Laughlin v. State Board of Control

128 P. 517, 21 Wyo. 99, 1912 Wyo. LEXIS 14

Opinions

Scott, Justice.

On May 14, 1908, an application under the provisions of Secs. 743, 744, Chap. 59, Comp. Stat., was filed in the office of the State Engineer on behalf of the plaintiff in error for a permit to construct a reservoir to be known as Lake Reservoir, for irrigation, stock water and domestic purposes, as recited therein. The application was examined by the State Engineer and that officer on May 18, 1908, returned it to the applicant for additional information. The instrument bears the following endorsement, to-wit:

“State Engineer’s Office, State of Wyoming, ss.

“This instrument was received and filed for record on the 14th day of May, A. D. 1908, at 9 o’clock a. m.« .

“(Signed) Clarence T. Johnston,

“State Engineer.”

The' application also has the following notation, to-wit: “Superseded by application No. 6 6/321, this being returned for correction. Witness my hand this 9th day of September, A. D. 1908. — Clarence T. Johnston, State Engineer.” On June 30, 1908, another application for a permit to construct the Lake Reservoir in behalf of Laughlin was filed in the office of the State Engineer, and which application was designated by the Engineer as No. 6 6/321. The following certificate is endorsed thereon, viz: “This is to certify that T have examined the foregoing application and have returned the same without my approval for the following reasons: ‘Application received on June 22nd, 1908, for administrator 6f the Carroll estate for same reservoir and site; permit issued therefor on this date.’

“Witness my hand this 7th day of July, A. D. 1908.

“Clarence T. Johnston,

‘‘State Engineer.”

Laughlin appealed from the rejection of his application and the refusal of the Engineer to grant him a permit to construct said reservoir to the Board of Control, which board sustained the decision of the State Engineer, and thereafter Laughlin appealed from the decision of such board to the District Court of Albany County and upon trial the defcision of the State Engineer was again affirmed and the appeal was dismissed and Laughlin brings the case here on error. In his letter of May 18, 1908, returning Laughlin’s first application the State Engineer says: “We are returning herewith maps and application for the Lake Reservoir for additional information.

“It is proposed to fill this reservoir from the Little Laramie River. The ditch which fills the reservoir is not shown. If it is proposed to fill the reservoir through an existing ditch, such ditch should be enlarged for the purpose of'filling the reservoir, and the written consent of the owners of the ditch must be filed in this office before the application can be approved. The outlet reservoir should be shown and the land on which the water is to be used should also be filed upon. If it is already filed upon the number of the permit or the description of the land should be given so that the reservoir can be tied in to the lands for which the water is to be used.” That the State Engineer could before passing finally upon the application require additional information is expressly provided by statute.

A comparison of the applications filed in behalf of Laugh-lin, to-wit: the one filed on May 14, 1908, and the one filed June 30, 1908, show upon their face that they were filed in his behalf for permit to construct the same reservoir. The endorsement on the first of these applications which was made September 9, 1908, that it was superseded by the last application is not borne out by the facts. There is no pretense that Eaughlin was acting in bad faith or intended to surrender any of his rights under his first application. On the contrary, the showing is that his second application was filed in response to the letter of the Engineer calling for additional information with reference to his first application.

Section 744, Chap. 59, Comp. Stat., is as follows:

“All applications under this chapter shall be subject to the provisions of Secs. 728 to 737 inclusive, and Secs. 825, 826, 827, which set forth the duties and authority of the State Engineer and provide for the protection of the rights of applicants; Provided, That an enumeration of any lands proposed to be irrigated under this chapter shall not be required in the primary permit. The party or parties proposing to apply to a beneficial use the water stored in any such reservoir shall file with the State Engineer an application for permit, to be known herein as the secondary permit, in compliance with the provisions of Secs. 727 to 737 inclusive. Said application shall refer to such reservoir for 'a supply of water and the State Engineer shall not' approve the said application and issue secondary permit until the applicant thereunder shall show to such State Engineer by documentary evidence that he had entered into an agreement with the owners of the reservoir for a permanent and sufficient interest in said reservoir to impound enough water for the purposes set forth in said application. When beneficial use has been completed and perfected under the said secondary permit the Division Superintendent shall take the proof of the water user under such permit and the final certificate of appropriation shall refer to both the ditch described in the secondary permit and the reservoir described in the primary permit.”

By Section 734 it is provided among other things that “Each application for permit to appropriate water for beneficial uses shall be accompanied by a map or plat in duplicate showing accurately the location and extent of the proposed work.” Section 735 provides that “It shall be the duty of the State Engineer to examine these maps or plats and to ascertain if they agree with the description contained in the application, and when found to agree or made to agree, to approve the same, file one copy in his office and return the other approved to the party filing them.” Section 737 in its present form has been in force ever since 1907 and provides, at least when the Engineer requires it, that * * * “The maps of all proposed reservoirs shall show the surface of the ground under water, and a sufficient number of lines of level shall be shown so that the contents of the reservoir or basin may be approximately determined. I-f the levels shall be shown by contour lines they shall be on a scale sufficiently large to show vertical levels not exceeding five feet, and with all such reservoir plans there shall be furnished a plan, on a scale of not less than one inch to four feet, showing the method of providing a waste-way for such reservoir or basin. If the State Engineer deems it necessary he may require the submission of. conv píete plans and specifications for his approval. He may also require the filing of field notes of canal and reservoir surveys.” In the application filed on behalf of'Laughlin it is stated that the outlet of the proposed reservoir is located in the NEJ4 of Section 31, Township 17 North, Range 74 West. Its description or that of the wasteway is by Section 737 to be shown by the plat accompanying and illustrating the proposed work. It will also be observed that the Engineer may require the submission of complete plans and specifications for his approval and the filing of field notes of the proposed reservoir. Such additional information is advisory and evidently so intended by the Legislature. The statute nowhere limits the time within which to furnish such additional information, though doubtless it ought to be furnished within a reasonable time. By Section 729 it is provided that “All applications which shall comply with the provisions of this chapter and with the regulations of the Engineer’s office, shall be recorded in a suitable book kept for that purpose; and it shall be the duty of the State Engineer to approve all applications made in proper form, which contemplate the application of the water to a beneficial use and where the proposed use does not tend to impair the value of existing rights, or be otherwise detrimental to the public welfare. But where there is no unappropriated water in the proposed source of supply, or when the proposed use conflicts with existing rights, or threatens to prove detrimental to the public interest, it shall be the duty of the State Engineer to reject such application and refuse to issue the permit asked for.” The words “when the proposed use conflicts with existing rights” mean rights which are prior in time to the use of the water. The requirement of a record of the application was evidently deemed necessary to preserve the right of appeal, and as it might have a material bearing if perfected upon the priorities of water rights from the same source of supply.

It was not necessary under the provisions of Sections 743 and 744 to set forth in the application or to show upon the map the land intended to be irrigated from the reservoir. I'f the application complied in form and contained the requirements of the former section it was complete as a primary application to construct the reservoir and if thp source of'supply of water was sufficient and if the proposed use of the water would not conflict with the rights of prior appropriators or threaten to be detrimental to the public interest the applicant was entitled to a permit. (Sec. 729, id.) The information called for by the State Engineer’s letter was not required by the statute to be stated in the application. As required by Section 743, it sets forth the applicant's name and postoffice address; the source of the water supply; the nature of the proposed use; the location and description of the proposed work; the time within which it is proposed to begin construction and the time required for the completion of the construction. It was not nor is it here claimed that the approval of the application would be detrimental to the public welfare nor was its refusal subsequently endorsed thereon placed upon that ground. The application measured up to the requirement of the statute, and was, therefore, entitled to be filed, as it was, and to be considered by the State Engineer. Conceding that such officer might require additional information before either approving or rejecting it, to enable him to 'properly guard the public interests, as provided by Section 731, he could not properly require as' a condition to his approval that the land to be irrigated or reclaimed be shown, for the reason that the necessity of such a showing for the primary permit is dispensed with by the provisions of Section 744, above quoted. Nor would the fact that he required additional information under and within the authority conferred upon him by Section 731 disturb the priority of the application as of the date of its'filing if any such information properly required should be furnished within a reasonable time; but upon the furnishing of such information within a reasonable time the application would be entitled to consideration and to be approved, if at all, with priority as of the date of its filing, ■ and that right would not be lost or disturbed by the fact that the application of another party may have been filed in the meantime before the final action of the Engineer. It would not be proper, therefore, under such circumstances for the Engineer to reject the application merely upon the ground that a conflicting application had been afterwards filed by another party. As appears from the endorsement of the State Engineer, the application was not rejected because the information called for was not furnished, but solely on account of the subsequent application. The information seems to have been furnished in the form of another application, but since that was filed to comply with the requirement of the Engineer as to additional information, it should properly and in justice to the applicant be regarded as a part of the original application, adding information called for by the Engineer. Therefore, whatever right Laughliri had to a permit to construct the reservoir should have been determined with reference to the date of filing the original application. (Secs. 730, 750, id.)

The title to the proposed reservoir site, or the right -of way for the supply ditch, or the written consent of the owners of a ditch already constructed to enlarge and use it for supplying the reservoir and the title to the land proposed to be irrigated were matters not required by the statute to be stated in this application. The application and permit-to construct the reservoir was the initial step and all other matters necessary in order to do so devolved upon the applicant within the time allowed to complete the work. (Sec. 732.) Title to the land embraced in the proposed reservoir site or right of way for the supply ditch were matters without the jurisdiction of the State Engineer or the Board of Control. The applicant assumed the burden of securing such title or easement as a part of the undertaking to construct the reservoir under the permit applied for and within the time to be fixed by the State Engineer for so doing. The application was not defective, nor does the Engineer’s letter above set out so state. In that letter he expressly says: “We are returning herewith maps and application for the Lake Reservoir for additional information.” The withholding of the permit for additional information with reference to an-application which measured up to the requirements of the statute did not forfeit or postpone the right of the applicant which took effect as of the date of filing such application at least as ab.ove stated when such additional information was filed and we think it was so filed in this case within a reasonable time. Laughlin’s application had neither been refused nor approved. There was no such endorsement made thereon when it was returned for additional information. He was not then in a position to appeal. It is provided by Sec. 733, id., that any applicant feeling himself aggrieved by the endorsement made by the State Engineer upon his application is given the right of appeal in the manner therein set forth. The statute, Sec. 730, id., contemplates either an endorsement of rejection or approval on the application and when made takes effect as of the date of its filing. There can be no other reasonable conclusion upon the facts and the statutes applicable thereto than that Laughlin’s application was valid, entitled to record, and pending at the time of the filing of the application by the administrator of the Carroll estate, and for which latter application permit was granted; and that being so, Laughlin’s first application will be regarded as duly recorded at the date of its filing and he was entitled to a prior right to the permit. His second application must be considered only as additional information with reference to his first application. We are of the opinion that the State Engineer, the Board of Control and the District Court of Albany County each erred in its and their judgment in not awarding to the plaintiff in error a permit in accordance with his application filed on May 14, 1908.

Involved in this proceeding are separate incidental applications in behalf of Laughlin for permits to construct a reservoir and to divert and appropriate waters' of the state as follows,, viz: (1) Application for permit to construct the Laughlin Reservoir, filed for record in the office of the State Engineer on June 26, 1908, and duly recorded; (2) application for a permit to divert and appropriate flood waters of the Little Laramie River by means of the Laughlin Inlet Ditch for filling the Laughlin and Lake Reservoirs, filed and duly recorded in the office of the State Engineer on June 26, 1908; (3) application for a permit to divert and appropriate flood waters of the Little Laramie River by means of the Lake Inlet Ditch for filling the Lake Reservoir, filed and duly recorded in the office of the State Engineer on June 26, 1908; (4) application to appropriate flood waters of the Little Laramie River through Laughlin and Lake Storage Reservoirs through and by means of Lake Supply Ditch for irrigation purposes, duly filed in the office of the State Engineer on June 26, 1908. There is no endorsement of approval or non-approval upon any of these applications. They all relate to impounding the flood waters of the Little Laramie in the Laughlin and Lake Storage Reservoirs with the exception of the fourth application, which asks for a permit to apply the water to the irrigation of certain lands described therein by conducting it to and through the Laughlin and thence through the Lake Reservoir to such land, and depend upon the granting of a permit for the Lake Reservoir, and these applications show that they were a part of the same system.

The judgment is reversed and the case remanded to the District Court of Albany County with direction to vacate its judgment and to enter judgment awarding L. L. Laugh-lin, the plaintiff in error here and appellant there, the permit-applied for in his application filed May 14, 1908, and to certify such judgment to the Board of Control and the State Engineer with directions to vacate their ruling and to cause the issuance of the permit to construct the Lake Reservoir in accordance with and as of the date of filing his application for a permit, viz: May 14, 1908, and such of the other permits applied for as would be proper in connec tion with such reservoir permit as and of the respective dates of filing in the office of the State Engineer.

Reversed.

Beard, C. J., and Potter, J., .concur.