Opinion
No. 1975
July 21, 1936
MANDAMUS — WATER RIGHTS — ABANDONMENT — BOARD OF CONTROL — LEGAL REMEDY — DISMISSAL.
1. Mandamus proceeding to compel state engineer to recognize as valid water rights in question in abandonment proceeding wherein relator was contestee on ground that abandonment proceeding was rendered abortive by board's failure to file copy of order declaring rights abandoned within sixty days after entry thereof held dismissible where order of district court dismissing abandonment proceeding had been reversed and abandonment proceeding was before district court for review. 2. Contestee in water right abandonment proceeding desiring to assert right to divert water pending review of order of board of control declaring abandonment of rights should assert such right in district court by appropriate action rather than in Supreme Court in mandamus proceeding to compel state engineer to recognize right as valid.
ORIGINAL mandamus proceeding by the State, on the relation of the Lincoln Land Company, against Edwin W. Burritt, state engineer of the State of Wyoming.
John C. Pickett of Cheyenne and Mothersead York of Scottsbluff, Nebraska, for relator.
The demurrers of the defendant and Horse Creek Conservation District admit that plaintiff is the owner of the adjudicated appropriation of water described in this petition; that water is available under said appropriation, and that demand has been made upon the State Engineer for said water which has been refused. Plaintiff urges the following points and authorities in support of his position: 1. The Supreme Court of Wyoming under the Constitution of Wyoming has original jurisdiction in mandamus as to all State Officers. Const. Art. 5, Section 3; State v. Burdick, 3 Wyo. 588; State v. Barber, 4 Wyo. 409; State v. Brooks, 14 Wyo. 393. 2. The State Engineer of Wyoming is a constitutional State Officer and has "general supervision of the water of the State and of the officers connected with its distribution." Const. of Wyoming, Article 8, Sec. 5; State v. True, 26 Wyo. 314; Farm Investment Company v. Carpenter, 9 Wyo. 110. 3. Section 5, Article 8, Const. of Wyoming, conferring upon the State Engineer the control of the distribution of the water of the State is self-executing and requires no legislation and this provision fixing the powers of the State Engineer cannot be diminished or encumbered by legislature enactment. State v. Romero, (N.M.) 124 P. 649; 12 C.J. 729, 6 R.C. 59; Campbell v. Hunt, 162 P. 882. 4. The right of appeal from the action of an administrative or executive officer does not defeat the right to mandamus. North Alabama Development Company v. Orman, 71 Fed. 764; Sullivan v. Superior Court, (Calif.) 195 P. 1061; Fenton v. Board, (Ida.) 119 P. 41; Perkins v. District, (Iowa) 9 N.W. 356; Duer v. Dashrell, (Md.) 47 A. 1040; Leahy v. Command, (Mich.) 198 N.W. 432; State v. District Court, (Mont.) 96 P. 337; State v. Maine, (Wash.) 119 P. 844; State v. Johnson, (Wis.) 83 N.W. 320. 5. Section 122-304 Annot. Statutes of Wyoming, 1931, is in no way applicable to the case at bar and even if applicable the remedy therein provided is not exclusive. 6. The Division Superintendents and the Water Commissioners are under the direct general supervision of the State Engineer and although under certain circumstances appeal is allowed from their action and decision to higher authority, remedy by appeal is not exclusive. Ryan v. Tutty, (Wyo.) 78 P. 661. 7. Neither the State Engineer, District Superintendent nor the Water Commissioner has any authority to determine whether or not a water right has been forfeited or abandoned or to prevent the appropriator from taking the full quantity of water under an adjudication. Parshal, State Engineer v. Cowper, (Wyo.) 143 P. 302.
Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne, for the defendant and James A. Greenwood of Cheyenne for The Horse Creek Conservation District.
The constitutional and statutory provisions enacted pursuant thereto have established a definite system for the protection and administration of appropriations of water for beneficial uses. Const. Article VIII. The duties and powers of the State Engineer in so far as relevant to the question before this court are defined by statute. Sections 109-904-907, R.S. 1931. A State Board of Control is provided for, of which the State Engineer is the President. Sections 121-101, 122-116, 122-104, 122-205, R.S. 1931. The State is divided into four water divisions, for each of which a division superintendent is provided. Sections 122-201 to 208, R.S. 1931. In each of said water divisions, several water commissioners are provided for to act in specified districts. Sections 122-302-4-8, R.S. 1931. When the allegations of plaintiff's petition are considered in connection with the above outline of the constitution and statutory provisions, it is apparent that the grounds assigned in the demurrers are well taken and they should be sustained. The powers and duties of water commissioners are reviewed in Hamp v. State, 19 Wyo. 377. State control of public water through its administrative officers is fully discussed in the case of Farm Investment Company v. Carpenter, 9 Wyo. 110 and also in Ryan v. Tutty, 13 Wyo. 122. If relator seeks now to determine finally a substantial question, surely a court would not do it in such a summary proceeding, but would require that the matter come regularly before it for review, after a trial in a court equipped to hear testimony regarding the substantial fact question of whether, as a matter of performance of duty over a period of time more than momentary, the official whose authority it was to control relator's right was in fact without cause, discriminating against relator to his injury and damage, which is not disclosed to have occurred under the petition as stated. There is no allegation of any damage having been sustained or threat that such damage will be sustained, and considering that notwithstanding the fact that relator may have a water right, it has no arbitrary right based thereon to demand, in accordance with whim or fancy, the diversion of water; also that it has no grounds for the relief asked here. A demand to take water to irrigate 4500 acres of land should not be determined in the absence of a full showing of facts. The demurrers of the defendant and the Horse Creek Conservation District should be sustained and relator's petition dismissed.
John C. Pickett and Mothersead York — on motion to strike answers.
Horse Creek Conservation District is not a party and cannot broaden the scope of the inquiry by attempting to answer in this action. Wright v. Jordan, 221 P. 915. It is without authority to make return to the alternative writ. 39 C.J. 884. An order of abandonment of a water right is not valid without being reviewed by a court. Van Tassel Company v. Cheyenne, (Wyo.) 54 P.2d 906. If respondent had presumptive knowledge of the facts, he cannot allege ignorance thereof. 38 C.J. 890. A frivolous return to an alternative writ should be quashed on motion and a preemptory writ awarded. 38 C.J. 886, 889, 890. Denial on information and belief cannot be employed as to facts which by reason of being on the public records or otherwise are readily accessible to the defendant. Birch v. Monroe, (Calif.) 234 P. 125, 49 C.J. 266, 18 R.C.L. 345; Samson v. Mercer, (Texas) 5 S.W. 62. Where facts are shown by uncontroverted affidavits the court should retain jurisdiction. State v. Christmas, (Wyo.) 44 P.2d 905; Appel v. State, 9 Wyo. 187. The return is insufficient and should be stricken. The alternative writ should be made preemptory.
This is an action commenced in this court by the State on the relation of Lincoln Land Company, plaintiff, against the State Engineer, defendant, for mandamus to require the defendant to recognize as valid the water right in question in the abandonment proceeding considered in the case of Horse Creek Conservation District, contestant-appellant, v. Lincoln Land Company, contestee-respondent, No. 1983, decided this day. After the district court had dismissed the abandonment proceeding, and before the contestant's appeal from the order of dismissal had been perfected, the contestee in that proceeding caused the bringing of this mandamus action in which it is alleged that defendant unlawfully denies the existence of relator's water right and refuses to permit the diversion of water thereunder. In setting forth "the circumstances which, in the opinion of the applicant, render it necessary or proper that the writ should issue originally from this court," (see Rule 28, 42 Wyo. 537) it is alleged that "the case involves no disputed question of fact whatsoever."
Defendant has filed an answer in which he alleges, among other things, that relator has no facilities for irrigating the lands subject to irrigation under said water right, and that a delivery of water thereunder would constitute useless and unlawful waste.
Horse Creek Conservation District, named in the petition as a party whose interest will be affected by the decision of the case (see Rule 28, 42 Wyo. 538), has filed an answer of several pages raising issues which it seems, as alleged, "will require the taking of a substantial volume of evidence."
Plaintiff in reply alleges that the board of control, on April 20, 1934, made an order declaring the abandonment of relator's water right; that the board failed to file a certified copy of its order in the district court within 60 days; that the district court dismissed the proceeding; that thereafter defendant, in denying the validity of said water right, gave as his reason the order of April 20, 1934, and that defendant is estopped from setting up any other ground for refusing to recognize the right.
The action for mandamus will be dismissed. It was evidently brought on the theory that the abandonment proceeding, considered in case No. 1983, was rendered abortive by the board's failure to file in court a copy of its order within 60 days. That this is not so has been decided in the appeal in that case. The board's order declaring the abandonment of the right in question is before the district court for review in the statutory proceeding for that purpose. If the relator desires to assert a right to divert water pending the review of the order of abandonment, he can do so in the district court which is equipped better than this court for the trial of issues of fact. See State ex rel. Walton v. Christmas, 48 Wyo. 239, 44 P.2d 905.
Dismissed.
BLUME and RINER, J.J., concur.