Opinion
No. 2031
February 23, 1938
APPEAL AND ERROR — IRRIGATION DISTRICTS — EXCLUSION OF LANDS NOT BENEFITED.
1. In reviewing proceedings for organization of irrigation district, each case must be controlled by its own facts and circumstances. 2. In proceeding for organization of irrigation district, evidence sustained finding that lands, owned by contestant, which had territorial water rights should be excluded from district on ground that they would not be benefited by proposed project.
APPEAL from the District Court of Hot Springs County; P.W. METZ, Judge.
For the contestee and appellant, there was a brief by C.W. Axtell of Thermopolis and E.J. Goppert of Cody, and oral argument by Mr. Goppert.
The trial court erred in finding that certain lands of Padlock Ranch, Inc., should be excluded from the district, also in finding that lands of a certain corporation, with territorial rights, could not be benefited by the proposed supplemental water supply. The trial court also erred in finding that the lands of said corporation should be excluded from the boundaries of the district. Appellant contends that all lands with a common source of water supply should be included in the boundaries of a newly created irrigation district. 67 C.J. 1305; Irrigation District v. Bradley, 17 S.Ct. 56, 164 U.S. 112; In re Hartford Irrigation District, (Ore.) 216 P. 1020; Sec. 122-702, R.S. Territorial water right lands of respondent would be benefited by the proposed project, and should be included therein. The question of benefits to lands to be included should not be determined with reference to the use to which the land is being put at the time the district is organized. 15 R.C.L. 496; In re Madera Irrigation District, (Cal.) 28 P. 272; Irrigation District v. Bradley, supra; R. Co. v. District, (Idaho) 102 P. 904; San Diego v. Irrigation District, (Cal.) 41 P. 291. The hearing for the creation of an irrigation district is not the proper time to determine the amount of benefits to lands. Sec. 122-714, R.S. et seq. The burden of proving no benefits should be on the landowner. Hand v. Irrigation District, (Cal.) 276 P. 137; San Joaquin Corporation v. Board, (Cal.) 8 P.2d 1051 In re Gallatin Irrigation District, (Mont.) 140 P. 92.
For the respondent, there was a brief and oral arguments by Ponsford and Pender of Denver, Colorado, and William E. Mullen of Cheyenne, Wyoming.
Appellant contends that all lands with a common source of water supply should be included in irrigation districts. The authorities cited do not support its contention. Said authorities, in fact, hold that the benefit to the land must be substantial and that is the general rule. In re Crow Irrigation District, (Mont.) 207 P. 121. The question of benefits may be considered prior to the report of the commissioners. Sec. 122-172, R.S. and 122-709, R.S. The decree appealed from formerly, so holds. Findings of a trial court supported by evidence will not be reversed. Sims v. Southern Surety Co., 38 Wyo. 165; Columbia Copper Mining Co. v. Smelter Co., (Wyo.) 79 P. 385. Water rights may be supplied at a cost too great to justify the project, or the lands might already have adequate irrigation, as in the case at bar, so that in any such case the project would not be feasible or beneficial. The project may result in additional water supply for some lands in the district, but it is certain an abundant supply of bonds, assessments, liens and sales for non-payment will follow. The burden of proof rested upon the petitioners to show the feasibility of the project as to the lands in question.
As noted in case No. 2032, In the Matter of the Organization of Washakie Needles Irrigation District, The Padlock Ranch, Inc., a corporation, Objector, Contestant and Appellant, vs. Washakie Needles Irrigation District, Contestee and Respondent, this day decided, the district court adjudged that "the elimination of the lands covered by territorial water rights or which are not proposed to be furnished any supplemental water supply from said project, in no manner affects other lands within said district, for the reason that no portion of the cost of said projects should be borne by the said lands so eliminated, and that no assessments for Benefits or Construction could have been approved against said lands and that they would have been eliminated from said district at the time of a hearing on the Report and Petition for the confirmation of Assessments for Benefits and Construction against the lands within said Irrigation District." This action was taken upon evidence substantially conflicting, as we see the record, and there was credible and substantial evidence to authorize the court's finding. We shall not review the evidence submitted, as it would hardly add to the usefulness of the opinion herein, but would only unnecessarily lengthen it. Each case of this character must necessarily be controlled by its own facts and circumstances, which seldom, if ever, are the same.
Under well established principles of appellate procedure we shall affirm that portion of the judgment appealed from in this case, as even if the Washakie District should be formed hereafter, with or without federal assistance, the respondent's lands excluded by the court should not form a part thereof.
Affirmed.
BLUME, C.J., and KIMBALL, J., concur.