Bower v. Big Horn Canal Ass'n.

307 P.2d 593, 77 Wyo. 80, 1957 Wyo. LEXIS 10
CourtWyoming Supreme Court
DecidedFebruary 26, 1957
Docket2747
StatusPublished
Cited by29 cases

This text of 307 P.2d 593 (Bower v. Big Horn Canal Ass'n.) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bower v. Big Horn Canal Ass'n., 307 P.2d 593, 77 Wyo. 80, 1957 Wyo. LEXIS 10 (Wyo. 1957).

Opinion

*84 OPINION

Mr. Justice Parker

delivered the opinion of the court.

Plaintiff, Ray F. Bower, is the owner of some 569 acres of land sloping downward from the Big Horn Canal to the Big Horn River, all irrigable and part of it so seepy as to interfere with farming operations. The seepage water, all originating from the defendant’s canal, is in part a normal residual from the irrigation process and in part a seepage directly from the canal. This latter has materially increased in the past three years, since the construction of the Boysen Dam lessened the silt in the canal water. Plaintiff sought to improve the boggy condition by constructing on his farm land drains which emptied water into a Joint Ditch situate between his property and that of a neighbor and leading to the Big Horn River.

He conceived the idea of utilizing this drainage wa *85 ter by reversing its flow, backing it up to a sump, pump it into a ditch (designated as “Bower Ditch” in Plaintiff’s Exhibit No. 1), which ran in a northerly direction below and parallel to the canal, to a second sump, and from there pumping it through a steel pipe flume up across the canal to certain arid lands, in part owned by him in fee and in part acquired by desert entry.

On October 6, 1952, he filed with the State Engineer an application to appropriate this water for the land on which he planned to use it. On October 18, 1952, the State Engineer granted the permit subject to the following limitations and conditions.

“This permit grants only the right to use the surplus water of the stream when all prior rights are satisfied.
“This permit is granted insofar as the State Engineer has authority to grant a permit for appropriation of water from this source.”

Later, plaintiff dug a ditch (designated as “Bower Drain” in Plaintiff’s Exhibit No. 1) below and parallel to the canal, running in a southerly direction and emptying into the second sump above mentioned.

On July 27, 1954, after this ditch had been construed, he filed an application for permit covering an unnamed ditch (identified in the testimony as the “Bower Drain” and hereinafter so designated), stating the use as “supplemental irrigation supply for lands irrigable under the Bower Ditch,” and listing the source of the proposed appropriation as the “Bower Drain.” Simultaneously, he filed an application for “[No. 1] Enlargement of the Bower Ditch,” listing the source of the proposed appropriation as the “Bower *86 Drain” (the same as in the unnamed ditch) , 1 Both of these later applications showed the same source, the same point of diversion, and identical irrigable acreage. Moreover, such acreage was exactly the same as that covered by the application of October 6, 1952, except that 2.1 acres had been added to each of the last two applications. Plaintiff’s purpose in the multiple applications is unclear to us despite some explanation given by him at the trial, but we are not able to agree with defendant’s unsupported claim that rejection of the latter applications rendered the first permit invalid. It is, however, evident that, confused and overlapping as his applications were, Bower intended to secure water from two different sources, (a) that which seeped into ditches paralleling the canal, and (b) that drained from his farm land. In any event, the stipulated evidence received on the motion for new trial shows that both of the later applications were pending at the time of the judgment in this case in the trial court and were rejected by the State Engineer on May 5, 1955, each carrying the identical notation (except for the word “not,” herein italicized, which is omitted in the “Bower Drain” rejection) :

“Application proposes to appropriate water that has not left the boundaries of an irrigation project for which an appropriation has not been granted in which instance same is not subject to appropriation under Wyoming laws.”

Defendant was willing that plaintiff use the water he drained from his irrigated premises on other lands for which he had an appropriation but was unwilling either that he be granted rights to water derived from the ditches which paralleled the canal or that he have *87 any rights to water drained from his irrigated lands if it be taken to arid land for which there was no appropriation. Accordingly, defendant by its superintendent “took out” the steel pipe flume which plaintiff had placed over defendant’s canal — whereupon plaintiff brought the present action to condemn a right of way for the flume.

Defendant resisted the action, its philosophy, as expressed in its answers and testimony, being substantially as now urged in this court:

(1) Plaintiff had no valid water right under Wyoming law.
(2) Without a valid water right no eminent domain or condemnation for irrigation purposes was legal or proper.
(3) The taking of waste, seep, or percolated waters from drain ditches which gather the same from lands served by an irrigation canal and system and pumping the same to lands outside of the irrigated area diminishes the quantity of water available for the lands to which it was adjudicated and is detrimental thereto and against the public good.

Defendant also filed a cross petition claiming actual damages because of the trespass on its land. Such damages to defendant’s property were stipulated by the parties to be $100.

The court, after hearing the evidence, found that plaintiff was entitled to a right of way (which would not interfere with defendant’s construction or operation of the canal) across defendant’s canal right of way for the purpose of constructing and maintaining *88 a pipeline to transport water for irrigation purposes to be used in reclaiming lands lying above defendant’s canal; that defendant was entitled to damages in the amount; of §100, as stipulated; that the proceedings for condemnation were regular; that there existed an immediate necessity for said right of way, that defendant’s canal right of way extended seventy-five feet on each side of the center line of the canal and that plaintiff’s construction thereon of his ditch was improper and should be restrained; that the damages accruing from the construction of the ditch and drain were speculative and no damage by reason thereof had occurred to the date of the judgment.

The court by its judgment accordingly awarded plaintiff the right of way across defendant’s canal, decreed §100 costs to the defendant for actual damages, and enjoined plaintiff from maintaining any part of his “supply ditch” on defendant’s right of way.

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Bluebook (online)
307 P.2d 593, 77 Wyo. 80, 1957 Wyo. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bower-v-big-horn-canal-assn-wyo-1957.