Parshall v. Cowper

Beard, Justice. This action was brought by the defendants in error against the plaintiffs in error and Carson Adams, water commissioner, to enjoin them from closing a headgate and shutting off a part of the water claimed by plaintiffs below. The district court granted an injunction, and plaintiffs in error appeal. It appears that the Cowpers were the owners of certain lands, and on March 26, 1892, in a proceeding for the adjudication of the waters of Soldier creek, the board of control granted to the Plome Ditch or Home Water Ditch the first and prior right to the use of the waters of said creek in the amount of 1.8 cubic feet per second of time for the irrigation of 120 acres of the Cowper lands, said ditch being owned by them and taking water from said creek. On December 31, 1910, the Cowpers sold and conveyed to the City of Laramie said ditch and water right, and by agreement between them the Cowpers continued to use the ditch and water to irrigate a part if not all of said lands until July 12, 1912, when defendants shut off the water from said ditch except .38 of a cubic foot. The plaintiffs alleged that at that time and at the time of the commencement of this action, July 27, 1912, they desired to irrigate all of the 120 — 392 — acres. Adams made default, and the other defendants, the state engineer and the division superintendent, answered and admitted that only .38 of a cubic foot of water was allowed by them to flow down the creek to the headgate of said ditch; but sought to justify their action in so doing by pleading and offering to prove among other things that neither the plaintiffs or their grantors had at any time either before, at or after the time of said adjudication by the board of control used or applied to beneficial uses to exceed .38 of a cubic foot of water or had irrigated to exceed 20 acres of land by means of said ditch, and that it was not so constructed as to be capable of irrigating more than 60 acres. The court, on motion of plaintiffs, struck out the allegations of the answer by which defendants sought to show that the plaintiffs were not entitled to the amount of water awarded to said ditch by the Board of Control, evidently being of the opinion that the State Engineer and his subordinates were limited in their powers in the distribution of the waters of the stream to distribute the same according to the priorities established by the board and in the quantity so established. Whether that ruling was or was not correct is the main question in the case. At the time the adjudication of the water rights on Soldier creek was made by the Board of Control, it was the duty of the State Engineer to make an examination of the stream, and the works diverting water therefrom, including the measurements of the discharge of the stream, and of the carrying capacity of the various ditches and canals diverting water therefrom; and an examination of the irrigated lands, and an approximate measurement of the lands irrigated, or susceptible of irrigation from the various ditches and canals, which observations and measurements were .required to be reduced to writing, and made a matter of record in the Engineer’s office. (Ch. 8, Sec. 24, S. E. 1890-1; Comp. St. 1910, Sec. 776). After the completion of such measurements and the return of the evidence taken by the Division Superintendent, the Board of Control was required to make and enter of record in its office, an order — 393 — determining and establishing the priorities of rights to the use of the waters of the stream, and the amounts of appropriations of the several persons claiming water from such stream, and the character and kind of use for which said appropriation shall be found to have been máde. Each appropriation shall be determined in its priority and amount by the time by which it shall have been made, and the amount of water which shall have been applied for beneficial purposes. (Ch. 8, Sec. 25, S. R. 1890-1; Comp. St. 1910, Sec. 777). We have referred to these provisions of the statute for the reason that the answer of defendants, while admitting the adjudication of the water rights on Soldier creek as alleged in plaintiff’s petition, “deny that at that time that the State Engineer or any officer of the Board of Control either made or was required by law to make any examination of any claimed ditch for which a water right was adjudicated but accepted in that behalf the sworn statement of the parties claiming the same”; and for the further purpose of showing that in determining the rights and priorities of the several claimants the Board of Control was required to ascertain and determine the carrying capacity of the ditches and the amount of land then irrigated or susceptible of irrigation by means of each ditch and the amount of water appropriated to each ditch or canal. By the adjudication of the board, the plaintiffs were entitled to use 1.8 cubic feet of water per second of time if they desired to do so, and while applying it to the beneficial uses for which appropriated. Neither the State Engineer nor his subordinates had the right to change, modify or annul that adjudication, or to prevent plaintiff from the use of that amount of water, except to prevent waste. The duty of the officers authorized and required to distribute the water of a stream is to divide the water according to the rights of the appropriators as determined by the Board of Control. That is their authority for the distribution, and without it they cannot lawfully make such distribution. In Ryan v. Tutty, 13 Wyo., 122-131, 78 Pac. 661, 663, in speaking of the powers and duties of such — 394 — officers this court said: “But it is to be observed that the statute clearly contemplates that such official action shall be based upon a record of adjudicated priorities. They are not vested with arbitrary control, but are required to divide the water according to the prior rights of the interested parties.” And again on page 133 of 13 Wyo., on page 664 of 78 Pac.: “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. He is not authorized to determine priorities.” That construction of the statute was approved in Hamp v. State, 19 Wyo., 377-395, 118 Pac. 653. The adjudication by the Board of Control as to the quantity of water to which an appropriator is entitled is as conclusive upon the water distributers as its determination of priorities, with the exception that he may regulate a headgate so as to prevent waste. For the purpose of governing those officers in the discharge of their duties in dividing the water between appropriators the adjudication by the Board of Control is as conclusive as though an appeal had been taken from its decision and a decree entered by the court; and until set aside or modified in a proper proceeding, in which the interested parties are given an opportunity to be heard, are final so far as the water officials are concerned except as above stated. If it were not so, then our entire system for granting appropriations of the -waters of the State and establishing the priorities and the quantity of water each appropriator is entitled to is a vain thing. It must be remembered that this is not an action between water users to determine their respective rights, but an action to require administrative officers in their official capacity to distribute the waters of Soldier creek according to the rights as established by the Board of Control. They are not empowered to determine questions of forfeiture or abandonment. The Supreme Court of Colorado in passing upon that question in Boulder and Left Hand Ditch Co. v. — 395 — Hoover, Water Commissioner, et al., 48 Colo. 343, no Pac. 75, said: “The impropriety of irrigation officers, seeking to have matters, in which they have no personal or private right, determined, in an action in which they, in an official capacity only, are defendants, is manifest. That question must be litigated in a suit between parties whose rights are directly involved. This is a suit by the owner of a water right against officials, charged with the duty of the distribution of water, under decreed rights, between the several users thereof, within their jurisdiction, to compel action accordingly. It is neither their duty nor privilege to question the decrees, where regular in form, in full force and unmodified, or to attempt to impeach or nullify them, or in any-way impair their efficiency. While it may be that there is a degree of discretion vested in these officers respecting the discharge of their duties, it never was contemplated that they should assume the burden .of litigating questions of dispute between the several water claimants, with reference to their respective right under decrees duly rendered and in full force: Primarily their duties are to enforce the decrees of the various claimants to and users of water from a common source, according to their terms. These officers are not concerned in controversies between the various users of water, which 'may only be adjudicated in proper proceedings, brought for that purpose, by those who are the real parties interested in and affected thereby.” The court therefore did not err in striking out those parts of the answer which denied that plaintiffs ever acquired any water right, and also the allegations of forfeiture or abandonment. While the water is to be distributed according to established priorities, the statute also provides that the water commissioner shall, as near as may be, divide, regulate and control the use of the water of all streams within his district by such closing or partial closing of the headgates as will prevent the waste of water, or its use in excess of the volume to which the appropriator is lawfully ^entitled. (Sec. 802, Comp. St. 1910). The volume of water to — 396 — which an appropriator is entitled at any particular time is that quantity, within the limits of the appropriation, which he can and does apply to the beneficial uses stated in his certificate of appropriation. It may be more at one time than at another; and, as we understand the statute, it is for the purpose of regulating the quantity from time to time to which an appropriator is so entitled that the Water Commissioner is given authority to close or partially close a headgate so as to prevent waste of water, and to secure to prior appropriators the quantity of water to which they are entitled; and in the performance of his duties and while exercising a sound discretion and reasonable care in so doing, he is not subject to control by the courts. His acts in so doing are temporary and the quantity may and should be changed from time to time as the needs of an appropriator require. But in exercising that duty he has no authority to determine whether or not a water right has been forfeited or abandoned or to prevent an appropriator from taking the full quantity of water awarded by the Board of Control, when he is prepared to and desires to use it for the purposes, stated in his certificate of appropriation. In that part of the amended answer which was stricken out by the court, after alleging complaint by a junior appropriator to the State Engineer, and an examination of the conditions by his deputy, it is alleged, “that thereupon the State Engineer directed that there be allowed to run down the creek to the headgate of the said Home Ditch thirty-eight one-hundredths (.38) of a cubic foot of water per second of time, which was the largest quantity of water that could be run through said ditch and applied to the irrigation of lands-described in the permit and adjudication by the Board of Control to plaintiffs’ grantors through said Home Ditch.” This allegation, we think, when fairly and liberally construed, presents the defense by the distributing officers, that they allowed all of the water to reach the headgate of said ditch, that in its then condition could be conducted through it and applied to the purposes for which the permit was granted. If. those were the facts, then plaintiffs were — 397 — not injured by the acts of the officers; and it is fair to presume that when plaintiffs are prepared to use and apply more water, they will be permitted by the officers to do so to the amount determined by the board. We think the defendants should have been allowed to plead and prove, if they could, that plaintiffs were permitted to use all the water that was being then applied or that they were then in a position to and desired to apply to beneficial uses under the adjudication; and that the District Court erred in striking out that part of defendant’s amended answer. Some other questions have been presented by counsel for plaintiffs in error, but they admit that they are technical and that the question herein determined disposes of the case on the merits. For the error above stated the judgment of the District Court is reversed and the cause remanded for further proceedings not inconsistent with this, opinion. Reversed. PottRr, J., concurs. Scott, C. J., did not participate in the decision.