Johnston v. Little Horse Creek Irrigating Co.

70 L.R.A. 341, 79 P. 22, 13 Wyo. 208, 1904 Wyo. LEXIS 39

• Court: Wyoming Supreme Court
• Decided: December 31, 1904
• Status: Published

Opinion

PottER, Justice.

This is a proceeding in error complaining of a final decree entered by the District Court, in and for Laramie County, perpetually enjoining the defendants below, plaintiffs in error here, from any interference with the plaintiff below, defendant in error here, in the use and enjo)unent of an undivided one-half interest in and to ten (10) cubic feet of water per second of time of the waters flowing in Little Horse Creek; the said ten cubic feet of water being the amount awarded to the Spring Vale Ditch Company by decree of the State Board of Control, rendered May 7, 189T, as of priority number eight (8) on said stream, and said undivided one-half interest having been combed October 30, 1894, by deed by said Spring Vale Ditch Company to said defendant in error; and the said final decree here complained of also enjoined the plaintiff in error from interfering with the use by defendant in error of the channel of said creek for the purpose of conveying- the water aforesaid down to the headgate of the ditch of defendant in error, and its diverting the same into its ditch.

The suit was instituted by the defendant in error against James R. Johnston, Lizzie D. Johnston, George D. Johnston and Plarry Homer Johnston, and George W. Snow, as water commissioner. During the pendency of the cause in the court below James R. Johnston died, and, in his stead, Lizzie D. Johnston and George D. Johnston, as executors, and Plarry Homer Johnston, as heir at law, were substituted as defendants. Notwithstanding such substitution, the petition in error herein was prosecuted in the names of the original parties, the name of James R. Johnston having been inadvertently used as one of the plaintiffs in error. This error is called to our attention by counsel for defendant in error in their brief, and it is urged that, as the interest of the defendants below was joint, the proceeding in error is improperly prosecuted. Counsel for plaintiffs in error, however, have filed a motion to strike the name of the deceased party from the title; and exhibit a decree of the District Court, in probate, dated July 21, 1898, some months prior to the decree in the case at bar, whereby it appears that Rizzie D. Johnston was declared and decreed to be the sole legatee under the last will and testament of the deceased ; that all the property of the estate be vested in her; that she was then in possession thereof; that the estate had been full}' administered, and the executors were thereby discharged. Hence, it appears that said Rizzie D. Johnston, who was one of the defendants below in her own right, as well as executrix, and is a plaintiff in error herein, has succeeded to all the rights of James R. Johnston, deceased, and in fact had so succeeded prior to the entering of the decree complained of. It seems that no injustice can follow the granting of the motion, since all the parties interested are herein named as parties; and, therefore, the motion will be granted, and the name of James R. Johnston will be stricken from the title of the case as one of the plaintiffs in error.

Primarily the respective rights of the contesting parties to the water in controversy is based upon a decree of the State Board of Control adjudicating the priorities on the stream in question. By that decree the Spring Vale Ditch Company was awarded priority No. 8 for ten cubic feet of water per second of time, for the irrigation of seven hundred acres of land; the plaintiffs in error were awarded priority No. 9, for 7.71 cubic feet, to irrigate five hundred and forty acres of land; and the defendant in error priority No. 10, for 17.14 cubic feet, for the irrigation of twelve hundred acres of land. The ditches of the owners of the three priorities above named relatively connect with the stream about as follows: The headgate of the Johnston ditch is located near the head of the stream; the headgate of the ditch of the Spring Vale Ditch Company, two and one-half miles below the headgate of the Johnston ditch; and the ditch of defendant in error has its headgate two and one-half miles below the headgáte of the Spring Vale ditch.

The appropriations under which the parties named obtained their respective priorities were made prior to statehood and before the adoption of our constitution and the creation of the State Board of Control. Proceedings were pending at the time of the adoption of the constitution in one of the District Courts of the state, for the determination of the various priorities upon the stream in question. And, following the enactment of the law by the First State Legislature with reference to the adjudication of water rights by the Board of Control, the said proceedings, by virtue of one of the provisions of that act, were transferred to the'Board of Control, by whom the final decree of adjudication was rendered. On October 30, 1894, the Spring Vale Ditch Company made and executed its deed to the Little Horse Creek Irrigating Company, the defendant in error here, whereby it conveyed to said defendant in error an undivided one-half of the interests of the grantor in and to the waters of Little Horse Creek that had been adjudged to. said grantor by the Board of Control; and it was recited in said deed that “The said waters hereby conveyed and the use thereof being intended to be wholly severed from the lands of the part}' of the first part or any other person and from use thereon; it being the intention of the said party of the first part to convey to the said party of the second part an undivided one-half in and to all the rights which it may have acquired to the use of the waters of said Little Horse Creek, as involved within the adjudication aforesaid; and to convey the same to the said party of the second part as fully and entirely as it may lawfully do, and to convey to the said part}' of the second part the unrestricted use thereof by the party of the second part in the irrigation of lands at such point or points as he may elect to use the same.”

It was expressly agreed by and between the parties to said instrument, by provision therein inserted, that the said parties, beginning on the 1st day of March in each year, should use the waters that had been adjudged to the grantor as follows: The part)' of the first part, viz., the Spring-Vale Ditch Company, shall be permitted to use all the waters for the term of one week. At the expiration of that time the second part}', the Little Horse Creek Irrigating-Company, shall be authorized to use all the waters so adjudged for the period of one week; and so alternately the said waters shall be used by the parties respectively, each using all the waters one week at a time, and no longer, during all of the irrigating season of each and every year, and so long as said parties or either of them shall desire to use the said water' in any year. The evidence discloses that after the execution and delivery of this conveyance, the waters that had been appropriated by the Spring Vale Ditch Company were used in the manner set forth in said deed; the defendant in error diverting the waters for its use into its ditch located about two and one-half miles below the ditch of the Spring Vale Ditch Company, and the latter company diverting the water when it used it into its own ditch, by means of which the original appropriation had been effected. It appears that the plaintiffs in error, considering the sale of an interest in said water right to be invalid and to confer no right or title upon the grantee, and that it amounted to an abandonment on the part of the Spring Vale Ditch Company of one-half of its original appropriation, sought and claimed the right to use the same as the next succeeding appropriator. And it is contended on behalf of plaintiffs in error that a sale of a water right separate from the land for the irrigation of which the water was appropriated, is not permitted under the laws of this state. This raises the important question in the case.

In Frank v. Hicks, 4 Wyo., 502, it was held that a water right acquired for the irrigation of lands is an appurtenant to the land and passes with a conveyance of the realty, without being specifically mentioned, but it was said by Mr. Justice Conaway, who delivered the opinion in that case: “It is true that bj all the authorities the water right is separable from the land to which it is appurtenant and may be sold separate from the land, and the place of diversion and the place of use may lie changed. But this is only when these acts are not injurious to the rights of others.” And in the case of McPhail v. Forney, 4 Wyo., 556, the same learned justice said: “As held in the case of Frank v. Hicks, decided at the present term, a right to the use of water for purposes of irrigation, together with the ditch or other conduit for the water, may be conveyed separate from the land upon which the water is used. It seems that this is what has been done with the water right involved in this case.”

We are aware that, notwithstanding the expressions and decisions in the cases above mentioned, which decisions were rendered in 1894, prior to the execution of the deed in question, there- has existed in the minds of the administrative officers of the state, charged with the execution of the laws governing the appropriation and distribution of water, an opinion that, by reason of some provisions of our statutes unlike the statutory provisions prevailing in most of the other arid states, water appropriated for the irrigation of land becomes not only appurtenant thereto, but inseparably connected therewith, and, therefore, incapable of transfer or conveyance separate from the land; and the opinion we understand has prevailed among such officers that in the cases aforesaid the effect of our peculiar. statutory provisions was not considered.

In view of the fact that such- decisions were rendered before the convej^ance in question, and that the parties presumably relied thereon in granting and receiving the conveyance, the law ought'to be found very clear to justify the court at this time in overruling them, and holding the transfer void.

It is not denied, nor can it be, that it has 'uniformly been held in this country, wherever the doctrine of prior appropriation is recognized, that a water right obtained bj' and for the irrigation of land may be sold separate therefrom. (Gould on Waters, Sec. 234; Kinney on Irr., Secs. 264, 265, and cases cited; Long on Irr., Sec. 79; 3 Farnham on Water & Water Rights, Secs. 643 and 679.) Mr. Farnham says in Section 679 of his work above cited: “The right acquired by an appropriation of water being a property right, it is subject to transfer, the same as any other species of property; and this transfer may be separate from the land upon which it was intended to be used. And this sale may include all of the right to which the vendor is entitled, or it may be limited to a portion of it.” And in. Section 643, the same author says: “But there is no reason why it should remain attached to the land in connection with which it was first used, and, therefore, the rule is that it may he sold separate from the land.”

As an appropriator of water obtains by his appropriation that only of which he makes a beneficial use, it necessarily follows that he cannot sell surplus water which he does not need while retaining his original appropriation; and it has been held that as against a subsequent appropriator, a senior appropriator cannot give the water he does not use to another for a certain period who otherwise would have no right to use it. (Manning v. Fife (Utah), 54 Pac., 113.) So far as we are informed, however, every case in which that or a similar principle has been decided admits that the water right may be sold and conveyed separate. from the land, provided that other appropriators are not injuriously affected by such sale.

An individual appropriator of water for irrigation secures no surplus water, hence he has no surplus which he can either sell or give to another as against subsequent appropriations. His appropriation, and therefore his water right dependent thereon, is at all times limited, within the maximum of his appropriation, to the quantity capable of beneficial itse and actually so used. If during any period he does not require the use of the water it falls during that period to the subsequent appropriator who does need the same and can beneficially use it. What the appropriator may sell is his water right; that is all he has to sell. That is all that would pass by deed of the land as an appurtenance. The water in the stream is not his property; biit his right to use that water based upon his prior appropriation for beneficial purposes is a property right, and as such is. capable of transfer. The only limitation upon the right of sale of a water right separate from the land to which it was first applied, and to which it has become appurtenant, laid down by any of the authorities, is, that it shall not injuriously affect the rights of other appropriators. In other words, the burden upon the use must not be enlarged beyond that which rested upon it under the original appropriation and while in the hands of the original appropriator as he was entitled to and did use it. This principle is the necessary result of the fact that the only propert}"' in the water owned by the appropriator is a rig-ht to use it as measured by his appropriation.

But it is insisted that, under the statutes of this state concerning the acquisition of water rights, an entirely different rule must prevail. It is not contended that there is any statute expressly prohibiting a sale of a water right acquired for the irrigation of land separate therefrom, but the claim is that because of certain provisions in our statutes such a prohibition is necessarily implied. That result is supposed to follow from the provision in Section 873, Revised Statutes, which prescribes the form and contents of the certificate to be given to the appropriator after determining the priorities by the Board of Control, where it is provided that if such an appropriation be for irrigation, the certificate shall contain a description of the legal subdivisions of land to which said water is to be applied; and the provision in Section 917, Revised Statutes, that before any person intending to acquire a water right shall commence the construction, enlargement or extension of anjr ditch or other distributing works, he shall apply to the State Engineer for a permit to make such appropriation, in which application the nature of the proposed use must be stated among other things, and a map to be filed with such application, as required by Section 924, is required to show the location and area of all land proposed to be reclaimed, and upon the completion of such an appropriation in accordance with the application, a certificate is required to be sent to the County Clerk of the same character as that described in Section 873; and the provision in Section 872 that no allotment shall exceed more than one cubic foot of water for each seventy acres of land for which the appropriation was made.

It may be conceded that the various provisions in the statute requiring a showing as to the lands to be irrigated and a description thereof in the final certificate of appropriation, tend to emphasize the principle that a water rig-ht acquired for the irrigation of lands becomes appurtenant to the lands irrigated, but we are unable to give to such provisions the interpretation contended for by the learned counsel for plaintiffs in error. They do not, in our judgment, have the effect in any true sense of destroying the reason upon which the right of sale separate from the land is upheld. They do not, in our judgment, have the effect to declare that the right to use water acquired by appropriation is not in itself a property right, nor can any of the provisions to be found in our statute be legitimately construed as either expressly or impliedly depriving the right of its qualities as property, which it otherwise might have, and which, in every other state, is conceded to it.

In the able argument of counsel for plaintiffs in error, reference is made to the fact that in the State of Idaho constitutional and statutory provisions have been' enacted for the purpose of rendering the water right acquired for the irrigation of lands forever incapable of separation therefrom by transfer; and we understand that in the statutes of that state there is a provision that the right of the water user shall not be considered as being a property right in itself, but that it shall become appurtenant to the land. It must be conceded that the Idaho statutes go much further than the statutes in this state in its declaration concerning' the nature of a water right acquired for irrigation.

The Idaho statutes referred to have, however, been considered by the Supreme Court of that state, and the majority of that court held that users of water from a ditch or canal 'acquired such a property right as they may transfer to other lands under such ditch or canal; and that they may also sell and transfer the right to use such waters, and the purchasers may transfer it to other lands under the ditch or canal, so long as the change of place does not interfere with the rights of others. (Hard v. Boise City Irr. & Hand Co., 76 Pac., 331; see also Boise City Irr. & Land Co. v. Stewart, 77 Pac., 25.) In the case first above cited, Mr. Justice Ailshie, in a concurring opinion, held that the provision that a water right should not be a property right in itself ought not to deprive such right of the character and quality which constitute it property; and Mr. Justice Stockslager, in .delivering the opinion of the court, said : “That a party may change the point of diversion when he takes water from a natural stream is a settled question, provided he can do so without injury to any other appropriator of the waters of the same stream. We do not think it material whether he takes it to other land than that for which it was first appropriated; the only question being, can he so change the place of diversion without injury to some other appropriator? That a party has such property interest in water appropriated and used for useful and beneficial purposes that he can sell, we think, is beyond controversy; but the buyer cannot take the water to other lands than that for which it was appropriated, to the detriment of any other appropriator, is equally well settled. If, however, he can use it upon other lands more beneficially, where could there be a well founded objection to such change?” There was a dissenting opinion in the case, but even that opinion recognizes the right of an original appropriator and owner of a water right to sell and transfer the right to be used upon other land.

In the brief of counsel for plaintiffs in error much is said with reference to the policy of the rule permitting a sale of a water right separate from the land, and counsel has submitted with such brief the views of a former State Engineer of this state, who worthily'- occupies an eminent position as an irrigation engineer and whose ability is unquestioned, and for whose opinions the members of this court entertain a high regard. We are, however, of the opinion that many of the objections to the doctrine that has been so firmly settled by the courts are fanciful, and that legislation in conformity therewith is capable of enactment which would remove many of the objections from the standpoint of an intelligent execution of the laws governing the distribution of the public waters.

In view of the persistency with which such objections are entertained, and the earnestness with which they are continually urged by those engaged in administering our laws on the subject of water appropriations, and the able presentation thereof by counsel, some reference to them seems advisable.

It is asserted that the doctrine of sale separate from land is the doctrine of the courts and not of irrigators. It is, of course, true that the public announcement of the doctrine is to be found in the decisions of courts, but had the owners of water rig'hts nqt conceived that they had a property in their right to use water which they could convey for use on other lands, there doubtless would have been no conveyances to be considered by the courts. We cannot agree that the doctrine has resulted from ignorance concerning irrigation matters. Nor can we agree with the notion that men not necessarily or usually trained in the law are more competent than the courts to determine the legal principles controlling the use of water by prior appropriation, notwithstanding that the judges may not as a rule be practical irrigators. The fact that judges have not been engaged in banking or commercial pursuits, or in managing railroads or other corporate interests, has not been put forward as an argument to combat the justness of the legal rules and doctrines that govern financial and commercial transactions, or that prescribe the duties and powers of railroad companies or other corporations. Legal doctrines in this country have generally come from the courts and must in the nature of the constitution of our government continue so to do except where, within its province, the Legislature declares what the law shall be. Indeed, the courts first announced the doctrine of prior appropriation. The law of this state conferring certain powers upon the Board of Control makes the courts the ultimate judges in case of controversy on appeal; and the courts surely are as much empowered, within the extent of their jurisdiction, to announce doctrines, as are administrative boards. We have no doubt, however, of the wisdom of the policy which places the initial determination of priorities in the hands of such a board.

It may be accepted as true that the rule permitting the sale of a water right separate from the land has been the source of litigation. But that affords no sufficient reason for destroying property rights. We cannot agree that, in order to discourage litigation or render it impossible, the courts should divest the citizen of his property.

Counsel seem to treat the sale in controvers) and the question generally of the right of sale • separate from the land as a sale of the water itself. But the conveyance does not sell water. The appropriation was made by the use of water for the irrigation of land; and thereby a water right was obtained the nature of which is well understood and settled. The deed conveys an interest in that water right. The interest conveyed passed out of the hands of the original appropriator into the-hands of its grantee. It became severed from the land to which it was originally attached, it is true, but it immediately became attached to other land. In the hands of the grantee the right became appurtenant to the land upon which the grantee intended and did apply it. Should the grantee not apply the right to a beneficial use, he could not, of course, retain it. The grantee can by non-user abandon the right in the same manner as the original appropriator. This is not a case where an appropriator for irrigation purposes seeks to hold the water for purpose of sale. The matter stands in the same situation as though the grantor and grantee had originally made the appropriation and secured the water right in the proportions stated in the deed. The appropriator secured a property right. A portion of that right it sold to be beneficially applied to other lands. It sold not water, but the right to use water; in other words, a water right.

We cannot agree that it requires'a strained and distorted interpretation of our statutes to uphold the doctrine permitting the sale of a water right separate from the land. On the contrary, it would require a strained construction of the statutes to deny such a right. There is no reasonable indication in the statutes, in our opinion, that the requirements for describing the land to be irrigated in applications for permits, or in certificates of appropriation, was adopted on the theor) that the water right becomes inseparably attached to the particular land, so as to forever be incapable of transfer to other lands. A more reasonable view of the purpose of the requirement is to show that an actual beneficial use has been or is intended to be made of the water claimed to have been appropriated or intended to be appropriated; and to enable those charged with the duty of adjudicating priorities to determine upon some definite basis the amount and quality of the appropriation; as well as to preserve a convenient record of water rights as appurtenant to certain tracts -of land. But the fact that the legislative development of this growing subject has failed to provide for a record of transfers of the right to other lands, which we think might be done, is not to be held ground for holding that the right of transfer does not exist.

To adopt the view contended for against the validity of the conveyance in question would, in our judgment, require us to deny the element of property in the water right itself. Nothing in the decisions on the subject nor in the statute authorizes that. The water right when sold does not become, as suggesfed, a mere “floating right.” It becomes appurtenant to other land, if it is intended by the grantee for irrigation, or else is devoted to other equally beneficial uses. Without some beneficial use after sale, it would doubtless on a proper showing be held abandoned, as in the case of an original appropriator who should intentionally cease to use it.

Moreover, judging from the board’s decree in this case, it would seem that the administrative officers have not adhered very strongly to the proposition that the statutes require a description of the land for the purpose of inseparably attaching the water right to the particular tract irrigated. The decree awarded to the Spring Vale Ditch Company a designated water right for the irrigation of seven hundred acres of land. But the particular tracts irrigated were not described, except that the said seven hundred acres are described g-enerally as being located within certain larger tracts in the aggregate amounting to about 1,840 acres. This might perhaps permit the. appropriator to apply the water during one season to one part of the land described, and to another part in another season; and this may be the custom in farming under irrigation. To carry the theory contended for to its legitimate and logical conclusion would seem to require the particular area through the irrigation of which the appropriation was made to be described minutely, and thereby show that the water right did not appertain to any other part of the land owned by the appropriator. But the statute evidently does not require such minutia of description, since it provides only for a description of the legal subdivisions to which the water is to be applied.

In view of the fact that the doctrine maintained in other states 'of the arid region must have been well known to those interested in our legislation, it is significant, it seems to us, that no express legislative declaration on the question has been incorporated in our statutes. And is it not also significant that, notwithstanding the expressions of this court in 1894, in the cases cited in an earlier part 'of this opinion, the statutes have continued silent in reference to the matter? It is, moreover, significant that the constitution requires the Legislature to provide by law for the exercise by incorporated cities, towns and villages of the right of eminent domain for the purpose of acquiring from prior appropriators, upon the payment of just compensation, such water as may be necessary for the well being thereof and for domestic uses. (Const., Art. 13, Sec. 5.)

We are deeply sensible of the responsibility attending a decision of this important question. We have brought to its consideration for some time careful thought and study, and the result is that we can ascertain no reasonable ground for departing from the well settled principle so firmly and uniformly upheld by all the authorities.

We can perceive nothing; in the fundamental principles underlying the doctrine of prior appropriation in the use of water that interferes with the right of sale of the water right, but, on the contrary, those principles seem to be in harmony with such right. Should the theory be adopted that water appropriated for the irrigation of a certain tract of land must be forever connected with that particular tract and cannot be separated therefrom in any manner by sale, by any other equally beneficial use, or otherwise, much injustice might be caused by reason of the failure of the particular tract to further respond to the skill of the husbandman ; it might become valueless for many reasons unnecessary to mention, and the appropriator, who may have expended much money and time in completing the appropriation, would be compelled to forfeit, it instead of supplying it to other lands. The state, certainly, as trustee of the water and interested in its conservation and economical distribution, can hardly be concerned in having a particular tract of land irrigated in preference to any other. Moreover, forfeitures have never been favored in the law. But is not a conclusive answer to the proposition for the new theory that there is no principle of law upon which it can be logically or reasonably based?

The evidence in this case shows' that, after the conveyance of the water right in question, the grantor, the Spring Vale Ditch Company, irrigated not more than one-half as much land as it had previously irrigated, and the grantee applied the water which it obtained, under the conveyance, to the irrigation of one hundred and eighty acres of land. This is not an increase over the quantity of land previously irrigated, and there is nothing in the testimony^ showing or tending to show that the use of the water since the transfer has resulted in an injury -to the plaintiffs in error. Indeed, it is not claimed that they have been injured except upon the theory that they were entitled as t'he next succeeding appropriator to any water which the Spring Vale Ditch Company may have abandoned.

It must be understood that this case does not present any facts showing a sale of surplus water. The evidence discloses, without contradiction, that the entire amount of the maximum allowed to the Spring Vale Company was seldom, if ever, used, for the reason that the stream did not supply^ sufficient water in ordinary seasons at least to allow such use. There is no evidence of waste. There is no showing that either of the parties to the deed used more water than they'- actually required.

It is suggested that the decree commands the plaintiffs in error at all times to refrain from any interference with the maximum quantity allowed by the board to the Spring Vale Ditch Company, in disregard of the custom and necessities of persons engaged in cultivating land by irrigation. It is said, in substance, that an appropriator does not require, and never actually uses a uniform, continuous flow of a certain volume of water; that the allowance of a certain quantity is intended only as a maximum limit as to the use at any one time; but that water is generally used only about three months, and the maximum not over thirty days. Conceding all this, it is not apparent that the decree is to be interpreted as permitting the defendant in error to waste any of the water. If it did, it might require modification. The injunction is against interfering with the use and enjoyment by the defendant in error of the water to which he is entitled. It clearly cannot operate to prevent the taking of any water which is not required by the defendant in error for the irrigation of the lands to which it is applied; nor do we think it was intended to so operate. The, rule must be the same as between any other appropriators. (Long- on Irr., Sec. 61.)

There is nothing in the law of prior appropriation that prevents a change of the place of diversion, if that can be accomplished without injury to others. We are unable to discover in the evidence anything to show that the plaintiffs in error are injured by the diversion of the water under the conveyance at the headgate of the ditch of defendant in error, instead of at the point where it was originally diverted by the Spring Vale Ditch Company.

Neither do we discover from the evidence that the use of all the water by the owners on alternate weeks respectively, as provided in the deed, operated to the detriment of the plaintiffs in error. Such an agreement between several persons who have appropriated water as tenants in common does not seem to be objectionable in itself. (Long on Irr., Secs. 61 and 85; Kinney on Irr., Secs. 301, 302; Lytle Creek Water Co. v. Perdue, 65 Cal., 452 (4 Pac., 427); Cache La Poudre Irr. Co. v. Larimer & Weld Res. Co., 25 Colo., 144 (53 Pac., 318); Meagher v. Hardenbrook, 11 Mont., 385 (28 Pac., 451.) It is, of course, true that the defendant in error, as against subsequent appropriators, could use only so much as he could use beneficially. The deed having conveyed an undivided one-half of the water right to the defendant in error, the parties thereupon stood in relation to each other the same as if they had originally made a joint appropriation.

The record disclosing no error, the judgment will be affirmed. Affirmed.

CORN, C. J., concurs.