Potter, Chief Justice.
This action was brought in the district court by the plaintiff in error, James P. Van Buskirk, against The Red B’uttes Land and Live Stock Company, a corporation, defendant in error, for the recovery of damages for the alleged wrongful diversion of the waters of Five Mile Creek and Willow1 Creek, in Albany county in this state, during the years 19TO, 1911 and 1912, to the injury of the plaintiff as an appropriator thereof for irrigation purposes, and also for ah injunction to restrain the alleged wrongful diversion in the future. The petition contains three causes of action for damages for the alleged wrongful diversion during the years aforesaid respectively, and a fourth cause of action for an injunction. The cause was tried to a jury upon the first three causes of action resulting in a verdict for the defendant under the instructions of the court, and a judgment was thereupon rendered in the action that the plaintiff take nothing and that the defendant recover its costs.
It is admitted by the pleadings that the plaintiff and defendant are respectively appropriators of water from Five Mile Creek, and the petition alleges that the plaintiff’s appropriation also includes the waters of Willow Creek, a tributary of Five Mile Creek and uniting with it about two miles above the point vdiere the latter reaches the lands of the plaintiff; but the answer denies that Willow Creek is either a tributary of, or unites with, Five Mile Creek. It is also [189] admitted by the pleadings that the priorities of right to the use of the waters of said streams were adjudicated and determined by an adjudication and decree.of the State Board of Control made and entered on September 21, 1903, including the rights and priorities of the plaintiff and defendant respectively, and that the lands of the defendant are situated on said streams above the lands of the plaintiff. It appears also from the pleadings that 'by said adjudication the defendant was awarded certain rights prior and superior to those of the plaintiff, and other rights or priorities subordinate to those of the plaintiff.
The petition alleges in substance as to the wrongful diversion that until the year 1910 the plaintiff had generally received and obtained sufficient water to irrigate his lands, but since and including that date (the petition having been filed on July 30, 1912) the defendant had diverted the waters of said streams to lands owned and controlled by it and to lands of other persons, by means of numerous dams and ditches for which it had no right or appropriation, thereby collecting and impounding all the waters of said streams to the great damage, injury and detriment of the plaintiff, and thereby and by other means deprived, the plaintiff of his share and appropriations of the waters of said streams, and has thereby permitted and caused the waters of said streams to be wasted; that said streams run aiid contain sufficient water during all irrigation seasons to abundantly supply water for the irrigation of the lands of the plaintiff; that by defendant's said acts it has unlawfully and maliciously deprived the plaintiff of said water, water rights and appropriations during all of said years, and with full knowledge of his prior rights to the water of said streams. The answer denies these allegations, except that it admits that defendant has diverted the waters of Five Mile and Willow creeks where they flow into and upon the lands of the defendant to an extent much less than the respective amounts of the awards in the first priorities of the defendant, and has applied such waters to beneficial use for the irrigation and cultivation of the lands [190] underlying the dams and ditches for which such priorities were established.
On the trial aforesaid, at the conclusion of the evidence the court instructed the jury at the request of the defendant and over the objection of the plaintiff as follows:
“Instruction No. 1. Five Mile and Willow creeks .being adjudicated streams and the respective water rights of the plaintiff and defendant having been established and determined, the sole remedy to prevent unlawful or wrongful diversion or deprivation of water was to call upon the Water Commissioner to regulate the flow and divide the water of the streams in accordance with such adjudication. The plaintiff, having omitted to invoke this remedy or to apply to the Water Commissioner to regulate such distribution, cannot recover from the defendant in this action. You should therefore return a verdict for the defendant.”
“Instruction No. 2. The jury is instructed to return into court a verdict in favor of the defendant.”
These were all the instructions given to the jury, the court having refused all that were requested by the plaintiff, and the instructions so given were each excepted to by the plaintiff at the time.
1. The evidence is not brought into the record. But the case is brought here without the evidence on the theory that the proposition contained in the first instruction is erroneous upon any conceivable state of facts that might have been proven in the case, and that the second instruction was not given independently of the first or on other grounds; but as a part of the instruction contained in the first and to make it effective, or, in other words, to direct the result in accordance with the first instruction and for the reasons therein stated. And the bill of exceptions, in effect, states that to have been the purpose of the second instruction; it recites that such instruction was given' as a part of the action and instruction of the court in giving instruction number one, and in the certificate of the trial judge allowing the bill it is further recifed that instruction num[191] bered two was based upon instruction numbered one, as in the bill set forth. Conceding that an instruction directing a verdict as in the form of the second instruction, standing alone, could not be considered on error without the evidence in the case, the trial court having certified in allowing the bill that the instruction was based upon another instruction stating that for certain reasons therein' 'explained a verdict should 'be returned for the defendant, we think it must be considered as in effect a part of that, other instruction to enforce by positive direction the contemplated or intended result thereof. The first instruction, while stating that the plaintiff was not entitled to recover and advising that a verdict be returned for the defendant, did not in so many words direct the return of such a verdict; though it may be conceded that it required such a verdict and would be violated if a verdict other than for the defendant.should be returned. But the court no doubt deemed it better to couple the advice of the first instruction with the positive direction'of the second, as these instructions had been framed and requested by counsel for defendant. Having thus certified in allowing the bill and in the certificatés of allowance as to the ground upon which the second instruction directing a verdict was based, the possibility that it might have been given upon other grounds or for other reasons is of course negatived by the record; thus bringing the case, we think, within the rule allowing the review' of instructions without the evidence where it is claimed that they would be erroneous under any conceivable state of facts that might be proven under the issues in the case. (3 Cyc. 169-170; Downing v. State, 10 Wyo. 373, 69 Pac. 264.) But a consideration of the instructions is limited to determining whether they’ would be correct under any evidence that might properly have been admitted.
2. It is contended by counsel for defendant in error that it is immaterial whether the instructions were'or were not erroneous, for the reason that the petition is insufficient to support a judgment in favor of the plaintiff. This ‘objection [192] to the petition is made for the first' time in this court, and therefore the pleading must be construed liberally and supported by every legal intendment, and upheld if the necessary facts are fairly to be inferred from the allegations. (Grover Irr. Co. v. Lovella Ditch Co., 21 Wyo. 204, 230, 131 Pac. 43, Ann. Cas. 1915D. 1207.) It is argued that the petition is insufficient for failure to allege that the defendant diverted more water than it was entitled to under its preferred priorities, and that during the irrigation season during the years in question there was a sufficient supply of water in the streams to satisfy the admitted prior appropriations of the defendant, so as to leave at any time a supply of water in said streams which the plaintiff would be legally entitled to use. In addition to the averments of the petition above stated, it alleges the priorities allowed by the decree of the Board of Control to the plaintiff and defendant respectively, and also the capacity of said streams, which we think must be understood as referring to the quantity of water ordinarily flowing therein, thereby showing that the water of the streams is much greater in amount than defendant’s senior priorities. It is further alleged that the defendant had abandoned many of the appropriations awarded to it by said decree, and that during the years aforesaid the defendant had caused and permitted all the waters of said streams to be backed up in dams, pools and depressions of ground on its own premises and the premises of others under its control, and thereby caused said waters to be wasted and deprived the plaintiff of his 'share and appropriations thereof. At least as against the objection made for the first time on this appeal we think the petition contains sufficient averments to state a good cause of action.
3. We are unable to agree with the contention that the first instruction contains a correct statement of the law. The statute creating the office of water commissioner and prescribing the duties thereof does not expressly abrogate any of the common law remedies of one who has been wrongfully deprived of the use of water to which he is [193] entitled, nor can we find anything therein to justify a holding that the right to resort to such remedies is taken away by implication. In Farm Investment Co. v. Carpenter, 9 Wyo. no, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918, when considering that part of the statute regulating water rights which provides for an adjudication of priorities by the State Board of Control, upon the contention that the act was unconstitutional for the reason that it confers judicial power upon the Board in violation of the provisions of the Constitution dividing the state government into three distinct departments and vesting the judicial power in certain specified courts, this court said:
“The statute nowhere attempts to divest the courts of any jurisdiction granted to them by the constitution to-redress grievances and afford relief at law or in equity under the ordinary and well-known rules of procedure.” And further: “The jurisdiction of equity to entertain suits for quieting title to the use of water is well settled. The Legislature has not attempted, to divest the courts of that jurisdiction, and we do not think it could successfully do so. Although in the statutory proceeding for the determination of water rights, the courts obtain jurisdiction only by way of appeal from the decisions of the Board of Control,- all the ordinary remedies known to the law pertinent to the use and appropriation of water, are open to all interested in such rights, equally with all other persons in respect to any other kind of right or property. The courts possess ample jurisdiction to redress grievances growing out of conflicting interests in the use of the public waters, and to afford appropriate relief in such cases. * * * * The jurisdiction of the courts remains as ample and complete after, as well as before, an adjudication by the board. .But the principle applies here as in other cases, that a party may not re-litigate a question which has passed into final adjudication. And the courts will not assume in an independent action, to determine anew the rights of parties, which, as between themselves, have been settled by the decree of the [194] Board of Control; at least in' the absence of fraud, or a showing of facts sufficient to vitiate a judgment.”
The provisions relating to the appointment and duties of water commissioners have been stated and considered by this court in several cases. (Ryan v. Tutty, 13 Wyo. 122, 78 Pac. 661; Hamp v. State, 19 Wyo. 337, 118 Pac. 653; Parshall, State Engineer, v. Cowper, 22 Wyo. 385, 143 Pac. 302.) Ryan v. Tutty was an action brought to restrain the defendant .from interfering with plaintiff’s prior appropriation by diverting the water of certain springs, and the principal question was whether the water of said springs, which had been diverted by the defendant, naturally flowed into the stream from which plaintiff’s appropriation was made and down to the headgate of his ditch, so as to compose part of the waters appropriated by him. The priorities upon the stream had been adjudicated by the State,Board and it appeared that the plaintiff had invoked the services of the water commissioner to distribute the water of the stream. He offered but was not permitted to show that the commissioner and his superior officer, the superintendent of the water division, had decided’ that the plaintiff was entitled under his appropriation to the water of-the .springs as a tributary of the stream. And it was contended on behalf of the plaintiff in this court that the decision of the commissioner and superintendent was binding upon the defendant until reversed on appeal under the statute providing for an appeal to the state engineer. In disposing of that contention we said:
“In our opinion, the testimony was properly excluded. * * * * N0 doubt it became incumbent upon the commissioner when his services were requested to satisfy himself on that question before acting. But his decision, or a failure to take an appeal therefrom, did not cut off the right of the interested parties to contest the matter in some proper proceeding in the courts, nor divest the courts of their general jurisdiction in the premises. * * * * They (water commissioners) are not vested with arbitrary control, but [195] are required to divide the water according to the prior rights of the interested parties. The duties imposed upon them in the matter now under consideration are executive; they are administrative agents; and, while in the performance of their duties the exercise of judicial discretion is necessary to a very limited degree, the power conferred is executive rather than judicial, and, although an appeal is allowed from their action and decision to higher authority, and even in the end to the courts, we find no design in the statute to render the remedy by appeal exclusive. * * * * Primarily, the commissioner is authorized, whenever legally called upon, and it is his duty, to see that the water of a particular stream is diverted in accordance with the established priorities, and to prevent anyone from taking more water than he is entitled to take to the injury -of others. * * * * We perceive nothing in the statute, or in the nature of his duties, that renders a decision on his part in the premises a permanent adjudication of the matter, or that even prevents him from changing his decision when again called upon to perform similar duties should he conclude that he had previously acted erroneously. It is true that it is the duty of appropriators and others to respect his authority and orders, and that, for a violation thereof, an offender may be punished, under the statute, as for a misdemeanor. But that is no reason for holding his action and decision .binding upon the courts when the point in controversy comes before them for' determination in an appropriate action between the interested parties.”
These and similar provisions in other states relating to the appointment and duties of water commissioners are upheld as a proper exercise of the police power of the state, and the effect thereof is often referred to by text writers and in the decisions as the policing of the public waters. Mr. Kinney states in his work on Irrigation that the duties of such officers “are, in fact, in the nature of water police, whose duties are to protect the rights of the lawful appropriators, and to arrest those who unlawfully infringe upon [196] their rights.” (3 Kinney on Irrigation (2nd Ed.), Sec. 1345.) While the statute requires that the water commissioner shall begin his work upon written demand being made upon him therefor by one or more appropriators, as well as by direction of his superior officer, there is no provision declaring it to be the duty of an appropriator, in case of a wrongful diversion to his injury or other interference with his right, to demand a distribution of the waters by the commissioner. Whether a failure to call upon the commissioner for the performance of his duties might in any case be considered as evidence against an appropriator claiming to have .been injured by an unlawful diversion, where there is a conflict in the testimony as to the fact or effect of such diversion, or in mitigation of the alleged wrongful act, is a question unnecessary to decide, and it has not been considered.
It is argued that the duty of the water commissioner to distribute the waters of a stream where the rights thereto have been adjudicated by the Board of Control is like that of a sheriff in executing the judgment of a court. But there is no proper ground for the comparison. The commissioner’s authority is not the decree of the Board of Control adjudicating the priorities; the latter is merely the evidence of the various rights and priorities to the use of the water of the stream upon which the commissioner acts. The commissioner’s authority is found in the statute, not to enforce any decree of the Board, but to regulate the distribution of the water in accordance with the appropriation and priorities as established by its decree in the statutory proceeding. As explained in Farm Investment Co. v. Carpenter, supra, the proceeding before the Board is not one where a claimant to water obtains redress for an injury, nor-to result in the issuance of any writ or process known to the law to prevent the unlawful invasion of a party’s rights or privileges; but the proceeding is inaugurated only by order of the Board, and its result is a settlement or adjustment of the several priorities of appropriation, to be [197] followed by the issuance of a certificate to each appropriator showing his relative standing among other claimants, and the amount of water to which he is entitled, as evidence of his title or right to the use of the water.
Notwithstanding that the office of water commissioner or water master is provided for in many of the western states where the acquirement of water rights for irrigation and other purposes by priority of appropriation is permitted, and that such provisions have been in force for many years in some of the states, it does not seem to have been held in any case that such provisions supply the only remedy for an unlawful diversion of water to the injury of an appropriator entitled to the use thereof or for any other wrongful interference with an appropriator’s right to the use of water. On the contrary the cases are numerous in which the right to damages as well as an injunction has been sustained, apparently in the absence of' any prior demand that the commissioner or other authorized officer shall regulate the distribution of the water. (3 Kinney on Irr. (2nd Ed.), Secs. 1596-1610, 1661-1662.)
The office of water commissioner with substantially the same duties now prescribed by our statute had been provided for in Colorado before the enactment of our law upon the subject; and an earlier statute of that state contained a provision like that formerly found in our statutes authorizing the occasional appointment of' commissioners to apportion the water of any stream, when insufficient to supply the continual wants of the country through which it passes, “as they may in their judgment think best for the interest of all parties concerned, and with due regard to the legal rights of all.” (Colo. Gen. Laws, 1877, Sec. 1375, p. 515; Wyo. Comp. Laws, 1876, p. 377, Sec. 4.) Yet it was early held in Colorado that an action will lie for a wrongful diversion. (Yunker v. Nichols, 1 Colo. 551 (1872); Schilling v. Rominger, 4 Colo. 100 (1878); Crisman v. Heiderer, 5 Colo. 589 (1881). And in many cases since the later statute was enacted providing for water com[198] missioners. (Medano Ditch Co. v. Adams, 29 Colo. 317, 68 Pac. 431; Buckers Irr. M. & I. Co. v. Farmers’ Ind. Ditch Co., 31 Colo. 62, 72 Pac. 49; Kerr v. Burns, 42 Colo. 285, 93 Pac. 1120; Kern Res. & Ditch Co. v. Weldon Valley Ditch Co., 57 Colo. 302, 141 Pac. 1196.)
In Stoner v. Mau, 11 Wyo. 366, 399-400, 72 Pac. 193, a case quite parallel to this in principle, it was held that the statutory provisions for the appointment of a distributer of the water of a partnership ditch, where the joint owners were unable to agree relative to the distribution of such water, were not intended as a substitute for an action for damages or an injunction, and we said with reference to that matter: “It (the statute) certainly provides no means whereby one who has suffered injury through the wrongful diversion of water by another may recover damages for that injury. And, although it may be true that by pursuing the remedy provided by the statute an injunction might be rendered unnecessary to prevent a continuance of the wrong and resulting injury, we cannot regard the statute as depriving the courts of their equitable jurisdiction in such cases. There is nothing in the statute referred to indicating that it was adopted as an exclusive remedy in cases of disagreement among joint ditch owners.” The statute has since been repealed and water commissioners are now vested with authority to regulate the distribution of water among the various users under any partnership ditch or reservoir where the rights have been adjudicated, in accordance with existing decrees. (Comp. Stat. 1910, Sec. 801.) Like the statute considered in the case cited, the statute authorizing the water commissioner to take charge of the distribution of the water of a stream by direction of the division superintendent or on the demand of an appropriator does not in any way refer to the recovery of damages or provide any other redress for an injury caused by a wrongful diversion, nor are we able to find anything in the statute indicating an intention to take away the right to injunctive relief. On the contrary in a statute enacted in 1907 amending certain [199] sections of the statutes relating to water rights, including those prescribing the duties of water commissioners, and adding several new' provisions, the right to such relief was recognized and the procedure regulated in some respects. It is thereby provided that in suits for injunction affecting the use of water from streams upon which the rights have been adjudicated, no restraining order shall be granted before hearing had after at least three days’ notice served upon the defendants; that all suits for injunction involving the use of water from streams shall be heard, either in term time or vacation not later than fifteen days after issue joined; and that in no case shall an injunction or restraining order be issued or become operative until the party obtaining the same executes an undertaking to the defendants to secure to the party enjoined all actual damages he may sustain if it be finally decided that the injunction or restraining order ought not to have been granted. (Laws 1907, Ch. 86, Sec. 21; Comp. Stat. 1910, Sec. 4900.)
Subject to the general principle that whether or not a statutory remedy is exclusive or merely cumulative depends upon the legislative intent, as shown by the terms of the statute when judicially construed, the rules for determining the question are, briefly stated, as follows: 1. If a new substantial right is given with a prescribed remedy, and that remedy is adequate, or, as held in some cases, even if inadequate, such remedy is exclusive. 2. Where, for a preexisting right a new remedy is provided, then such statutory remedy is ordinarily to be regarded as merely cumulative, and is to be so held unless the former remedies are abrogated either expressly or by necessary implication. (7 Ency. Pl. & Pr. 372-373; 1 Cyc. 706-710; 1 C. J. 988-991; 1 R. C. L. 323-324.) This case comes within the rule relating to a new remedy for a pre-existing right, for there can be no doubt that at common law, and under the code prescribing civil remedies, there would be a right of action for damages for a wrongful interference with a water right to the injury of the owner thereof, as well as for an injunction to restrain such interference. (40 Cyc. 609, 684, 729, 738.) [200] Counsel for defendant in error cite several cases in support of their contention that the jury were correctly instructed as to the effect of the statutory provisions aforesaid relating to the duties of water commissioners, including cases decided by the Supreme Court of the United States under the Interstate Commerce Act, among others the case of Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 533, 9 Ann. Cas. 1075. But we do not think they are in point, except as to their statements of general principles with reference to the exclusive or cumulative effect of statutory remedies. A case which we think more in point, if not entirely so, is Atkinson v. Virginia Oil & Gas Co., 72 W. Va. 707, 79 S. E. 647, 48 L. R. A. (N. S.) 167. That was an action for the recovery of damages for the failure of the defendant to plug an oil well upon abandoning the same, to the injury of the plaintiff as the lessee of an adjoining tract of land, resulting in destroying the flow of gas into the plaintiff’s well. The statute made it the duty of the owner of a gas or oil well, before abandoning or ceasing to operate it, to plug it in a prescribed manner, and in addition to prescribing a penalty for a non-compliance with its requirements, authorized a neighboring land owner or lessee to enter upon the land on which the abandoned well is located and plug the same and charge the owner thereof with the reasonable cost and expense of the work, and also to proceed by bill in equity to compel the owner to comply with the statute. It was contended that such remedies were intended to be exclusive and to take away the common law remedies. Referring to that contention the court said: “We are unable to concur in this view. As to a right of action for damages, the statute is silent. It fails to deal with that subject at all. Failing to cover this feature of the subject matter, it lacks comprehensiveness, one of the essentials of the application of the rule of construction invoked (citing cases). Failure on the part of the adjacent owner to avail himself of the statutory remedies may be a mitigating circumstance, but as to this we express no opinion.”
[201] A statute of New Hampshire provided that if any railroad company shall neglect to keep a sufficient and lawful fence on each side of its road, any person against whose land such fence is insufficient, may notify the agent of such corporation thereof, and if such fence shall not be made sufficient within twenty days after such notice, the owner may make or repair the fence and recover of the corporation double the amount necessarily expended in making or repairing the same. In an action against a railroad company for damages caused by the depasturing of plaintiff’s land by cattle owing to the failure of the company to maintain a sufficient fence along its line of railroad against the plaintiff’s land, it was contended that the statute provided the only remedy; but the contention was not sustained. Referring to the general rule that where a new right is given by statute and a remedy provided for a violation thereof, such remedy is exclusive, the court held that it had no application to the case, and said: “If, in cases of that class, the remedy is, in its nature, coextensive with the injury, to which the party is exposed, the rule as stated would not be unreasonable. But it is apparent here, that the remedy provided is not general, but limited to a single object, that of obtaining compensation for building the fence after notice. It is in the nature of a provision to enable a party to anticipate and prevent'the mischiefs that might result from neglect to build a fence; but it contains no provision whatever, for any adjustment of the damages which may have already resulted from neglect of duty. * * * * * It can surely be no answer to an action for an injury to a man’s cattle, when, through the neglect of -the railroad to fence, they have escaped upon the track and have been injured, that the statute has provided a different remedy for neglect to build the fence. The statute remedy applies to no case, where twenty days’ notice has not been given to build the fence.” (Dean v. Sullivan Railroad Co., 22 N. H. 316.)
So where a statute authorized a land owner to “take up” cattle trespassing on his land, and hold them, subject to the [202] provisions of such statute, and it was contended in an action for the trespass that the plaintiff’s only remedy was to institute proceedings under the statute against the cattle themselves and their owners, it was held that the statutory remedy by process in rem against the cattle themselves did not take away the remedy to recover damages from the owner of the cattle for wrongs done by them where they were not distrained damage feasant. (Trescony v. Brandenstein, 66 Cal. 514, 6 Pac. 384.) And under a statute authorizing a corporation -building a plankroad to demand and receive toll according to specified rates, and to detain and prevent persons driving carriages through their gates until they shall have paid the tolls, it was held that the statute did not prescribe the exclusive remedy so as to prevent a recovery of the tolls in an action therefor. (The J. & S. Plankroad Co. v. Morley, 23 N. Y. 552.) It was early held in this state that the statutory provision allowing an appeal from the disallowance of a claim by a board of county commissioners did not prevent a claimant, after such dis-allowance, from bringing an ordinary action to recover the same, instead of appealing from the decision of the board. (Boswell v. County Commr’s., 1 Wyo. 235.)
We are of the opinion that the court erred in declaring in the instruction aforesaid that a demand upon the water commissioner to distribute the water is the sole remedy and ' that because the plaintiff had not invoked that remedy he could not recover in the action. It clearly appearing that the verdict was directed and the case disposed of upon that ground, the judgment must be reversed, so far as it relates to the alleged causes of action for damages, and the case remanded for a new trial upon those causes of action. If, as we assume, the judgment was intended also to deny an injunction, it will not as to that matter be disturbed, since the evidence is not in the record.
Reversed and remanded.
BEARD, J., concurs.
Scott, J., did not participate in the decision.