer and set ove.r unto John PI. Jones of the City of Chicago, of County of Cook and State of Illinois, all my right, title and interest in and to the Whalen Falls Canal and Power Company water appropriation, granted by the State of. Wyoming, on the 28th day of September, 1901, and recorded in the office of the State Engineer of the State of Wyoming, on the 6th day of September, 1901, in Book 14 of Applications, on page 147.” , The consideration was stated to be $185 and a water right from the ditch for 160 acres of land.

November 15, 1901, said John H. Jones, in the presence of one subscribing witness, executed and delivered to the defendant a similar written instrument, stating: “For and in consideration of the sum of one dollar, and other good and valuable considerations, I do hereby sell, assign, transfer and set over unto the North Platte Canal and Colonization Company all my right,” etc., describing the subject of the transfer substantially the same, as in the instrument signed by Hunton, and referring to it as the same interest “conveyed” to the grantor by said Hunton.

These instruments are referred to throughout the record as “assignments,” although they are not so designated upon their face, nor by any endorsement thereon. We think that designation is a technical misnomer, if it is intended thereby to indicate that they constitute something less than a deed conveying realty. No prescribed form of words is essential to convey real estate; but the instrument must contain sufficient words to show an intention to convey. (1 Devlin on Deeds, Sec. 211; 9 Ency L. (2d Ed.), 137, 138; 3 Wash. Real Prop., 329.) “Any words in a deed indicating an intention to transfer the estate, interest or claim of the grantor will be sufficient as a conveyance, whether they be such as were generally used in a deed of feoffment, or of bargain and sale, or of release, irrespective of the fact of possession of grantor or grantee, or of the statute of uses.” (Field v. Columbet, 4 Sawy., 523.)

In one of the instruments the operative words used are, “transfer, sell, release.” In the others, “transfer, sell, assign and set over.” These words are sufficient in the case of each instrument to constitute a conveyance. They show an intention to sell and transfer. The words “transfer” and “sell” are employed iii each instrument. We think it clear that the instruments are sufficient and operative to convey the interest and title of the grantors to the water right described. It is, however, contended that they are insufficient to operate as against the plaintiff, for the reason that thejr were not acknowledged and recorded in the County Clerk’s office, and were not recorded in the office of the engineer until after plaintiff had filed his application. Notwithstanding the affirmative provisions of the statute (Secs. 2731, 2741) that conveyance of land, or of any estate or interest therein, may be made by deed, and acknowledged or proved and recorded as directed in the title wherein the provision is found; it is also provided that “every conveyance of real estate.which shall not be recorded as provided by law, shall be void, as against any subsequent purchaser or purchasers in good faith and for a valuable consideration of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.” (Sec. 2762.) And in the section prescribing the method of conveying homesteads it is expressly provided that unless acknowledged by^ the wife, if there be any, such deed shall be absolutely void. (Sec. 2770.) But a deed not acknowledged or recorded of property not a homestead is not declared to be void except in Section 2762, and it is there declared to be void only as against certain persons, viz., purchasers in good faith of the same real estate, or any portion thereof, for a valuable consideration, whose conveyance shall be first duly recorded.

With hardly an exception under similar statutes, it is held that neither an acknowledgment of a deed, or its recording, are essential to pass the legal title as between the parties to the instrument. (See Myrick v. McMillan, 13 Wis., 188; Leinenkugel v. Kehl, 73 Wis., 238; Dole v. Thurlow, 12 Metc. (Mass.), 157.) In Sicard v. Davis, 6 Pet., 124, Chief Justice Marshall said: “The acknowledgment, or the proof which may authorize the admission of the de,ed to record, and the recording thereof, are provisions which the law makes for the security of creditors and purchasers. They are essential to the validity of the deed, as to persons of that description, not as to the grantor. His estate passes out of him and vests in the grantee, so far as respects himself, as entirety, if the deed be in writing, sealed and delivered, as if it be also acknowledged or attested and proved by three subscribing witnesses, and recorded in the proper court.” The great weight of authority holds that acknowledgment has reference to the proof of execution, and is required to entitle the instrument to record ; but it is not an essential part of the instrument so that its absence will prevent the passing of title, unless the statute has expressly so declared. (1 Ency. L. (2d Ed.), 488, 489, and cases cited.)

Under similar statutes it has been held in Montana in a case where the question is learnedly discussed that a junior appropriator is not a purchaser within the meaning of the statute, and that as to him a deed of a prior water right, though not acknowledged or recorded, is valid. (Middle Creek Ditch Co. v. Henry, 39 Pac., 1054; 15 Mont., 558.) The court in that case refers at some length to the early case of Barclay v. Tieleke, 2 Mont., 59, which had been supposed to declare an unacknowledged deed of a water right to be void; but it is shown that such declaration could not have been intended, and that if it did intend to so declare the case could not be approved in that respect. And the expressions contained' in the opinion in the case of Barclay v. Tieleke to the effect that an attempt to convey a water right by an imperfect deed will operate as an abandonment by the grantor, and that the grantee will take the water under a new appropriation dating from his possession, are regarded by the court in Middle Creek Ditch Co. v. Henry as applicable only to cases where the deed is'void either as between the parties or as to third persons. And as the court held that the unacknowledged deed was not void as to the junior appropriators, the aforesaid doctrine of Barclay v. Tieleke was deemed to be inapplicable. It is, therefore, clear that the case of Barclay v. Tieleke cannot now be considered as deciding that a merely imperfect conveyance of a water right operates as an abandonment ; and if it was intended to so decide the doctrine has been modified in the later case above cited.

The statutes in the matter of recording conveyances have undoubted reference to the recording of instruments in the office of the County Clerk and ex-officio Register of Deeds. The person protected by the failure to record a prior conveyance is one whose conveyance shall be first duly recorded. It is true that the application of plaintiff was filed with the engineer before the transfers to defendant were filed in that office, but his application was not recorded in the County Clerk’s office, nor is there any provision requiring or authorizing its recording in that office. It is doubtful at best if the application can be regarded as a conveyance at all.

Was plaintiff a purchaser of the same real estate, or any portion thereof conveyed to the defendant? He did not buy a water right, nor receive any conveyance thereof, from the grantors of defendant. He applied for a permit to divert the public waters. If the grantors of defendant had anterior to plaintiff’s application secured a right to perfect an appropriation, and their transfers of that right to defendant are not void on account of their imperfect execution, but are effectual as between the parties, and their right is not to be considered as abandoned by the transfers, it is difficult to understand how it can reasonably be said that plaintiff, even should he secure a permit under his application, has purchased or obtained any portion of the same right transferred to defendant. That right or appropriation must have reverted to the State before the plaintiff or any other person can secure it, or any interest in it, unless he secures it from or through the parties themselves. Had the plaintiff taken ■ a conveyance from the grantor of defendant and had the same recorded before the recording of the conveyances to defendant, a case for invoking the statute in his favor might have been presented. As it is, we do not perceive that he is in a position that permits him to question the conveyances to defendant on _ account of the failure to have their execution acknowledged, even though he should be regarded as a junior appropriator. The water to be appropriated by defendant under the permit to their grantors has been duly conveyed to the defendant. The title to the water right has duly passed to it from the original applicants or appropriators. Plaintiff can acquire an interest only in the use of unappropriated waters. The water remains public, but the right to its use appropriated under the permit to defendant’s grantors, until the same may be abandoned or forfeited, is no longer in the State to grant. We fail to perceive upon what theory plaintiff’s application, even should it be approved, has any such relation to the subject of the transfers to defendant as to authorize him to challenge their sufficiency as to third persons. So far as he is concerned, as well as the parties thereto, they are valid and.effectual.

For the reasons set forth in this opinion, we see no reason for disturbing the judgment of the court. That judgment will be affirmed. Affirmed.

Corn, C. J., and Knight, J., concur.