Opinion
No. 2044
September 21, 1939 Rehearing denied December 12, 1939
JUDGMENT — MODIFICATION — CLERICAL ERROR — PROOF REQUIRED — WATER RIGHTS — LACHES — ESTOPPEL — RULE OF PROPERTY.
1. A proceeding to modify a judgment entered in 1888, on ground that by mistake of clerk a decree awarding a city 12.481 cubic feet of water per second from a creek was entered on the journal as awarding 12,481 cubic feet, was barred by the statute which had been enacted prior to entry judgment complained of, providing that proceeding to vacate or modify a judgment must be commenced within two years after rendition of judgment (Rev. St. 1931, §§ 89-2301, 89-2310). 2. In proceedings to modify a judgment entered in 1888, on ground that by mistake of clerk a decree awarding a city 12.481 cubic feet of water per second from a creek was entered on the journal as awarding 12,481 cubic feet per second, court would not modify judgment by exercising its alleged inherent power to correct clerical errors where death of all important witnesses made it impossible to determine whether mistake had been made. 3. In proceeding to modify a judgment entered in 1888, on ground that by mistake of clerk a decree awarding a city 12.481 cubic feet of water per second from a creek was entered on journal as awarding 12,481 cubic feet of water, the fact that 12,481 cubic feet of water was a very large amount to be awarded city did not alone establish that mistake existed, in absence of authentic transcript of evidence of proceeding which culminated in judgment complained of. 4. In proceeding to modify a judgment entered in 1888, on ground that by mistake of clerk a decree awarding a city 12.481 cubic feet of water per second from a creek was entered on journal as awarding 12,481 cubic feet of water per second, to justify modification of judgment proof should be clear, cogent, and convincing, and nothing should be left to guess work, speculation, or conjecture. 5. In proceeding to modify a judgment on ground that by mistake of clerk a decree awarding a city 12.481 cubic feet of water per second from a creek was entered on journal as awarding 12,481 cubic feet of water per second, the plaintiff, who owned a ranch adjacent to creek, was prevented from seeking to modify judgment where plaintiff's predecessors in interest were present at trial when water rights were adjudicated. 6. In proceeding to modify a judgment entered in 1888, on ground that by mistake of clerk a decree awarding a city 12.481 cubic feet of water per second from a creek was entered on journal as awarding 12,481 cubic feet of water per second, the plaintiff was barred by laches from seeking modification of judgment. 7. Equity aids the vigilant, not those who slumber on their rights. 8. A party seeking relief against a judgment must show diligence. 9. In proceeding to modify a judgment entered in 1888, on ground that by mistake of clerk a decree awarding a city 12.481 cubic feet of water per second from a creek was entered on journal as awarding 12,481 cubic feet of water per second, the plaintiff, owner of a ranch adjacent to creek, by permitting city to expend $4,000,000 in building additions and improvements to its water system while possessing knowledge of existence of judgment imputed to him by reason of knowledge of his predecessors in interest, was estopped from attacking the judgment. 10. Decisions of the Supreme Court establishing water rights of a municipality constituted a "rule of property" which would not be overruled or modified. 11. Where judicial decisions may fairly be presumed to have entered into business transactions of a country and to have been acted upon as a rule of contracts and property, the court must, on principle of stare decisis, adhere to such decisions without regard to how it might be inclined to decide if question was new. 12. Judgments are not readily and without just cause easily set aside, since it is essential that people know what rights they have and what property is theirs. 13. In proceeding to modify a judgment entered in 1888, on ground that by mistake of clerk a decree awarding a city 12.481 cubic feet of water per second from a creek was entered on journal as awarding 12,481 cubic feet of water per second, refusal of court to modify judgment did not deprive plaintiff, who owned ranch adjacent to creek, of his property without due process.
APPEAL from the District Court, Laramie County; SAM M. THOMPSON, Judge.
Proceeding in the matter of the application of the Beaver Dam Ditch Company for an adjudication of the priorities of rights to the use of water for beneficial purposes in Water District No. 1, viz., North Crow Creek, Middle Crow Creek, South Crow Creek, and Clear Creek, wherein H.P. Crowell, doing business under the firm name, style, and description of the Wyoming Hereford Ranch, filed a motion to modify a decree affecting his property and the rights of the City of Cheyenne. From an order denying the motion to modify a decree of the district court adjudicating certain water rights on a stream, the movant appeals.
Before Riner, Chief Justice; Kimball, Justice; and Ilsley, District Judge.
For the appellant, there was a brief by Edward T. Lazear and W.O. Wilson, both of Cheyenne, and oral argument by Mr. Lazear and Mr. Wilson.
We are familiar with the Holt case, 22 Wyo. 212, in which the court apparently recognized the validity of the decree awarding the city 12.481 cubic feet per second of water from Crow Creek. That question was disposed of on demurrer, involving a question of collateral as distinguished from a direct attack on a judgment. The motion here is a direct attack upon the judgment and presents an array of facts never before presented for a modification of the judgment. We direct attention to the numerous instances since 1888, wherein the City of Cheyenne has sought to enlarge its water right from Crow Creek by applications for reservoir permits and otherwise, clearly indicating an effort on the part of the City to correct the error made in the decree of 1888. The tabulations officially prepared by the Board of Control as to water rights from Crow Creek have shown 12.48 cubic feet. It is nowhere shown that the City of Cheyenne ever claimed a water right of 12,000 feet. The purchasers of the Hereford Ranch relied upon these records. The modification of judgments for clerical errors is treated exhaustively in an annotation appearing in 10 A.L.R. 526, 67 A.L.R. 828. From the authorities there set forth, it appears that such modifications have been made after a lapse of from three to fifty years. Clerical errors are distinguished from judicial errors. Freeman on Judgment, 5th Ed. Vol. 1, Sec. 141; Sec. 142 — Limitations; Sec. 144 — Illustrations of Improper Corrections; Secs. 145-146-7 — Clerical Errors; Sec. 152 — Mistakes as to Relief Granted; Sec. 156 — Statutes; Sec. 166 — Laches; Sec. 237 — Statutory Provisions. Courts have power to correct their records at a subsequent term to make them conform to what was actually done at the time, and to do so within a reasonable time, where no change of circumstances has arisen. Bernard v. Abel, 156 Fed. 649. The error here was in entering a different judgment from that which the court had ordered, and the rule is unquestioned that a court of record has inherent right and power at any time to correct or amend its judgment. San Francisco v. Brown, 96 P. 281. Where the order was entered by mistake of the clerk, the action of the court in setting it aside was proper. Boro v. Holtzhauer (Ky.) 67 S.W. 30. Courts have power to correct errors of clerks in entry of judgments to make them conform to judgments actually pronounced. Harn et al. v. Boyd (Okla.) 185 P. 1092. Correction of error of clerk could be made no matter how long thereafter. Martin v. Brown (Mo.) 144 S.W. 1116. Clerical errors in calculation as to which there is no limitation cannot be appealed until lower court passes on an application to correct. Seiler v. Northern Bank (Ky.) 5 S.W. 536. Entry of judgment by clerk is a ministerial act and may be corrected at any time by virtue of inherent power of court. San Joaquin Land Company v. West (Cal.) 33 P. 928. Where judgment includes relief, not warranted under issues, the record may be cleared of it. Nell v. Dayton (Minn.) 49 N.W. 981; Murphy v. Stewart, 43 U.S. 281. Courts have power to allow amendments to judgments; that the judgment entered may express what was rendered, but not judicial errors. Egan v. Egan (Cal.) 27 P. 22; Gagnon v. United States, 193 U.S. 451. Courts may correct entry of judgment in conflict with judgment rendered. Williams v. Hayes (Wis.) 32 N.W. 44. Rendition of judgment is judicial act. Coleman v. Zapp (Texas) 151 S.W. 1040; Tanner v. Wilson (Ga.) 192 S.E. 428; Rogers v. Rigell (Ga.) 188 S.E. 704; Reynolds v. Winship (Ark.) 299 S.W. 16; Ryon v. Thomas (Ind.) 3 N.E. 653; Clemens Company v. Insurance Company (Cal.) 71 P. 599. Garrison v. Davis (Utah) 54 P.2d 439; Weydeveld v. Weydeveld (Colo.) 67 P.2d 72; Silva v. Court (Nev.) 66 P.2d 422. A journal entry must speak the truth. Washakie Livestock Loan Co. v. Meigh (Wyo.) 33 P.2d 922; 15 C.J. 975; Flannery v. Eblen (Tex.) 106 S.W.2d 837; Stevens v. Court (Cal.) 59 P.2d 988. The function of a nunc pro tunc order is to make judgments speak the truth. Hawks v. McCormack (Okla.) 71 P.2d 724. Amendments can be made, if authorized by the record. Bowling v. Evans (Ky.) 96 S.W.2d 916. Laches are predicated on the proposition that Wyoming Hereford Ranch had knowledge of the 1888 decree as early as 1922. This is predicated upon an affidavit made in another case. The point is covered by a statement of this court in Hatten Realty Company v. Baylies, 42 Wyoming 89. The legislature cannot interfere with duties of courts. De Camp v. Central Company (Ariz.) 57 P.2d 311; Nevitt v. Wilson (Tex.) 285 S.W. 1079; Healy v. Westenberg, 47 Wyo. 375; Trust Company v. Burke, 4 Oh. Dec. 257. The court is bound to exercise sound discretion. Redewill v. Court of Maricopa County (Ariz.) 29 P.2d 475. Refusal to vacate may be an abuse of discretion. Ambrose v. Mortgage Company (N.M.) 34 P.2d 294. A judgment is defined by Wyoming Code, Sec. 89-2201, R.S. It is final when it terminates the litigation. Klever v. Seawall, 65 Fed. Rep. 373; City v. Deacon (Cal.) 34 P.2d 183; Dresser v. Dresser (Okla.) 22 pac. 2d 1012; Meyer v. District Court (Mont.) 57 P.2d 778. A final adjudication between the parties is sufficient. Wurzer v. Geraldine (Mich.) 256 N.W. 439; Faulkner v. Faulkner (Ky.) 110 S.W.2d 405. The Beaver Dam case was never determined on its merits. A judgment outside of the issues is a nullity. Winters v. Birch (Okla.) 36 P.2d 907; Henson v. State Bank (Okla.) 23 P.2d 709. A judgment void on its face may be vacated. Michel v. Williams (Cal.) 56 P.2d 546. Statutes limiting power of courts within certain period to control their judgments are not applicable to non-judicial mistakes. Nevitt v. Wilson (Tex.) 285 S.W. 1079; Schloss v. Lennon (Minn.) 144 N.W. 148. The judgment in the Beaver Dam case is void. James v. Lederer-Strauss Co., 32 Wyo. 377; City v. Power Co. (Utah) 17 P.2d 281. A valid decree must rest upon findings. Blaser v. District (Mont.) 53 P.2d 1141. There must be appropriate allegations in the pleadings to support a judgment. U.S.F. G. Co. v. Company (Ore.) 50 P.2d 584; Forry v. Brophy (Okla.) 243 P. 506; City v. Fields (Okla.) 43 P.2d 64; Boulter v. Cook, 32 Wyo. 461. In the Holt case, the court considered the decree and not the record. The Holt case was a collateral attack, while this is a direct attack. The petition and order constituted the record. Poston v. Delfelder, 39 Wyo. 163. The Holt case was disposed of on the basis of the decree solely. It was an action for damages for an alleged unlawful use of water. A judgment is void unless the roll shows it to be valid. Hanson v. Rogers (Ida.) 32 P.2d 127. Where invalidity of a judgment is apparent from the roll, it may be vacated on motion at any time. Norton v. Baranov (Cal.) 35 P.2d 640. Proceedings to vacate or correct judgments may be brought under the statute; in equity, or by inherent powers. Fisch v. Court (Cal.) 43 P.2d 855; Clarke v. Lumber Company, 31 Wyo. 205; Luman v. Hill, 36 Wyo. 42; Sheep Company v. Murphy, 48 Wyo. 250. The following cases were brought in equity: May v. Penton, 45 Wyo. 82; Land Company v. Commissioners, 30 Wyo. 238; Harden v. Card, 17 Wyo. 210; Edward v. Cheyenne, 19 Wyo. 110. This court has inherent common law and equity powers independent of any statute. Healy v. Wostenberg, 47 Wyo. 375. A void judgment is no judgment. Nichols v. Court (Cal.) 28 P.2d 714. Equity may give relief. Company v. George, 44 Wyo. 25. Courts are a distinct department of government, whose provinces may not be invaded by the legislature. Partlow v. State (Ind.) 144 N.E. 661; Baldwin v. Anderson (Ida.) 18 P.2d 461. A court may correct its own mistakes. Steinmuller v. Liebold (N.D.) 175 N.W. 729. It may do so on its own motion (Harris v. Investment Company, 265 P. 306), and independent of statute. Trust Company v. Stockgrowers Bank (Nev.) 16 P.2d 368 and cases cited supra. No judgment was ever rendered by the judge on the merits of the action. The statutes distinguished rendition from the entry of judgment. Sec. 89-2201, 2212, 4902, 4906; Daley v. Anderson, 7 Wyo. 1; Hahn v. Bank, 25 Wyo. 467. The mistake was not made by the judge, but by the clerk. Williams v. Hayes (Wis.) 32 N.W. 44; City v. Brown (Cal.) 96 P. 281; Dutton Company v. Goss (Cal.) 247 P. 594; Breene v. Booth (Colo.) 40 P. 193. Upon failure to enter judgment, the court may order proper entry made. Willye v. Kent (Idaho) 152 P. 194. Campbell v. Spotts (Mo.) 55 S.W.2d 986; St. Onge v. Blakely (Mont.) 245 P. 532. Pronouncement of judgment is indispensable to lawful entry thereof. Abernathy v. County Treasurer (Okla.) 26 P.2d 939. Independent of statute, court has inherent power to correct clerical errors. Garrison v. Davis (Utah) 54 P.2d 439. Water claims in territorial procedure were filed under Chapter 61, Session Laws 1886. Courts must adhere to the issues made by the pleadings in order to secure a valid decree. Sec. 89-1735, 1736, 1737; 34 C.J. 229; Bank v. Swan, 3 Wyo. 356; Kuhn v. McKay, 7 Wyo. 42. Findings must cover issues in pleadings. Horton v. Driscoll, 13 Wyo. 66; Nichols v. Weston County, 13 Wyo. 1; Hoge v. George, 27 Wyo. 423; State v. District Court, 33 Wyo. 281; Chesney v. Live Stock Company, 34 Wyo. 378; Coal Company v. Black Diamond Coal Co., 39 Wyo. 379; Young v. Lial (Cal.) 17 P.2d 170. Judgment is conclusive on the issues tendered. Company v. Hunt (Cal.) 28 P.2d 386. Judgment must be responsive to the prayer and issues tendered. Nielson v. Garrett (Ida.) 43 P.2d 380. Proof must conform to the pleadings. Torelle v. Templeman (Mont.) 21 P.2d 60; Templeman v. Walker (Okla.) 56 P.2d 737; Winters v. Birch (Okla.) 36 P.2d 907; In re Willard's Estate (Cal.) 73 P. 240. The court may amend its record at any time. School District v. Western Tube Company, 13 Wyo. 304; Odell v. Reynolds, 70 Fed. Rep. 656; Carter v. Trucking Company (Cal.) 47 P.2d 733. Courts have power to make their records speak the truth. Glennon v. Fisher (Ida.) 10 P.2d 294; State v. Lunderholm (Kan.) 135 P. 564. The presumption is that officials perform their duties. Improvement Company v. Bradley, 6 Wyo. 171; Bunten v. Grazing Association, 29 Wyo. 461. The presumption is in favor of legality of action of water commissioners. Irrigation Power Company v. Grant, 44 Wyo. 392; Carstensen v. Brown, 26 Wyo. 356. Where exhibit and pleadings differ, exhibit must control. Hyde v. Althus (Okla.) 218 P. 1081; Company v. Casper, 28 Wyo. 453; David v. Whitehead, 13 Wyo. 204. Movant is not bound by proceedings in the Wyoming Hereford Ranch case. Quealy Land Livestock Company v. George, 45 Wyo. 254; Dresser v. Dresser (Okla.) 22 P.2d 1023. A pleading sworn to is competent evidence against the maker in another suit. Pope v. Allis, 29 L.Ed. 393; County v. Safe Company, 33 L.Ed. 674; Bank v. Duncan (Kan.) 28 L.R.A. (N.S.) 327. The city defaulted in the Hammond Packing Company case. Findings contrary to facts admitted by the pleadings must be disregarded. Loan Society v. Dickinson, 140 P. 265. Plaintiff is bound by allegations in his pleadings. Crane v. Franklin, 147 P. 718; Lake Shore Ry. Co. v. Warren, 3 Wyo. 134. The city is estopped to take advantage of a fraudulent situation arising out of the mistake of the clerk in entering the decree of 1888. The city is bound by its statement of claim to water filed on August 21, 1886, which was its only basis for its claim to water for its pipe line. It claimed only nine cubic feet in that statement. The city proved by the deposition of Whitehead a water right of 12.481 cubic feet. Whitehead in his deposition admitted that he made a mistake as deputy clerk of the court in entering the judgment by overlooking the punctuation in the figures. This mistake is apparent in the statement of Mayor Ed P. Taylor dated March 1, 1921. Cities can be estopped. Rorhbaugh case, 26 Wyo. 514. The Board of Control recognized the city's appropriation as being 12.481 cubic feet per second, and the city never complained about it. The city's rights were administered on that basis. The Hereford Ranch relied thereon. The movant Crowell relied on the record in the engineer's office. The city is bound by equitable estoppel. 21 C.J. 1113. Waiver and estoppel are considered in the case of Halleck v. Bresnahen, 3 Wyo. 73. The city is estopped from claiming more than 12.481. Finley v. Pew, 28 Wyo. 342; Vogel v. Shaw, 42 Wyo. 333. Movant had not been prejudiced in his rights by wrongful acts of the city officials. State v. Court, 38 Wyo. 427; Culver v. Graham, 3 Wyo. 211. Waiver is the voluntary relinquishment of a known right. Bank v. Company, 7 F. Supp. 858; Helvering v. Company, 70 F.2d 761; Company v. Yates, 54 F.2d 1062. Parties must take the consequences of a position they assume, and are estopped to deny the reality of the state of things they have made to appear to exist. Mann v. Anderson, 20 F. Supp. 643. Laches do not exist in this case. Laches cannot be imputed to one justifiably ignorant of the facts creating his cause of action. Harney v. Montgomery, 29 Wyo. 362; Midwest Refining Company v. George, 44 Wyo. 25 ; County v. Weston, 43 Wyo. 526. Laches cannot exist until party has legal knowledge of the facts affecting his rights. Ry. Company v. May, 2 F.2d 680. Laches are not mere matter of time such as limitation. Clarke v. Boysen, 39 F.2d 800. Laches are held to be an equitable doctrine. Spiller v. R. Co., 14 F.2d 284; Bank v. Company, 126 Fed. 593. No rights of third persons are involved in this motion. Hudson Company v. Hudson (Ark.) 272 S.W. 836. If record failed to speak the truth, the court at any time may make an order correcting the same. State v. Linderholm (Kan.) 135 P. 564. No time is fixed within which an amendment to a judgment may be made, but it must be reasonable. Murphy v. Stewart, 11 L.Ed. 262; Gagnon v. United States, 48 L.Ed. 745; 34 C.J. 229. Movant is not required to take sewage water in lieu of its rightful priority. Tootle v. Clifton, 22 Ohio Rep. 247. Judge Maginnis never read the decrees to the knowledge of Whitehead, and did not always sign orders. Courts cannot be expected to read and scrutinize journal entries of judgments presented to them. In Hawks v. McCormack (Okla.) 71 P.2d 724, the admissibility of ancient documents is not disputed by counsel for the city. Jones on Evidence (2d Ed.) Sec. 531. The court erred in sustaining an objection to movant's exhibit No. 25. The city never claimed anything in writing under the decree of 1888, as giving more than 12.481, until the city made its claim to 12,481 cubic feet in its answer to the motion herein. Courts are set up to do useful, not useless things. In re application of Lindgren (N.Y.) 133 N.E. 353. Courts do not try moot questions or require doing of useless things. Chimney Company v. Riley (N.D.) 167 N.W. 753. Judgment without judicial determination of the facts is but the arbitrary edict of the court and is wanting in due process of law. Hultberg v. Anderson (Ill.) 97 N.E. 216. If the court lacks jurisdiction to render the particular judgment in the particular case, such judgment is subject to collateral attack. People v. Burke, 212 P. 837. The City of Cheyenne aids and abets in this by now contending for a priority of 12,481 cubic feet, when during the years from 1888 down to the time of the filing of answer and resistance herein, it built up a claim of 12.481. We respectfully urge that the decree of 1888 be corrected, that it may speak the truth.
For the respondent, there was a brief by A.D. Walton and Harry B. Henderson, Jr. of Cheyenne, and oral argument by Mr. Walton.
This is an appeal from an order denying a motion by H.P. Crowell for the modification of a court decree, adjudicating water rights of the City of Cheyenne from Crow Creek, dated April 18, 1888. The record discloses that said decree is final and that this motion was filed on the 16th day of March 1934, forty-five years, ten months and twenty-six days after the entry of said decree. The motion was based upon the theory that the decree, as entered upon the journal of the trial court, was not the decree pronounced by the court adjudicating the city a water right of 12.481 cubic feet of water per second of time, but that the clerk erroneously entered the decree for 12,481 cubic feet per second of time. It is therefore contended that the decree is void and that the clerk's error was a ministerial act that may be assailed at any time. The parties submitted their evidence, much of which relates to transactions that have occurred since the decree was entered in 1888. This identical question was presented in an action brought by one Thomas D. Holt on January 8, 1912 against the City of Cheyenne, which said actions resulted in a judgment and decree in favor of the city, and proceedings in error were instituted in the Supreme Court to review said decree. The case was reported in Volume 22, Wyoming Reports, p. 212, and in 137 Pacific, page 876. This court affirmed the decree of the court below. On the 15th day of May 1922, Wyoming Hereford Ranch, a corporation, predecessor in interest of appellant herein, began an action in the District Court of Laramie County against Hammond Packing Company of Cheyenne, wherein said plaintiff sought a temporary injunction based upon its petition and supporting affidavit filed by one of its attorneys, then an officer of said ranch corporation. The record in that case shows that appellant's predecessors in interest caused a verified statement to be made in its petition and affidavit that the city of Cheyenne had been adjudicated a water right for 12,481 cubic feet of water per second of time of the waters of said Crow Creek, for the domestic use of its inhabitants and for municipal purposes. Said record was introduced in evidence by respondent in the present case. The Hereford Ranch case was reviewed by this court in 33 Wyo. 14. We have read appellant's brief of 215 pages and most of the 206 cases cited therein, but we will not burden the court with a discussion of all of the points of law urged by appellant. We will discuss the points of law, which we believe have a bearing upon this controversy. It is our contention that no clerical error was made by the clerk in entering the court decree of April 18, 1888, and that appellant's evidence fails to establish any such error. This court has held on numerous occasions that it will not review the questions as to whether the findings of the trial court are against the law and evidence in the absence of a bill of exceptions. Mitter v. Black Diamond Coal Company, 27 Wyo. 72; Wright v. Walker, 31 Wyo. 233; Foster v. Gas Company, 36 Wyo. 436. The court may have permitted an amendment of the pleadings, or the pleadings may have been treated as amended. Reynolds v. Stockton, 140 U.S. 254. The proceedings brought by appellant are barred by statute. Sections 2701 and 2710, R.S. 1887, now appearing as Sections 89-2301, 89-2310, R.S. 1931 relate to the correction of judgment. Holt v. City of Cheyenne, 22 Wyo. 212; Corry v. Campbell, 34 O.S. 204. The appellant and his predecessors in interest have been guilty of laches. 21 C.J. 211, 215, 217, 218, 219, also pages 193, 711 and 715. See also McMullen v. Lewis, 32 F.2d 481; Hays v. Port of Seattle, 251 U.S. 233; Foster v. Mansfield R. Co., 146 U.S. 88; Life Insurance Company v. Rowland, 22 F.2d 126; Wyant v. Brennan, 85 Fed. 2d 920; Kelley v. Eidam, 32 Wyo. 271; Clarke v. Lumber Company, 31 Wyo. 205. During the forty-five years, ten months and twenty-six days that have passed since the entry of said decree, all of the persons connected with the filing of the claims of the City of Cheyenne for a water right, with the exception of the city attorney, are dead, and the court cannot at this time ascertain what evidence was taken in said matter. We have already noted that appellant's predecessor in interest, Wyoming Hereford Ranch, in an action brought in 1922, declared in its petition and supporting affidavits that the City of Cheyenne had been awarded a decree for a water right of 12,481 cubic feet per second of time from the waters of Crow Creek, for the use of its inhabitants and for municipal purposes. This proves conclusively that appellant had full knowledge of the provisions of said decree about twelve years before the filing of the motion here under consideration. Incidentally the record shows that the distribution system constructed by the City of Cheyenne cost $937,000. The decree of April 18, 1888 is not void, irrespective of appellant's argument that the city was awarded more than was claimed in its pleadings. Sec. 89-1063, R.S. 1931; Black on Judgments, Sec. 242; Reynolds v. Stockton, 140 U.S. 254; Holt v. City of Cheyenne, supra; Sache v. Gillette (Minn.) 112 N.W. 386. The decree was responsive to the issues tendered by the pleadings. 33 C.J. 1166. The City of Cheyenne is not estopped from claiming under said decree. The City of Cheyenne has no control over the acts of the State Board of Control and said Board has never been authorized to speak for the City in the matter of tabulations of its water rights. The City of Cheyenne owned and operated its water system in its governmental capacity as distinguished from its private capacity, and cannot be estopped in this matter by the acts of its officers or agents. 21 C.J. § 216; Holt v. City of Cheyenne, supra; 21 C.J. § 190; County v. Lawrence (Kans.) 171 P. 610; Town of San Leandro v. Breton (Cal.) 13 P. 405. Appellant has not been deprived of his property without due process of law. The decree was responsive to the issues made by the pleadings as defined and illustrated in the case of Reynolds v. Stockton, supra, and in § 242 of Black on Judgments. The application of the doctrine of ancient documents proves nothing in this case. The law on that subject does not furnish the identity of the writer of the documents in question or furnish proof as to how long they may have been in the files of the case. It is respectfully submitted that the order of the District Court should be affirmed.
This case is here upon a direct appeal by H.P. Crowell, doing business as the Wyoming Hereford Ranch, from an order of the District Court overruling and denying his motion to modify and correct a decree of the District Court of Laramie County made and entered on the 18th day of April, 1888, adjudicating certain water rights on the stream named "Crow Creek," affecting his property and the rights of the City of Cheyenne, the respondent.
On the 10th day of April, 1887, the Beaver Dam Ditch Company instituted proceeding in the district court of Laramie County praying for an adjudication of water rights on Crow Creek and its tributaries; all those claiming water rights on Crow Creek, including the City of Cheyenne, appearing in the proceeding. The water rights of many people were involved. The City of Cheyenne filed its answer and cross-petition on June 15, 1887, setting up four causes of action, claiming of the waters of Crow Creek: (1) Nine cubic feet per second of time through the city ditch; (2) 3.481 cubic feet per second of time through "City of Cheyenne pipe line"; (3) a water right diverted through the "City Ditch" and City of Cheyenne pipe line as set forth in the first and second causes of action; and (4) another water right not involved here.
The court journal discloses that the then District Judge, W.L. Maginnis, had various hearings in the proceeding which were adjourned from time to time and evidence was taken at the different sittings of the Court, until finally a decree was entered on April 18, 1888, adjudicating the rights of the parties, including the water rights of the City of Cheyenne and this appellant.
It is apparent that considerable time was consumed by the court in the consideration of these proceedings, both as to preliminary matters and as to the taking of testimony before the decree of the court was entered. This came about, no doubt, because some forty or fifty water rights were involved. It is difficult at this date to ascertain just how much evidence was taken and how much was considered by the court between the dates of April 10th, 1887 and April 18th, 1888, as there is no properly authenticated transcript of the proceedings, and, consequently, much is left to conjecture.
This court decree, which appellant seeks by his motion to modify, contains two provisions with respect to the water rights of the City of Cheyenne, the first:
"The City of Cheyenne is entitled to have twelve-thousand four-hundred and eighty-one (12481) cubic feet of water per second of time for the use of its inhabitants of the waters of Crow Creek proper." and the second:
"The Court finds that the City of Cheyenne, as against each and every and all appropriators or other persons, is entitled by priority of right for the use of its inhabitants to twelve-thousand four-hundred and eighty-one cubic feet of water per second of time of the waters of Crow Creek; and the Court finds that the said City of Cheyenne is entitled to an injunction against each and every appropriator of water from Crow Creek or any of its tributaries enjoining him and them to permit sufficient water to flow down to the city ditch and City of Cheyenne pipe line to satisfy the said prior right of said City and enjoining him and them from diverting water from said Crow Creek or either of its tributaries in such a manner or to such an extent as will in any wise interfere with the said prior right of the said City of Cheyenne."
To modify these two provisions of the decree so that that which is written "Twelve-thousand four-hundred and eighty-one cubic feet of water per second of time" shall read, "twelve decimal point four hundred eighty-one thousandths cubic feet of water per second of time," is the object of appellant's motion. To do this would not only affect the rights of the appellant and respondent herein, but would also affect the appropriators of all other water rights on this stream.
Appellant filed his motion on the 16th day of March, 1934, claiming that the decree of the court as entered on the journal decreeing 12,481 cubic feet of water per second of time was not in fact the decree rendered by the court, but was entered by mistake due to a clerical error of the clerk in transcribing and entering the decree of record in the court journal, so that the respondent, by reason of the error, instead of receiving 12.481 cubic feet by the decree, received by the decree as entered one thousand times as much water as was intended.
The motion of appellant is supported by the affidavit of Robert W. Lazear and there is attached to it many other instruments or papers. There is an answer and resistance to the motion to modify, by the city, supported by affidavits, papers and records, and oral testimony was taken at a hearing on behalf of both appellant and respondent on the 1st of February, 1937, in the court below. We will not attempt to set out all of these matters in detail because they are so voluminous. We have considered them, one and all, and will be content to refer to some of them now and others later as we discuss the questions of law presented.
Mr. Lazear sets forth in his affidavit that he knew Henry Altman, and Dan McUlvan, who owned the ranch having certain water rights at the time of the 1888 decree of adjudication and which was sold in 1917 to the Hereford Corporation of Wyoming, and by it sold in 1920 to the Wyoming Hereford Ranch, and which was sold later, in 1923, to H.P. Crowell, the appellant; that with respect to the terms of the decree in question, a mistake was made by the clerk in entering the same upon the court journal, and that the persons in charge of the Hereford Ranch received and became familiar with the tabulations of the Board of Control for various years, which computations gave as the water right of the City of Cheyenne for the years 1923, 1924 and 1925, 12.48 cubic feet per second of time; that $225,000.00 was expended on improvements at different times; that H.P. Crowell invested his money in this ranch relying on the tabulations of the Board of Control showing the City of Cheyenne was entitled to 12.48 second feet of water; that appellant learned for the first time in the year 1933 (at which time the City had a plan approved for pumping water) of the court decree of 1888, — a certified copy of the decree, giving the City 12.481 cubic feet, being then in the hands of the State Engineer and Board of Control; and that affiant then learned that a mistake was made in transcribing the decree from the original.
Attached to the motion are copies of the affidavit of Mayor Reel of Cheyenne in 1886; statements of claim to water rights by the Mayor; copy of decree to be modified; deposition of J.R. Whitehead, former deputy clerk of court, taken April 23, 1913, in the case of Holt v. City of Cheyenne, 22 Wyo. 212; and testimony of William G. Provines, John K. Jeffrey, Luke Murrin and C.W. Riner, taken before Judge Maginnis.
The City of Cheyenne filed an answer and resistance to the motion to modify, setting up four defenses: (1) That the motion, records, etc. do not state facts sufficient to entitle the Wyoming Hereford Ranch to the relief prayed for, or any relief; (2) denying a clerical error was made by the clerk in entering the decree and denying that the decree entered on the journal was not the decree pronounced by the court, Judge Maginnis presiding; (3) that because 45 years, 10 months and 26 days expired since the entry of the decree, by which appellant had knowledge, that such proceedings to modify the decree are barred by Section 89-2310, Wyoming Revised Statutes, 1931, which has been the law since 1886; (4) that the predecessors in interest of the appellant, Messrs. Altman and McUlvan, were parties to the original adjudication proceedings and knew of the decree awarding 12,481 cubic feet of water, as did the Wyoming Hereford Association, and that the Wyoming Hereford Ranch and H.P. Crowell, as successors in interest, knew of the contents of the decree at all times since 1920; that the City of Cheyenne, relying on the terms of the decree, expended $4,000,000.00 in improvements upon its water system; that it has grown in population, and through an arrangement with the United States, provides water for the military reservation known as Fort Warren, and has at times used as much as 68 1/2 cubic feet of water from Crow Creek and its tributaries, and there are times when the direct flow of Crow Creek is not sufficient for the city's purpose; that a storm sewer system has been constructed by which flood waters and sewage from the city are emptied into Crow Creek above the point of diversion from which appellant and his predecessors in interest take water to irrigate their ranch, making available about 8 cubic feet per second of time of sewage, which is more water available to appellant at the point of diversion for the ranch than it would otherwise have even if the city were not to divert any water from Crow Creek; that no steps were taken by appellant to correct, vacate, or modify this decree until March 16, 1934, and that before that time, Judge Maginnis, James R. Whitehead, George A. Draper — the mayor at the time the decree was entered, William G. Provines — city engineer, J.K. Jeffrey — county clerk, and C.W. Riner, whose evidence is attached to the motion, have died, and it is therefore impossible to ascertain what evidence was before the court upon which the decree is based; and that appellant is guilty of laches. Attached to the answer and resistance is the affidavit of T.H. Baldwin, an engineer for the City, reciting matters in connection with water supply and improvements of the city, and that in May, 1922, the Wyoming Hereford Ranch began an action in District Court against the Hammond Packing Company and the City of Cheyenne ( 33 Wyo. 14) and in its petition, set forth, among other things:
"* * * It was adjudicated and determined by said Court that the defendant City had and was entitled to a first, prior and superior right to twelve-thousand four-hundred and eighty-one cubic feet per second of time of the water of said Crow Creek for the domestic use of its inhabitants and for municipal purposes."
And again, the petition states:
"* * * That by said decree said Court then and there duly determined and adjudicated that the defendant City had 12,481 cubic feet per second of time of the waters of said Crow Creek for the domestic use of its inhabitants and for municipal purposes."
That in said suit an affidavit for a temporary injunction was made by Vice-President and Treasurer of the Wyoming Hereford Ranch, who is also one of the attorneys in this suit, in which it is set forth:
"That for over thirty-five years the superior right and title of the plaintiff-corporation to that quantity of the waters of Crow Creek referred to in its petition has been recognized and conceded by the whole world and particularly by the said Hammond Packing Company and its predecessors in interest; that during said period of thirty-five years the right of the City of Cheyenne to that quantity of the water of Crow Creek referred to in plaintiff's petition has been by said plaintiff and said defendant and the whole world recognized and conceded."
There are attached to the answer and resistance of the City other papers, records and affidavits, such as copies of pleadings and affidavits in the Hammond Packing Company case, affidavits of Jay K. Stoddard, City Clerk, P.S. Cook and Henry G. Watson.
Are these proceedings to correct the decree of 1888 barred by our Statute? Sec. 89-2301 provides:
"MODIFICATION OF JUDGMENT AFTER TERM. A district court may vacate or modify its own judgment or order, after the term at which the same was made. * * *
"3. For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order. * * *."
"LIMITATION ON TIME FOR PROCEEDING. Proceedings to vacate or modify a judgment or order for the causes mentioned in sub-divisions four, five, and seven of Section 89-2301, must be commenced within two years after the judgment was rendered, or order made, unless the party entitled thereto is an infant or a person of unsound mind, and in cases of such disability, within two years after the removal thereof; Proceedings for the causes mentioned in subdivisions three and six of the same Section shall be commenced within three years, and in sub-division nine, within two years after the defendant has notice of the judgment; and under sub-division ten of said Section, the proceedings may be commenced after the guilty party is convicted, if the conviction be within two years from the rendition of the judgment."
These provisions have been in effect since their enactment by the Ninth Legislative Assembly in 1886. By these plain provisions of law, the proceedings are barred.
It is argued that the court has the inherent power to correct clerical errors of the clerk entering the judgment. It may be that under a different set of circumstances a court would have such power, but certainly under the facts in this case, no such power exists. Granting for the sake of argument that 12,481 cubic feet of water per second is an amount so enormous as to suggest the probability of a clerical error in entering the judgment, still, after the judgment has been of record 45 years, we adhere to this court's statement, made in Holt v. City of Cheyenne, 22 Wyo. 228:
"The adjudication here is analogous to a judgment or verdict which is excessive in amount where a party through negligence has failed to take steps within the statutory period allowed to correct or modify such judgment. In such case the negligent party has lost his remedy." See also Corry v. Campbell, 34 O.S. 204 (Ohio).
Even though the statutory provision referred to may in some cases seem harsh, still the equities in the instant case do not warrant us in modifying this decree. It does not satisfactorily appear that a clerical error was made by the clerk. To speculate on what Judge Maginnis had in mind these many years after the entry of this decree takes us altogether too far into the realm of conjecture. All of the important witnesses are dead, including the trial judge, who, according to the record, spent considerable time in trying the original adjudication proceedings, and the fact remains that he signed a decree in which it is written in two different places that the City of Cheyenne is awarded "twelve-thousand four-hundred and eighty-one" cubic feet of water.
The argument is made that this is an enormous amount of water and counsel would have us believe that because the amount is great, then without question there must be a mistake. We think not. There is no authentic transcript of the evidence and nothing to show all of the happenings in the years 1887 and 1888 when the court was conducting the proceedings. It does appear in the record that at some of the hearings, J. Wesley Hammond, W.L. Kuykendall, Mowry A. Arnold, Charles W. Riner recalled, Joseph M. Carey and W.D. Pease testified, but the record is silent on the nature or even the substance of their testimony. Perhaps their evidence was to the effect that 12.481 cubic feet of water was insufficient for the needs of the growing, young city of Cheyenne and for its future use. Perhaps in their enthusiasm, they envisioned Cheyenne as another Chicago and suggested that 12,481 cubic feet would be none too much for future needs. If we are to guess and speculate on the proposition that a mistake was made as to the amount because of its enormity, it would seem just as fair to speculate on what testimony was submitted to the trial judge that caused him to sign a decree with the figures "twelve-thousand four-hundred and eighty-one" written out in words in the decree. It may be that upon such testimony the City asked to amend its applications and the request was granted and for some reason the matter of placing the amendment of record was overlooked. That, of course, is mere conjecture and speculation.
We make the point that to modify a decree now more than fifty years old, the proof should be clear, cogent and convincing, and nothing should be left to guess work, speculation or conjecture.
In any event the predecessors in interest of appellant were present at the trial when the water rights in question were adjudicated. As was stated in Reynolds v. Stockton, 140 U.S. 254, 35 L.Ed. 464:
"Nor are we concerned with the question as to the rule which obtains in a case in which, while the matter determined was not, in fact, put in issue by the pleadings, it is apparent from the record that the defeated party was present at the trial and actually litigated that matter. In such a case the proposition so often affirmed, that that should be considered as done which ought to have been done, may have weight, and the amendment which ought to have been made to conform the pleadings to the evidence may be treated as having been made."
Then, too, we believe that appellant has waited an unreasonable length of time in bringing these proceedings to correct the decree. "Equity aids the vigilant, not those who slumber on their rights." This maxim applies to stale demands. See 21 C.J. 210; Hays v. Port of Seattle, 251 U.S. 233; Holt v. City of Cheyenne, supra, and in Kelley v. Eidam, 32 Wyo. 271. This court in discussing laches said:
"A party seeking relief against a judgment must show diligence."
And again, in Clarke v. Shoshoni Lumber Co., 31 Wyo. 205, we find this statement of the law:
"Nor do we think there is an impelling equity demanding the vacation of the original judgment. There should be an end to litigation sometime. The original action here was commenced in 1911. Judgment was not taken until nearly five years thereafter. The motion to vacate was not filed until 1918, more than eight years after the original action was commenced. Final judgment was not entered on the motion to vacate until 1921, ten years after the commencement of the original action. It seems strange that the parties should have paid so little attention to their interests and still be entitled to equitable consideration at the hands of the Court."
It also appears that the predecessors in interest of the appellant in the case of Wyoming Hereford Ranch v. Hammond Packing Co., and the City of Cheyenne, 33 Wyo. 14, set forth in the pleadings and affidavit for a temporary injunction that the City of Cheyenne "was entitled to a first and superior right to twelve-thousand four-hundred and eighty-one cubic feet per second of time of the water of said Crow Creek for the domestic use of its inhabitants and for municipal purposes." This was done in 1922. Certainly appellant had knowledge of the 1888 decree at that time. Having stood by all of these years, permitting the City to expend some four million dollars in building additions and improvements to its water system, we are convinced that the appellant is not only guilty of laches, but is now estopped from attacking the decree.
There is another reason why the 1888 decree should not be modified and disturbed. The several decisions of this court, establishing water rights in the municipality of the City of Cheyenne, now constitute a rule of property. An analysis of Holt v. City of Cheyenne, 22 Wyo. 212; Edwards v. City of Cheyenne, 19 Wyo. 110; Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, and VanTassel v. City of Cheyenne, 49 Wyo. 333, as applied to the 1888 decree, clearly establishes this principle.
It is stated in 15 C.J. 947:
"Where judicial decisions may fairly be presumed to have entered into the business transactions of a country and to have been acted upon as a rule of contracts and property, it is the duty of the court, on the principle of stare decisis, to adhere to such decisions without regard to how it might be inclined to decide if the question were new. This rule obtains, although the court may be of the belief that such decisions are founded upon an erroneous principle and are not sound, for when parties have acted upon such decisions as settled law and rights have been vested thereunder, their inherent correctness or incorrectness in the abstract are of less importance than that rule of property so established should be constant and invariable."
This principle that judgments of the Supreme Court, establishing rights of a municipality in the waters of a stream, constitutes a rule of property was announced by this court in VanTassel v. City of Cheyenne, et al., 49 Wyo. 333, where it was said:
"However the foregoing may be, the Holt and Edwards cases furnish not only the ordinary precedent, which would, in any event, be generally followed, but they go further and establish, we think, a rule of property, at least in regard to the appropriations of water from Crow Creek and its tributaries. It was held, for instance, that decisions defining the rights of riparian proprietors are a rule of property and will not be overruled. Miller v. Canal etc. Co., 169 Cal. 415, 147 P. 567. Some of the rules established in the Edwards case, and the rules laid down in the Holt case, relate to each and every claimant of a water right in the Crow Creek watershed west of the City of Cheyenne. And it is well known that decisions making a rule of property will not be overruled except under the gravest circumstances. 15 C.J. 947-949. So we think that we would not be warranted in overruling the Holt case and the Edwards case, interpreted as above mentioned. They were rendered more than twenty years ago, and the city has expended a considerable amount of money in reliance thereon. If they had been adverse to the city, it is not improbable that it could have exercised the power of eminent domain (Const., Art. 13, Sec. 5), condemning prior rights in times of plenty of water, and at a sum reasonable in amount, but possibly prohibitive in times of scarcity."
In order to insure an orderly administration of justice with respect to human as well as property rights, the rules of human conduct must be announced and enforced with a semblance of permanency, as near as may be, so that the people may place reliance in them. So it is that judgments — the solemn pronouncements of the court — are not readily and without just cause easily set aside, it being essential that people know what rights they have and what property is theirs. This lends itself to stability and security. It is these things which all of us desire and would like very much to attain.
With respect to the contention that appellant has been deprived of his property without due process, because of the refusal of the lower court to modify and correct the April 18th, 1888, decree, we are unable to agree. Due process has been accorded the appellant since the inception of the proceedings in 1887. The judgment of the lower court will be affirmed.
Affirmed.
RINER, Ch. J., and KIMBALL, J., concur.