§ 41-1-101. Permit for construction of Glendo Reservoir and storage of water; restrictions; adjudication of water rights after issuance.

1. That the state engineer of the state of Wyoming is hereby authorized to approve when prepared in proper form and checked against his records, the application of the United States of America, bureau of reclamation, for permit to construct the Glendo Reservoir and to store water of the state of Wyoming from the North Platte River for the irrigation of lands in the states of Wyoming and Nebraska, and for development of power, flood control and silt control purposes.
2. This permit may contain whatever restrictions the state engineer may consider necessary to protect water rights and other rights of the state of Wyoming.
3. After issuance of permit under legislative authority and completion of the work according to terms of the permit, the state board of control is hereby authorized to adjudicate the water right upon proper showing of completion of construction. This authorization is made to conform with W.S. 41-4-104 .

History. Laws 1953, ch. 150, § 1; W.S. 1957, § 41-1.

§ 41-1-102. [Repealed.]

Repealed by Laws 2005, ch. 8, § 1.

Editor's notes. —

These sections, which derived from Laws 195, ch. 146, §§ 1 through 3, pertained to the library of water resources.

Laws 2005, ch. 8, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 17, 2005.

§ 41-1-103. [Repealed.]

Repealed by Laws 2005, ch. 8, § 1.

§ 41-1-104. [Repealed.]

Repealed by Laws 2005, ch. 8, § 1.

§ 41-1-105. Use of underground water in adjoining state; adjudication by board of control.

After issuance of the permit under legislative authority and completion of the work according to the terms of the permit, the board of control may adjudicate said underground water rights upon proof of beneficial use as provided by W.S. 41-4-511 .

History. Laws 1965, ch. 158, § 2; W.S. 1957, § 41-1.5.

Law reviews. —

For article, “Wyoming's Groundwater Laws: Quantity and Quality Regulation,” see XXIV Land & Water L. Rev. 39 (1989).

§ 41-1-106. Water and related land resources planning; commission's responsibility.

The commission is responsible for the coordination of Wyoming’s water and related land resources planning and with the approval of the governor is authorized to enter into contracts and agreements with the United States of America or its duly authorized representative agency for planning pertaining to the utilization of Wyoming’s water and related land resources.

History. Laws 1967, ch. 138, § 1; W.S. 1957, § 41-1.6; Laws 1973, ch. 233, § 2; 1977, ch. 103, § 1; 1979, ch. 59, § 2.

Cross references. —

As to creation of water development commission, see § 41-2-117 .

§ 41-1-107. Water and related land resources planning; authority of commission.

1. With the approval of the governor the commission is authorized to accept federal funds through grants or matching funds or from other sources for water and related land resources planning.
2. The commission is authorized:
   1. To adopt rules and regulations as are necessary to implement any programs which may be required of the state by federal water and related land resources planning legislation; and
   2. To implement any programs which are required by this legislation to make the state eligible to receive funds from the federal government to carry out water and related land resources planning.

History. Laws 1967, ch. 138, § 2; W.S. 1957, § 41-1.7; Laws 1973, ch. 233, § 2; 1977, ch. 106, § 1; 1979, ch. 59, § 2.

§ 41-1-108. Water and related land resources planning; dispositions of monies and commission offices.

1. Any funds so received shall be deposited with the state treasurer, to be accounted for as provided by law. Money may be expended as provided by law. All records, property, personnel positions and unused funds not necessary for administrative duties as determined by the state engineer shall be transferred for water planning development from the state engineer’s budget to the commission.
2. The commission shall occupy the facilities presently occupied by the water planning division of the office of state engineer or such facilities as may be made available.

History. Laws 1967, ch. 138, § 3; W.S. 1957, § 41-1.8; Laws 1974, ch. 16, § 2; 1979, ch. 59, § 2.

§ 41-1-109. Interference with natural flow of thermal springs; authority to correct.

The state engineer is given the authority to abolish, correct, discontinue or stop any condition which interferes with the natural flow of any thermal spring on state lands.

History. Laws 1969, ch. 91, § 1; W.S. 1957, § 41-1.9.

§ 41-1-110. Interference with natural flow of thermal springs; nonthermal water or mineral development.

Nothing in this act [§§ 41-1-109 through 41-1-111 ] shall be construed to limit any nonthermal water, or mineral development so long as said development does not interfere with the natural flow of the thermal springs covered by this act.

History. Laws 1969, ch. 91, § 2; W.S. 1957, § 41-1.10.

§ 41-1-111. Interference with natural flow of thermal springs; injunctive relief.

The state engineer may seek injunctive relief to implement this act [§§ 41-1-109 through 41-1-111 ].

History. Laws 1969, ch. 91, § 3; W.S. 1957, § 41-1.11.

§ 41-1-112. Conducting business electronically.

The state engineer’s office may allow its business to be conducted electronically as provided by the Uniform Electronic Transactions Act, W.S. 40-21-118 .

History. Laws 2005, ch. 15, § 1.

Effective dates. —

Laws 2005, ch. 15, § 3, makes the act effective July 1, 2005.

§§ 41-2-101 through 41-2-106. [Repealed.]

Repealed by Laws 1999, ch. 149, § 1.

Editor's notes. —

These sections, which derived from Laws 1973, ch. 29, § 1, related to a stream preservation feasibility study.

Section 41-2-101 was purportedly amended by Laws 1999, ch. 69, § 2, prior to its repeal by Laws 1999, ch. 149, § 1.

§ 41-2-107. Water resources plans; review; submission to commission.

The commission shall formulate and from time to time review and revise water and related land resources plans for the state of Wyoming and for appropriate regions and river basins. The plans shall implement the policies stated in the Wyoming constitution and in statutes pertaining to the state’s water and related land resources.

History. Laws 1973, ch. 233, § 1; W.S. 1957, § 41-1.18; Laws 1977, ch. 106, § 1; 1979, ch. 59, § 2.

Law reviews. —

For comment, “The Idaho and Montana Procedures for Obtaining Water Use Permits — Possible Sources for Improvement of Wyoming Law,” see X Land & Water L. Rev. 435 (1975).

§ 41-2-108. Water resources plans; powers of commission.

1. In the formulation of these plans the commission may:
   1. Repealed by Laws 1979, ch. 59, § 5.
   2. Consult with and receive the views of persons, local groups and organizations representing water users, special interests, industries and the public interest, and acquire data and information relating to water, water use, water conservation, and water quality from government agencies, departments and other sources;
   3. Coordinate the water resources plans with other government agencies and departments;
   4. Undertake studies, investigations, surveys and research relevant to the formulation of the water resources plans and enter into contracts and arrangements for the same with any government agency, department, or any person, firm, university, institution, or state or national organization;
   5. Adopt, in whole or in part, studies and reports made by other governmental agencies, state or federal; and
   6. Perform other related activities or functions as are relevant and appropriate to the formulation of water resources plans.

History. Laws 1973, ch. 233, § 1; W.S. 1957, § 41-1.19; Laws 1979, ch. 59, §§ 2, 5.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-2-109. Water resources plans; contents.

1. The water resources plans shall, to the extent deemed practical:
   1. Identify, describe and inventory the occurrence, amounts, availability and quality of water resources, current uses of water, activities that affect the quality of water, and activities that are dependent on, affected by, or relate to water and uses of water;
   2. Identify and describe prospective needs and demands for water and opportunities for water development, control, withdrawal, storage, conservation, supply, distribution, drainage and disposal;
   3. Identify and specify for each plan appropriate state, regional and local goals and objectives for management of water resources, including the obtaining of economic efficiency and a desirable distribution of income, the protection of the health, safety and welfare of the people, the protection and encouragement of particular industries and activities, the protection and enhancement of the environment and recreation; and
   4. Evaluate and compare prospective and anticipated uses and projects, including combinations and coordinations thereof, uses of alternative sources of water and alternative uses of water, in terms of goals identified pursuant to paragraph (iii) of this subsection.

History. Laws 1973, ch. 233, § 1; W.S. 1957, § 41-1.20; Laws 1979, ch. 59, § 2.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Law reviews. —

For article, “The Complexities of Managing Hydrologically Connected Surface Water and Groundwater Under the Appropriation Doctrine,” see XXII Land & Water L. Rev. 63 (1987).

§ 41-2-110. Water resources plans; duties of commission.

1. The commission shall:
   1. Publish the water resources plans as they are formulated and adopted and disseminate them to people, industries and government departments and agencies;
   2. Give advice and assistance if requested to government departments and agencies, furnish to them the appropriate plans, and make available related subsidiary and additional data and information, or data and information related to plans in the process of preparation;
   3. Recommend action or legislation needed to implement and carry out the plans.
   4. Repealed by Laws 1979, ch. 59, § 5.

History. Laws 1973, ch. 233, § 1; W.S. 1957, § 41-1.21; Laws 1979, ch. 59, §§ 2, 5.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-2-111. Suits for enforcement of water rights; appeals from decisions of state engineer and state board of control.

1. Upon the request of the state engineer, the attorney general shall bring suit in the name of the state of Wyoming, in the proper district court, to enjoin the unlawful appropriation, diversion or use of the waters of the state, or the waste or loss thereof. A showing of injury in such suits shall not be required as a condition to the issuance of any temporary restraining order, preliminary or permanent injunction. If an appeal is taken from the judgment or decree entered by the district court in such suit, it shall be the duty of the supreme court, at the request of one (1) of the parties, to advance the appeal to the head of its docket and give it precedence over all other civil causes in the hearing and determination thereof.
2. Upon any appeal being taken from the board of control or state engineer to a district court, it shall be the duty of the court, at the request of one (1) of the parties, to advance the appeal to the head of its trial docket and to give the appeal precedence over all civil causes in the hearing and determination thereof. If an appeal is then taken from the judgment or decree of the district court to the supreme court of the state, it shall be the duty of the supreme court, at the request of one (1) of the parties to the appeal, to advance the appeal to the head of its docket and give it precedence over all civil causes in the hearing and determination thereof.

History. Laws 1973, ch. 145, § 1; W.S. 1957, § 41-1.22.

§ 41-2-112. Wyoming water development program.

1. The Wyoming water development program is established to foster, promote and encourage the optimal development of the state’s human, industrial, mineral, agricultural, water and recreational resources. The program shall provide, through the commission, procedures and policies for the planning, selection, financing, construction, acquisition and operation of projects and facilities for the conservation, storage, distribution and use of water, necessary in the public interest to develop and preserve Wyoming’s water and related land resources. The program shall encourage development of water facilities for irrigation, for reduction of flood damage, for abatement of pollution, for preservation and development of fish and wildlife resources and for protection and improvement of public lands and shall help make available the waters of this state for all beneficial uses, including but not limited to municipal, domestic, agricultural, industrial, instream flows, hydroelectric power and recreational purposes, conservation of land resources and protection of the health, safety and general welfare of the people of the state of Wyoming.
2. In developing financing recommendations under the Wyoming water development program, the commission shall:
   1. Emphasize multi-purpose water projects for maximum benefits and cost allocation;
   2. Identify project costs and benefits;
   3. Recommend an allocation of project costs, including expenditures of state funds for Level I reconnaissance studies and Level II feasibility studies, to be reimbursed by project beneficiaries and to be borne by the state;
   4. Recommend terms and conditions of financing project costs, maintenance and operation, based on the benefits to be derived by project beneficiaries and their respective ability to pay;
   5. Consider all funds, assets and revenue sources of all project beneficiaries and recommend financing plans which will reimburse expenditures of state funds, except as such expenditures may be allocated to a state benefit, including enhancement of fish and wildlife habitat or recreation;
   6. Consider state construction and ownership of any project which requires the state to finance unreimbursed costs in excess of ten percent (10%) of the total project cost, and submit recommendations on project costs and potential revenues from sale of water or power from the project;
   7. Consider any other factors necessary to develop comprehensive financing recommendations.

History. Laws 1975, ch. 180, § 1; W.S. 1957, § 41-1.42; Laws 1979, ch. 59, § 2; 1982, ch. 59, § 1; 1988, ch. 79, § 2; 2004, ch. 130, § 1.

The 2004 amendment, in (a), inserted “and” following “fish and wildlife resources.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Law reviews. —

For comment, “Statutory Recognition of Instream Flow Preservation: A Proposed Solution for Wyoming,” see XVII Land & Water L. Rev. 139 (1982).

For comment, “Wyoming's New Instream Flow Act: An Administrative Quagmire,” see XXI Land & Water L. Rev. 455 (1986).

§ 41-2-113. Definitions.

1. As used in W.S. 41-1-106 through 41-1-108 and 41-2-107 through 41-2-118 :
   1. “Project” means any dam, reservoir, canal, ditch, well or well field, hydroelectric power plant, regulatory work and all works and facilities necessary for the supply and utilization of water for beneficial uses, including the improvement of any feature, facility, function or portion of a project;
   2. “Construct” means to construct, to acquire by legal means, to contribute or loan funds for the construction of and to finance the construction or acquisition of a project;
   3. “Commission” means the Wyoming water development commission created by W.S. 41-2-117 .

History. Laws 1975, ch. 180, § 1; W.S. 1957, § 41-1.43; Laws 1977, ch. 119, § 1; 1979, ch. 59, § 2.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-2-114. Development of water projects; rehabilitation of water projects.

1. The commission shall, on the basis of the state water plan or as otherwise directed by the legislature and after consultation with and advice from state agencies and officials, other appropriate agencies and officials, the joint business council of the Eastern Shoshone and Northern Arapaho Indian tribes, the business council of the Eastern Shoshone Indian tribe, the business council of the Northern Arapaho Indian tribe and members of the public, identify and select potential projects to be studied for inclusion in the Wyoming water development program pursuant to the following schedule:
   1. Level I reconnaissance studies shall, to the extent possible:
      1. Describe the project;
      2. Identify the need for the project including supplies and demands for the water;
      3. In cooperation with the state engineer, assess the status of water rights, including existing conflicts and recommendations for resolution of the conflicts and other potential obstacles;
      4. Assess and describe federal permits required for construction;
      5. Assess environmental considerations and constraints, including recreational use of the water in storage;
      6. Identify legal constraints to development;
      7. Identify alternate sources of supply including both surface water and groundwater;
      8. Summarize public testimony received at meetings held by the commission in the basin of origin; and
      9. Contain the commission’s recommendation to the legislature whether to terminate further consideration of the proposed project or to continue the project at its current level of study, or to proceed with further activity under paragraph (a)(ii), (iii) or (iv) of this section.
   2. Level II feasibility studies shall to the extent possible:
      1. Include a detailed analysis of factors relevant to development, operation and maintenance;
      2. Identify major problems and opportunities concerning development and the environmental, recreational, social and economic effects of development;
      3. Identify the desired sequence of events, including commencement of state and federal permitting activities and acquisition of land;
      4. Summarize testimony received at public hearings held by the commission in the basin of origin;
      5. Include test drilling for groundwater projects;
      6. Contain final concept design and cost estimates;
      7. Include the project financing plan;
      8. Identify the interests in land and water rights to be acquired and the means and costs of acquisition. An “interest in land” may include the fee simple title or any other interest in land less than a fee simple; and
      9. Include draft legislation describing in detail the construction, operation and financing of the proposed project, including reimbursement of predevelopment costs from the beneficiaries of the project.
   3. Repealed by Laws 1988, ch. 79, § 11.
   4. Level III construction and operation plans shall proceed as authorized and approved by the legislature under the immediate direction and control of the commission. Preference in the marketing of hydroelectric power from any such project shall be given to utilities serving Wyoming municipalities and to rural electric cooperatives where economical and permissible under federal law. Pursuant to legislative authorization for water development projects and prior to completion of Level III construction the commission may:
      1. Design, construct, acquire or purchase water development projects for the conservation, storage, distribution and use of water or any feature, facility, function or portion of a project;
      2. Contract for the performance of any power under subparagraph (A) of this paragraph, and consult with or employ experts and professional persons;
      3. Acquire by purchase, lease, appropriation, gift, exchange or eminent domain, necessary land, easements and other property for construction, operation and maintenance of water projects and accept gifts, grants and contributions of money from any source;
      4. Acquire by purchase, lease, appropriation, development, gift or exchange necessary water rights for construction, operation and maintenance of water projects and accept gifts, grants and contributions of money from any source;
      5. Contract for the sale, lease or delivery of water, water rights, water storage or hydroelectric power, and fix charges, rates, rents, fees and tolls;
      6. Contract with, contribute to or receive contributions from any legal subdivision of the state, special district, the joint business council of the Eastern Shoshone and Northern Arapaho Indian tribes, the business council of the Eastern Shoshone Indian tribe, the business council of the Northern Arapaho Indian tribe, private corporation or person for the construction, operation, management and maintenance of any project or any interest in any facility or function of a project.
   5. After completion of Level III construction, the commission:
      1. Shall be responsible for the operation and maintenance of state owned facilities constructed under the direction and control of the commission;
      2. Shall manage contracts and agreements entered into by the commission pursuant to paragraph (iv) of this subsection;
      3. May contract for the sale, lease or delivery of water, water rights, water storage or hydroelectric power and fix charges, rates, rents, fees and tolls for any project constructed pursuant to paragraph (iv) of this subsection not in conflict with contracts and agreements entered into by the commission;
      4. May contract with, contribute to or receive contributions from any legal subdivision of the state, special district, the joint business council of the Eastern Shoshone and Northern Arapaho Indian tribes, the business council of the Eastern Shoshone Indian tribe, the business council of the Northern Arapaho Indian tribe, private corporation or person for the operation, management and maintenance of any project or any interest in any facility or function of a project.
2. State agencies shall cooperate fully with the commission in the preparation of the studies. In the execution of these activities, the commission shall:
   1. Receive and acquire data relating to water, water use and water quality from any source as it relates to the project;
   2. Repealed by Laws 1979, ch. 59, § 5.
   3. Hold public hearings within the basin of origin water division where the proposed project will be wholly or partly constructed, consult with and receive the views of private persons, local groups, associations and organizations representing water users, industries and the public interest;
   4. Coordinate the feasibility studies with the plans of other government agencies and departments;
   5. Undertake studies, investigations, surveys and research relevant to the completion of the study and enter into contracts and arrangements for its completion with any government agency, department or any person, firm, university, institution or state or national organization;
   6. Undertake studies, investigations, surveys and research relevant to outright purchase by the state of Wyoming of water interests from the federal government;
   7. Perform any other related activities or functions relevant and appropriate to the completion of the feasibility study; and
   8. Maximize the use of all existing information, data, reports and other materials, and no funds shall be expended to duplicate existing information, data, reports and other materials.
3. Repealed by Laws 1982, ch. 59, § 2.
4. The commission may suspend the expenditure of time or funds on a project at any level of activity, if it is established that it would be in the public interest. The commission shall report the reason for any suspension of activity to the legislature.
5. Any person seeking financial assistance from the water development account to rehabilitate an existing water project shall submit that request to the commission. The commission shall:
   1. Review and develop plans and recommendations for the project as provided in this section.
   2. Repealed by Laws 1986, ch. 109, § 3.
6. The commission shall make a recommendation to the legislature for disposition of projects it retains under subsection (e) of this section.

History. Laws 1975, ch. 180, § 1; W.S. 1957, § 41-1.44; Laws 1979, ch. 59, §§ 2, 5; 1982, ch. 59, §§ 1, 2; 1983, ch. 122, § 1; 1986, ch. 109, §§ 1, 3; 1988, ch. 79, §§ 2, 11; 1992, ch. 42, § 3; 1998, ch. 6, § 3; 2003, ch. 78, § 1; 2005, ch. 84, § 1; 2006, ch. 114, § 1.

The 2005 amendment inserted references to the business councils of the Eastern Shoshone and Northern Arapahoe Indian tribes in (a), (a)(iv)(F) and (a)(v)(D).

Laws 2005, ch. 84, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 24, 2005.

The 2006 amendment added “and” at the end of (b)(vii); and made a stylistic and related change.

Laws 2006, ch. 114, § 5, makes the act effective immediately upon all completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyoming Constitution. Approved March 24, 2006.

Editor's notes. —

There is no subparagraph (a)(i)(I) or (a)(ii)(I) in this section as it appears in the printed acts.

Laws 2005, ch. 84, § 3, provides: “The state of Wyoming recognizes members of the Eastern Shoshone and Northern Arapaho Indian tribes are citizens of both their tribal governments and of Wyoming, as well as several of its political subdivisions. Those citizens can best be served if the business councils of both tribes, in addition to the joint business council, are allowed to work cooperatively with the state of Wyoming and the state's political subdivisions.”

Laws 2004, ch. 34, § 10, as amended by Laws 2005, ch. 75, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004. Laws 2005, ch. 75, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 22, 2005.

Laws 2004, ch. 118, § 13, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 16, 2004.

Laws 2005, ch. 147, § 14, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 25, 2005.

Laws 2006, ch. 99, § 9, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved March 24, 2006.

Laws 2006, ch. 105, § 22, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 24, 2006.

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “[A]ny other act adopted by the Wyoming Legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

§ 41-2-115. Report; authorization; assignment.

1. In preparation of the final concept design under W.S. 41-2-114(a)(ii), the commission shall after giving public notice hold a public hearing within the affected water division. Any interested person, association or state or federal agency may appear and participate as a party. Following the hearing, the commission shall make public a report of their findings relative to whether the project is in the public interest, stipulating if the proposed project functions and services can be served by any person, association or corporation engaged in private enterprise, or if private enterprise has refused to provide the functions and services identified as being required by the proposed project. The commission shall then proceed as set forth in subsections (b) and (c) of this section. Nothing in this section shall be construed to interfere with the duties of the state engineer or the state board of control.
2. The commission shall within ninety (90) days following the public hearings transmit its findings and recommendations to the governor and legislature pursuant to W.S. 41-2-114(a). Within thirty (30) days following receipt of the findings and recommendations of the commission, the governor shall submit separate recommendations concerning the projects to the legislature. If the recommendations of the governor differ from those of the commission, the governor shall state the reasons for nonconcurrence with the recommendations of the commission.
3. If the commission finds that a project is desirable and in the public interest, and that some other governmental agency, public district or private corporation or association is desirous and capable of constructing, operating and maintaining the project and accomplishing the public interest to be served thereby, the commission, with the approval of the governor and the legislature, shall transfer or assign the project and any property or rights connected therewith to the agency, district, corporation or association upon agreed terms for reimbursement of the expense of predevelopment costs, payment for property and assurances of construction, operation and maintenance.

History. Laws 1975, ch. 180, § 1; W.S. 1957, § 41-1.45; Laws 1979, ch. 59, § 2; 1982, ch. 59, § 1; 1988, ch. 79, § 2.

§ 41-2-116. Water rights.

1. The director of the Wyoming water development office shall, at the direction of the governor, file applications in the name of the state of Wyoming for permits to appropriate water, to construct dams and other works, and to take the steps necessary to acquire, maintain or preserve the priority of any right essential to any project which is or may become a project of the Wyoming water development program, except that nothing in this subsection shall be construed to authorize or empower the director of the Wyoming water development office to acquire water rights through the power of eminent domain.
2. All laws of the state relating to the appropriation and use of water shall apply to any projects of the Wyoming water development program.

History. Laws 1975, ch. 180, § 1; W.S. 1957, § 41-1.46; Laws 1979, ch. 59, § 2; 1986, ch. 109, § 1; 1992, ch. 42, § 3.

§ 41-2-117. Wyoming water development commission; membership; removal; terms.

1. The Wyoming water development commission is created to consist of ten (10) members. The membership shall include:
   1. Nine (9) persons, two (2) shall be residents appointed from each water division of the state as defined in W.S. 41-3-501 , at least one (1) will be a person having an adjudicated water right. One (1) resident of Wyoming shall be appointed at large and one (1) shall be an enrolled member of the Arapahoe or Shoshone Indian tribes who is resident on the Wind River Indian Reservation:
      1. They shall be appointed by the governor, after consultation with the superintendent of each water division and approval of the senate, and may be removed by the governor as provided in W.S. 9-1-202 ;
      2. Not more than seventy-five percent (75%) of the members shall be of the same political party;
      3. Appointments are for a term of four (4) years;
      4. Five (5) of the first appointees shall serve two (2) year terms and four (4) appointees shall serve four (4) year terms;
      5. No person shall be appointed for more than two (2) consecutive terms;
      6. If any member ceases to reside in or is absent from the division from which appointed for a continuous period of six (6) months or more, the governor shall declare his office vacant and shall appoint a successor from the same division for the unexpired term;
      7. The governor shall fill a vacancy for an unexpired term in a like manner to subparagraph (F) of this paragraph;
      8. The commission shall annually select one (1) of its members as chairman and one (1) of its members as secretary;
      9. To serve as consultants without vote the following are designated:
         1. The state engineer or his designee;
         2. The chief executive officer of the Wyoming business council or other person designated by the council; and
         3. A person with interest, training and expertise in water resource matters from the University of Wyoming or the Wyoming Water Resource Research Institute, appointed by the president of the university with the approval of the board of trustees.
2. Members from the four (4) water divisions, the at-large member and the tribal member shall be voting members of the commission. Six (6) members constitute a quorum for the transaction of commission business.
3. All grant and loan programs over which the commission has authority shall be administered by the Wyoming water development office.

History. Laws 1979, ch. 59, § 1; 1987, ch. 175, § 1; 1989, ch. 145, § 2; 1990, ch. 123, § 1; 1992, ch. 42, § 3; 1998, ch. 6, § 3; 2010, ch. 82, § 1; 2016 ch. 119, § 1, effective July 1, 2016.

The 2010 amendment, made a stylistic change.

Laws 2010, ch. 82, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2010.

The 2016 amendment, effective July 1, 2016, in (a)(i)(B), substituted “seventy-five percent (75%) of the” for “five (5).”

Editor's notes. —

There is no subparagraph (a)(i)(I) or paragraph (a)(ii) in this section as it appears in the printed acts.

Laws 2016, ch. 119, § 2 states as follows: “Nothing in this act shall be deemed to affect the current term of any member of any authority, board, commission, committee or council. The governor shall make appointments in accordance with this act for any vacancy occurring on or after the effective date of this act.”

§ 41-2-118. Powers, duties, salaries and expenses of commission.

1. The commission shall:
   1. Repealed by Laws 1992, ch. 42, § 4.
   2. Have authority to contract for legal counsel upon approval of the governor to assist in matters related to water resource development as directed by the commission. By request of the commission and upon approval of the governor, the legal counsel shall be entitled to use monies appropriated for legal matters relating to water development. Legal counsel shall consult with the commission, director of the Wyoming water development office, state engineer and attorney general on a regular basis;
   3. Submit an annual report of its activities, expenses, recommendations and other items to the governor and the joint agriculture, state and public lands and water resources interim committee by December 31;
   4. Meet quarterly and as necessary and as the governor may direct;
   5. Biennially on or after March 1 elect a chairman from the nine (9) persons;
   6. Establish and adjust priorities for water development projects;
   7. Adopt rules and regulations to implement the provisions of W.S. 41-1-106 through 41-1-108 and 41-2-107 through 41-2-118 , including establishment of qualifications for the administrator;
   8. Perform other duties as directed by law;
   9. As nearly as possible represent and assist all interests advocating water development and conservation in the state;
   10. Have the duty and the authority to conduct studies, develop plans, and recommend legislation which may be enacted for the purpose of securing full utilization of the waters of the state of Wyoming, giving priority to projects for utilization of waters not now being beneficially used in Wyoming;
   11. Repealed by Laws 1992, ch. 42, § 4.
   12. Establish an application fee not to exceed one thousand dollars ($1,000.00) which shall be paid by potential project beneficiaries prior to commission consideration of a project for inclusion in the water development program. Application fees shall be deposited into water development account I;
   13. Represent or advocate the state’s interests in negotiations and construction of water projects assigned by the legislature or the governor;
   14. Have authority  to temporarily defer the principal amount due on debt service payments  for money loaned to an irrigation district, watershed improvement  district, conservation district or a conservancy district for construction  of water development projects whenever the governor has declared that  a drought emergency exists within the affected district’s service  area. The district shall be eligible for the temporary deferral of  the principal amount due, provided the interest payments on the remaining  principal amount are paid and current. The commission shall amend  the amortization schedule to reflect the length of time from the date  the affected district seeks the temporary deferral to the date the  governor declares the emergency drought condition no longer exists;
   15. With the approval  of the governor, have the authority to enter into contracts and agreements  with the United States of America or its duly authorized representative  agency to accept federal funds through grants or matching funds or  from other sources for project costs pertaining to the utilization  of Wyoming’s water resources; and
   16. Have authority to promulgate rules to delegate administrative  duties to the Wyoming water development office to facilitate the effective  operation of the commission.
2. Commission members shall receive a salary of one hundred twenty-five dollars ($125.00) per day and actual and necessary traveling expenses while away from home while engaged in the performance of commission duties.

History. Laws 1979, ch. 59, § 1; 1982, ch. 59, § 1; 1987, ch. 175, § 1; 1992, ch. 42, §§ 3, 4; 1996, ch. 15, § 5; 1997, ch. 31, § 2; 1998, ch. 6, § 3; 2003, ch. 158, § 1; 2004, ch. 96, § 1; 2006, ch. 114, § 1; 2007, ch. 33, § 1; 2015 ch. 167, § 1, effective March 9, 2015; 2017 ch. 34, § 1, effective February 17, 2017.

The 2004 amendment, in (b), substituted “Commission” for “Water division,” and “one hundred twenty-five dollars ($125.00)” for “fifty dollars ($50.00).”

Laws 2004, ch. 96, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 5, 2004.

The 2006 amendment, added “and” in (a)(xiii); and made a related change.

Laws 2006, ch. 114, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 14, 2006.

The 2007 amendment, effective July 1, 2007, in (a)(iii) inserted “state and” preceding “public lands and water.”

The 2015 amendment, in (a) added (xv) and made related changes to (a)(xiii) and (xiv).

Laws 2015, ch. 167, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, § 8 of the Wyo. Const. Approved March 9, 2015.

The 2017 amendment , added (a)(xvi).

Laws 2017, ch. 34, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved Feb. 17, 2017.

Severability. —

Laws 1979, ch. 59, § 4, reads: “If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.”

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “[A]ny other act adopted by the Wyoming Legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

§ 41-2-119. Groundwater studies.

1. The Wyoming water development commission may grant not to exceed eight million eight hundred thousand dollars ($8,800,000.00) to incorporated cities and towns, water and sewer districts and improvement and service districts in Wyoming for exploration for and feasibility studies of the use of underground water for municipal and rural domestic purposes, not to exceed four hundred thousand dollars ($400,000.00) for any one (1) exploration or study. The grants shall be made from revenues from water development account I and those revenues are hereby so appropriated. Any city or town, water and sewer district or service and improvement district receiving a grant pursuant to this section shall provide at least twenty-five percent (25%) of the cost of the exploration or study from its own funds. The commission shall adopt rules and regulations governing application procedures for the grants.
2. The commission may expend from the funds appropriated under subsection (a) of this section for exploration and for feasibility studies of the use of underground water for municipal and rural domestic purposes subject to the following conditions:
   1. The exploration or study shall be conducted in conjunction with an incorporated city or town, water and sewer district or service and improvement district in Wyoming under an agreement;
   2. Not more than four hundred thousand dollars ($400,000.00) in state funds shall be expended for any one (1) exploration or study under this subsection;
   3. The incorporated city or town, water and sewer district or service and improvement district shall provide at least twenty-five percent (25%) of the cost of the exploration or study from funds other than under this subsection;
   4. The incorporated city or town, water and sewer district, or improvement and service district shall apply for participation in this program under procedures established by rules and regulations adopted by the commission.

History. Laws 1981, Sp. Sess., ch. 8, § 1; 1984, ch. 35, § 1; 1988, ch. 79, § 2; 1998, ch. 5, § 2; 2000, ch. 97, § 3; 2002 Sp. Sess., ch. 7, § 7; 2005, ch. 75, § 2; 2008, ch. 33, § 6; 2012, ch. 57, § 7; 2019 ch. 105, § 6, effective February 26, 2019.

The 2005 amendment, in (a), substituted “five million five hundred thousand dollars ($5,500,000.00)” for “four million five hundred thousand dollars ($4,500,000.00)”; and in (b), deleted “not to exceed two million five hundred thousand dollars ($2,500,000.00)” following “The commission may expend.”

Laws 2005, ch. 75, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 22, 2005.

The 2008 amendment, substituted “six million dollars ($6,000,000.00)” for “five million five hundred thousand dollars ($5,500,000.00)” in the first sentence of (a).

Laws 2008, ch. 33, § 9, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, of the Wyo. Const. Approved March 4, 2008.

The 2012 amendment, substituted “six million eight hundred thousand dollars ($6,800,000.00)” for “six million dollars ($6,000,000.00)” in the first sentence of (a).

Laws 2012, ch. 57 § 8, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 8, 2012.

The 2019 amendment, in (a), substituted "eight million eight hundred thousand dollars ($8,800,000.00)" for "six million eight hundred thousand dollars ($6,800,000.00)."

Editor's notes. —

Laws 2008, ch. 33, § 7, provides: “The Wyoming Water Development Commission is authorized to contract with the University of Wyoming in an amount not to exceed one hundred sixty-five thousand dollars ($165,000.00) from water development account I to fund the Office of Water Programs established under W.S. 41-2-125 from July 1, 2008 through June 30, 2010.”

§ 41-2-120. Approval of loans, construction or water contracts and agreements.

All loans, construction or water contracts and agreements to which the state is a party, entered into pursuant to this act or W.S. 41-2-114 , shall be submitted to the select [water] committee for thirty (30) days for its review and recommendation and approved and executed by the governor and the head of the agency, commission or board.

History. Laws 1982, ch. 60, § 1.

Cross references. —

As to select water committee, see § 28-11-101 .

§ 41-2-121. Criteria for water development projects; disclosure of personal interests by commission.

1. The water development commission shall establish criteria for evaluation and administration of water development projects. Criteria shall include but not be limited to the following:
   1. All water development proposals submitted to the legislature shall be reviewed by and accompanied by the recommendation of the water development commission;
   2. The commission’s recommendation shall:
      1. Emphasize projects developing unappropriated water;
      2. Give preference wherever possible to projects developing new storage capacity;
      3. Consider the potential for development of hydroelectric power in any project through Level II;
      4. Include a summary of the commission’s findings under W.S. 41-2-112(b);
      5. Include financing methods subject to the following:
         1. Any water development project may be financed by grants not to exceed seventy-five percent (75%) of the total cost of the project;
         2. Storage projects may be financed by grants for the full cost of the storage capacity but not to exceed public benefits as computed by the commission;
         3. Loans may be made for domestic, municipal, agricultural, industrial, recreational or fish and wildlife enhancement purposes;
         4. The term of a loan shall not exceed fifty (50) years after substantial completion of a project;
         5. Payment of interest and principal on loans may be deferred for not more than five (5) years after substantial completion of the project;
         6. Loan contracts for project construction shall include provisions to ensure [that] the project shall be operated and maintained during the term of the loan;
         7. The state may elect to own all or a part of a project and enter into water service repayment contracts with project developers;
         8. A project involving a transbasin diversion shall address the impact of the diversion and recommend measures to mitigate any adverse impact identified in the basin of origin;
         9. Interest on a loan should provide a reasonable return to the state but shall not be less than four percent (4%) except when the commission recommends a lower interest rate because of public benefits;
         10. Loan contracts for project construction shall provide for payment of interest on defaulted payments at a rate of ten percent (10%) per annum.
   3. Repealed by Laws 1986, ch. 109, § 3.
   4. The commission may disqualify from consideration or give lower priority to a project proposed to correct problems identified in a review performed by the department of environmental quality under W.S. 18-5-306(c) where the board of county commissioners approved a subdivision application notwithstanding the department’s recommendation that the application be disapproved.
2. Any member of the commission who has a personal or private interest in any matter proposed or pending before the commission shall publicly disclose this fact to the commission and shall not vote thereon.
3. Within sixty (60) days after the effective date of this subsection or within sixty (60) days following appointment and annually on or before January 1, each member of the commission shall file written disclosures relative to all interests held by the member or the member’s spouse, including interests in partnerships and corporations, with the secretary of state, of:
   1. Any water rights, permits or applications held, whether for direct flow, reservoirs or underground water;
   2. Any interests in engineering or construction firms which engage in designing or constructing water projects.
4. The promulgation of operating procedures and program criteria by the commission under this section and decisions of the commission relating to the recommendation, prioritization or disqualification of projects are specifically exempt from all provisions of the Wyoming Administrative Procedure Act including provisions for judicial review under W.S. 16-3-114 and 16-3-115 .
5. Prior to authorizing a water development project, the commission shall require each project sponsor to demonstrate that the entity has the authority to adequately assess fees or collect funds to cover operation and maintenance expenses related to the water development project. Any entity that does not have the authority or ability to collect sufficient funds for the operation and maintenance of the project may be required by the commission to establish an operations and maintenance account as provided in this section. The commission shall develop criteria related to the establishment of an operations and maintenance account which shall include:
   1. An operations and maintenance account shall only be required for project sponsors that have taken out a loan for any portion of the project expense and shall not be required after the loan has been repaid;
   2. The funds required in any operations and maintenance account shall not exceed ten percent (10%) of the project cost.

History. Laws 1983, ch. 166, § 1; 1984, ch. 52, § 2; 1986, ch. 109, § 3; 1996, ch. 15, § 5; 1997, ch. 179, § 1; 1999, ch. 11, § 1; 2018 ch. 17, § 1, effective July 1, 2018.

The 2018 amendment, effective July 1, 2018, added (e).

Editor's notes. —

The phrase “the effective date of this subsection” in subsection (c) first appeared in Laws 1984, ch. 52, which was effective immediately upon completion of all acts necessary for a bill to become law as provided for by art. 4, § 8, Wyo. Const. Approved March 16, 1984.

§ 41-2-122. Protection and rights of landowner.

1. The Wyoming water development commission shall include in the planning process at Level I notification to a landowner whose lands may be flooded or otherwise physically affected, as determined by the administrator. The commission shall include in the planning process at Level II consultation with any landowner whose land may be flooded or otherwise physically affected by a proposed water project and shall include a report on the proposed mitigation of landowner impacts as jointly identified by the commission and the landowner.
2. The Wyoming water development commission shall consult with and supply copies of reports and studies to any landowner whose land will be flooded or physically affected by any proposed water development project. The commission and any employees or other persons under the control of the commission shall mitigate any damages and disruption of the landowner’s operations during the study phase including prevention of public nuisances and shall enter on private property only in the manner provided by W.S. 1-26-506 and shall also be subject to W.S. 1-26-507 and 1-26-508 .
3. In proceeding with Level III, construction and operation plans, the commission shall follow the requirements of the Wyoming Eminent Domain Act, shall negotiate in good faith with affected landowners and, in addition, shall attempt to mitigate damages which may occur from the impacts enumerated in subsection (a) of this section.

History. Laws 1985, ch. 228, § 1; 1986, ch. 109, § 1; 1988, ch. 79, § 2.

Wyoming Eminent Domain Act. —

See §§ 1-26-501(a) and 1-26-502(a)(vi).

§ 41-2-123. Project studies generally; hearings; reimbursement of costs; source of funding; use of unobligated funds; recommendations to legislature.

1. The commission, after public notice, is authorized to conduct public workshops and public hearings in the affected regions on projects which have been approved for study by the legislature pursuant to W.S. 41-2-114 .
2. For each project authorized for Level I or Level II study by the legislature, the commission shall make a recommendation on the following alternatives:
   1. Proceed with next level of activity;
   2. Continue study at the presently authorized level of activity; or
   3. Terminate consideration of the project.
3. Funds appropriated by the legislature for Level I reconnaissance studies and Level II feasibility studies may be included in the costs to be reimbursed by project beneficiaries as provided by W.S. 41-2-112(b)(ii), unless otherwise specifically provided by the legislature.
4. For projects completed and in use prior to 1970, the funding for Level I and Level II activities shall come from those within water development account II unless otherwise specifically provided by the legislature.
5. The water development commission may commence and contract for a Level II feasibility study of a project using unobligated funds authorized by law for a Level I reconnaissance study of the project if:
   1. The Level I study is substantially complete;
   2. The due date for the Level I study report established by the legislature has not occurred;
   3. The commission finds the Level II study to be in the best interest of the state;
   4. The select water committee created under W.S. 28-11-101 reviews the commission request to proceed with the Level II study.
6. All recommendations, including proposed legislation, from the water development commission to the legislature required by law regarding specific water projects shall be presented to the select water committee created by W.S. 28-11-101 not later than fifteen (15) days prior to commencement of the legislature to which the reports are due. The committee shall review and make recommendations to the legislature regarding commission recommendations and proposed legislation.

History. Laws 1988, ch. 79, § 1; 1998, ch. 5, § 2; 2000, ch. 97, § 3.

§ 41-2-124. Accounts created; unexpended balance.

1. The following accounts are created:
   1. Water development account I into which shall be deposited revenues pursuant to law;
   2. Water development account II into which shall be deposited revenues pursuant to law;
   3. Water development account III into which shall be deposited revenues pursuant to law.
2. Any unexpended balance in water development accounts I, II and III as defined by subsection (a) of this section shall be invested by the state treasurer and the interest earned shall be credited to the account.
3. The state treasurer shall transfer such sums of money from water development accounts I and II created by subsection (a) of this section to the state drinking water revolving loan account created by W.S. 16-1-302 to provide not to exceed one-half (1/2) of the twenty percent (20%) state matching funds for each federal capitalization grant to the drinking water state revolving fund program account. The transferred funds shall be proportioned between water development accounts I and II as directed by the water development commission.
4. No new dam with storage capacity of less than two thousand (2,000) acre-feet of water or expansion of a dam with a storage capacity of less than one thousand (1,000) acre-feet of water shall be funded with funds from water development account III. Without the approval of the legislature, funds deposited into water development account III shall not be diverted from that account, other than for the purpose of financing projects related to dam construction or expansion.
5. There is transferred to the water development account III created by paragraph (a)(iii) of this section effective July 1, 2005:
   1. Fifty-four million seventy thousand dollars ($54,070,000.00) from water development account I reserved for the Green River/Wind River project development fund established in W.S. 99-3-604. The transfer of money into water development account III shall not eliminate recognition of the water storage potential in the Green River/Wind River basins;
   2. Ten million dollars ($10,000,000.00) from the budget reserve account.
6. There is created the emergency water projects account. All funds in the account are continuously appropriated to the water development commission for the purpose of funding emergency water projects as authorized by this subsection and subsections (g) and (h) of this section. Funds within the account shall be invested in the pool A investment account by the state treasurer pursuant to W.S. 9-4-715(p). Earnings from funds in the account shall be deposited in the account. Notwithstanding W.S. 9-1-417 , if the state loan and investment board determines that funds in the account are insufficient to make payment for the full cost of addressing emergency water projects which may occur in any year, the board is authorized to obtain a loan from the legislative stabilization reserve account of up to two million dollars ($2,000,000.00) which loan shall be repaid by interest earnings or loan repayments from the emergency water projects account.
7. Emergency water projects funded from the emergency water projects account under subsection (f) of this section shall be limited as follows:
   1. Emergency water projects shall consist only of repair, replacement or maintenance that is required for irrigation infrastructure which is rendered or likely to be rendered permanently inoperable due to an act of God including fire, earthquake, hurricane, storm or other similar natural disaster or phenomena or an unforeseen or impending natural or man-made event that requires immediate action to prevent a threat to or loss of life or property;
   2. Only political subdivisions that own or have the legal responsibility to operate or maintain irrigation infrastructure shall be eligible for emergency water project funding.
8. The commission shall adopt rules providing for eligibility determination, procedures and criteria for the application and award of funds from the emergency water projects account. The total amount awarded under this subsection shall not exceed three million dollars ($3,000,000.00) per fiscal biennium. The maximum grant amount awarded for each emergency project shall not exceed seventy-five percent (75%) of the total emergency project costs, the remaining twenty-five percent (25%) may be funded by the commission in the form of a loan. The term of a loan shall not exceed fifty (50) years and interest shall provide a reasonable return and shall not be less than four percent (4%). The commission shall include the total amount of all emergency water project grant or loan funds provided under this subsection and subtract that total from the maximum allowable grant under W.S. 41-2-121(a)(ii)(E)(I) for a subsequent water development project involving the same entity and project components. All emergency water projects account funds awarded under this subsection shall be approved by the state loan and investment board after review and recommendation by the water development commission prior to the release of funds.
9. The water development commission shall adopt rules authorizing a voluntary pool program within the emergency water projects account. Participant contributions to the voluntary pool program shall be deposited in a subaccount and funds within the subaccount shall be expended only for emergency projects involving a participant in the voluntary pool program. For accounting and investment purposes only, all subaccounts shall be treated as separate accounts. Expenditures from the voluntary pool program may be credited in whole or in part to the twenty-five percent (25%) loan for funding an emergency project of a participant.
10. As used in this section, “irrigation infrastructure” includes dams, canals, ditches, pipelines, aqueducts, tunnels, pumping stations, drainage and flow regulating structures.

History. Laws 1989, ch. 268, § 1; 1990, ch. 123, § 1; 1998, ch. 5, § 2; ch. 88, § 2; 2000, ch. 97, § 3; 2004, ch. 130, § 1; 2005, ch. 163, § 1; ch. 231, § 1; 2006, ch. 99, § 8; 2020 ch. 127, § 1, effective July 1, 2020.

The 2004 amendment, in (c), substituted “state drinking water revolving loan” for “drinking water state revolving fund.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

The 2005 amendments. —

The first 2005 amendment, by ch. 163, § 1, effective July 1, 2005, added (a)(iii); in (b) deleted “After July 1, 1992” at the beginning, and inserted the reference to water development account III; added (d) and (e); and made related changes.

The second 2005 amendment, by ch. 231, § 1, effective July 1, 2005, deleted “within the earmarked revenue fund” at the end of the introductory language in (a).

See the conflicting legislation note. This section is set out incorporating amendments made by both 2005 acts.

The 2006 amendment, substituted “water development account I reserved for the Green River/Wind River” for “the Level III Green River/Wind River construction” in (e).

Laws 2006, ch. 99, § 8 makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 24, 2006.

The 2020 amendment, effective July 1, 2020, added (f) through (k).

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Laws 2005, ch. 231, § 3, provides: “The provisions of this act shall supersede the provisions of any other bill enacted into law during the 2005 general session which amends or references accounts or funds to the extent any other enactment is inconsistent with the establishment of the funds and accounts created under this act. The state auditor shall account for any fund or account created in any other legislation enacted in the 2005 general session in accordance with generally accepted accounting principles (GAAP) as promulgated by the governmental accounting standards board (GASB) and in accordance with this act.”

§ 41-2-125. Office of water programs created; duties; annual report.

1. There is created the office of water programs within the office of research at the University of Wyoming. The office of water programs shall:
   1. Work directly with the director of the Wyoming water development office to identify research needs of state and federal agencies regarding Wyoming’s water resources, including funding under the National Institutes of Water Resources (NIWR);
   2. Serve as a point of coordination for and to encourage research activities by the University of Wyoming to address the research needs identified in paragraph (i) of this subsection;
   3. In conjunction with the Wyoming water development office, submit a report annually prior to each legislative session to the select water committee and the Wyoming water development commission on the activities of the office.

History. Laws 2002, Sp. Sess., ch. 65, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Appropriations. —

Laws 2004, ch. 34, § 6, authorizes the Wyoming water development commission to contract with the University of Wyoming in an amount not to exceed $116,000 from water development account I to fund the office of water programs established under W.S. 41-2-125 from July 1, 2004 through June 30, 2006.

Laws 2004, ch. 34, § 7, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

§ 41-2-201. [Renumbered.]

Renumbered as §§ 99-99-201 by Laws 2009, ch. 168, § 401.

§ 41-2-202. [Renumbered.]

Renumbered as § 99-99-202 by Laws 2009, ch. 168, § 401.

§ 41-2-203. [Renumbered.]

Renumbered as § 99-99-203 by Laws 2009, ch. 168, § 401.

§ 41-2-204. [Renumbered.]

Renumbered as §§ 99-99-204 by Laws 2009, ch. 168, § 401.

§ 41-2-205. [Renumbered.]

Renumbered as § 99-99-205 by Laws 2009, ch. 168, § 401.

§ 41-2-206. [Renumbered.]

Renumbered as § 99-99-206 by Laws 2009, ch. 168, § 401.

§ 41-2-207. [Repealed and Renumbered.]

Repealed by Laws 1986, ch. 113, § 14 and renumbered as § 99-99-207 by Laws 2009, ch. 168, § 401.

§ 41-2-208. [Renumbered.]

Renumbered as § 99-99-208 by Laws 2009, ch. 168, § 401.

§ 41-2-209. [Renumbered.]

Renumbered as § 99-99-209 by Laws 2009, ch. 168, § 401.

§ 41-2-210. [Renumbered.]

Renumbered as § 99-99-210 by Laws 2009, ch. 168, § 401.

§ 41-2-211. [Renumbered.]

Renumbered as § 99-99-211 by Laws 2009, ch. 168, § 401.

§§ 41-2-212 through 41-2-215. [Repealed and Renumbered.]

Repealed by Laws 1982, ch. 60, § 16 and renumbered as §§ 99-99-212 through 99-99-215 by Laws 2009, ch. 168, § 401.

§ 41-2-216. [Renumbered.]

Renumbered as § 99-99-216 by Laws 2009, ch. 168, § 401.

§ 41-2-217. [Renumbered.]

Renumbered as § 99-99-217 by Laws 2009, ch. 168, § 401.

§ 41-2-218. [Renumbered.]

Renumbered as § 99-99-218 by Laws 2009, ch. 168, § 401.

§ 41-2-219. [Renumbered.]

Renumbered as § 99-99-219 by Laws 2009, ch. 168, § 401.

§ 41-2-220. [Renumbered.]

Renumbered as § 99-99-220 by Laws 2009, ch. 168, § 401.

§ 41-2-221. [Renumbered.]

Renumbered as § 99-99-221 by Laws 2009, ch. 168, § 401.

§ 41-2-222. [Renumbered.]

Renumbered as § 99-99-222 by Laws 2009, ch. 168, § 401.

§ 41-2-301. [Renumbered.]

Renumbered as § 99-99-301 by Laws 2009, ch. 168, § 401.

§ 41-2-401. [Renumbered.]

Renumbered as § 99-99-401 by Laws 2009, ch. 168, § 401.

§ 41-2-501. [Renumbered.]

Renumbered as § 99-99-501 by Laws 2009, ch. 168, § 401.

§ 41-2-502. [Renumbered.]

Renumbered as § 99-99-502 by Laws 2009, ch. 168, § 401.

§ 41-2-503. [Renumbered.]

Renumbered as § 99-99-503 by Laws 2009, ch. 168, § 401.

§ 41-2-504. [Renumbered.]

Renumbered as § 99-99-504 by Laws 2009, ch. 168, § 401.

§ 41-2-505. [Renumbered.]

Renumbered as § 99-99-505 by Laws 2009, ch. 168, § 401.

§ 41-2-506. [Renumbered.]

Renumbered as § 99-99-506 by Laws 2009, ch. 168, § 401.

§ 41-2-601. [Renumbered.]

Renumbered as § 99-99-601 by Laws 2009, ch. 168, § 401.

§ 41-2-701. [Renumbered.]

Renumbered as § 99-99-701 by Laws 2009, ch. 168, § 401.

Article 9. Little Bighorn River [Renumbered.]

§ 41-2-1001. [Renumbered.]

Renumbered as § 99-99-1001 by Laws 2009, ch. 168, § 401.

§ 41-2-1101. [Renumbered.]

Renumbered as § 99-99-1101 by Laws 2009, ch. 168, § 401.

§ 41-2-1201. [Renumbered.]

Renumbered as § 99-99-1201 by Laws 2009, ch. 168, § 401.

§ 41-2-1301. Transfer of water authorized; conditions.

1. Pursuant to W.S. 41-3-115 , the United States Bureau of Reclamation and the Wyoming water development office are hereby authorized to transfer a maximum of thirty-three thousand four hundred ninety-three (33,493) acre feet of storage water per year from the environmental account in the Pathfinder Modification Project within Pathfinder reservoir to the Wyoming-Nebraska state line for the purpose of providing regulatory certainty under the Endangered Species Act for the use of Wyoming water in the Platte River basin.
2. Pursuant to W.S. 41-3-115 , and the Wyoming water development office is hereby authorized to transfer a maximum of nine thousand six hundred (9,600) acre feet of storage water per year from the Wyoming account in the Pathfinder Modification Project within Pathfinder reservoir to the Wyoming-Nebraska state line through annual temporary water use agreements with the Platte River Recovery Implementation Program in any year the storage water in the Wyoming account is not needed by the state of Wyoming as a municipal water supply or a replacement water supply to meet the state of Wyoming’s obligations in the Nebraska v. Wyoming settlement agreement and the Platte River Recovery Implementation Program.
3. The authorizations granted under subsections (a) and (b) of this section shall terminate if the state of Wyoming withdraws from the Platte River Recovery Implementation Program or any successor programs approved by the governor.
4. If the director of the Wyoming water development office determines that Wyoming water users are not receiving the regulatory certainty under the endangered species act as provided for in the Platte River recovery implementation program, he shall submit a report to the select water committee outlining the inadequacy of the regulatory certainty.
5. If the state engineer determines that the transfers authorized under subsections (a) and (b) of this section cause injury to Wyoming water users beyond those identified in the final opinion and recommendations provided to the legislature pursuant to W.S. 41-3-115(q), then the state engineer shall report the injury to the select water committee.
6. Any revenue generated through the annual temporary water use agreements for storage water from the Wyoming account shall be deposited in the account created by W.S. 41-2-1001(a)(iv).

History. Laws 2009, ch. 38, § 1.

§ 41-3-101. Nature of water rights and beneficial use.

A water right is a right to use the water of the state, when such use has been acquired by the beneficial application of water under the laws of the state relating thereto, and in conformity with the rules and regulations dependent thereon. Beneficial use shall be the basis, the measure and limit of the right to use water at all times, not exceeding the statutory limit except as provided by W.S. 41-4-317 . In addition to any beneficial use specified by law or rule and regulation promulgated pursuant thereto, the use of water for the purpose of extracting heat therefrom is considered a beneficial use subject to prior rights. Water being always the property of the state, rights to its use shall attach to the land for irrigation, or to such other purposes or object for which acquired in accordance with the beneficial use made for which the right receives public recognition, under the law and the administration provided thereby. Water rights for the direct use of the natural unstored flow of any stream cannot be detached from the lands, place or purpose for which they are acquired, except as provided in W.S. 41-3-102 and 41-3-103 , pertaining to a change to preferred use, and except as provided in W.S. 41-4-514 .

History. Laws 1909, ch. 68, § 1; C.S. 1910, § 724; C.S. 1920, § 832; Laws 1921, ch. 161, § 1; R.S. 1931, § 122-401; Laws 1941, ch. 25, § 1; 1945, ch. 118, § 2; C.S. 1945, 71-401; W.S. 1957, § 41-2; Laws 1981, ch. 28, § 1.

Legislature has power to regulate the appropriation of water. Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (Wyo. 1911).

“Water right” defined. —

A “water right” is the right to use water of the state when such use has been acquired by beneficial application of the water under the laws and rules and regulations of the state relating thereto. Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (Wyo. 1925).

Water rights are real property rights which become vested as of the time the application for appropriation is filed, if the right is adjudicated. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Where appropriation was made as of April 1887, and adjudicated by decree before statehood in 1889, for 7.2 cu. ft. of water to irrigate an unspecified 90 acres of land, which, used on certain lands for some years, was since 1930, transferred by use in part to other lands of same ownership, through an extension of original ditch, such appropriation, applied to a beneficial use, is a “property right” and cannot be abridged without infringing upon constitutional right of the owner. Hughes v. Lincoln Land Co., 27 F. Supp. 972, 1939 U.S. Dist. LEXIS 2772 (D. Wyo. 1939).

Water rights taxable as part of lands using water. —

Irrigation works located in Albany county which furnished water to 54,000 acres in Platte county under permitted appropriations for 63,500 acres were not proportionately taxable in Albany county where the evidence showed that there was not sufficient water to irrigate lands in excess of 54,000 acres, since water rights are only taxable along with and as a part of lands using the water. Wheatland Indus. Co. v. Johnson, 64 Wyo. 120, 186 P.2d 377, 1947 Wyo. LEXIS 25 (Wyo. 1947).

Only natural waters subject to appropriation. —

In view of art. 8, § 1, Wyo. Const., only waters of natural streams, springs or lakes are subject to appropriation. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

Where during course of 30 years seepage water flowing down a draw finally made a regular, natural stream with definite channels and banks, waters thereof are subject to appropriation. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

“Watercourse” defined. —

A “watercourse” is a stream of water usually flowing in a particular direction, with well defined banks and channels, but the water need not flow continuously, and the channel may sometimes be dry. State v. Hiber, 48 Wyo. 172, 44 P.2d 1005, 1935 Wyo. LEXIS 32 (Wyo. 1935).

Private waters cannot be appropriated. —

An attempted appropriation of waste and seepage waters, being private waters, is void. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

Seepage and waste water is private water so long as it is on the lands from which it originates and such water cannot be appropriated by adjoining landowners. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

Evidence failed to sustain state's contention that a draw is a natural stream, where it is dry most of the time, is covered with grass, and has no banks; and where so far as the evidence shows it has no natural outlet. State v. Hiber, 48 Wyo. 172, 44 P.2d 1005, 1935 Wyo. LEXIS 32 (Wyo. 1935).

Water rights not acquired by adverse possession. —

The court correctly dismissed a complaint seeking determination of ownership in water rights by virtue of adverse possession, for the simple reason that water rights may not be acquired by adverse possession or prescription in this state. Lewis v. State Bd. of Control, 699 P.2d 822, 1985 Wyo. LEXIS 483 (Wyo. 1985).

Beneficial use foundation of water rights. —

Beneficial use is the ultimate foundation of every water right under the priority of appropriation system prevailing in the arid states. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939).

Right to use of water may be acquired by priority of appropriation for beneficial purposes, in contravention of common-law rule that every riparian owner is entitled to continued natural flow of waters of the stream running through or adjacent to his lands. Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 1900 Wyo. LEXIS 8 (Wyo. 1900).

In Wyoming an appropriation which is not useful is of no effect for under the law of the state, beneficial use is the basis, measure and limit of all appropriation. Ide v. United States, 263 U.S. 497, 44 S. Ct. 182, 68 L. Ed. 407, 1924 U.S. LEXIS 2813 (U.S. 1924); John Meier & Son v. Horse Creek Conservation Dist., 603 P.2d 1283, 1979 Wyo. LEXIS 492 (Wyo. 1979).

Beneficial use is dependent upon particular circumstance of each case. John Meier & Son v. Horse Creek Conservation Dist., 603 P.2d 1283, 1979 Wyo. LEXIS 492 (Wyo. 1979).

Actual diversion of water is not necessary to appropriate water for beneficial use. In re General Adjudication of All Rights to Use Water in Big Horn River Sys., 835 P.2d 273, 1992 Wyo. LEXIS 71 (Wyo. 1992).

Right to appropriate water subject to rights of prior appropriators. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Right to use of water for beneficial purposes depends upon prior appropriation and it existed before there was any legislation upon the subject. Moyer v. Preston, 6 Wyo. 308, 44 P. 845, 1896 Wyo. LEXIS 17 (Wyo. 1896).

Quantity of water each appropriator is entitled to divert at any particular time is the quantity within the limits of the decree under the laws, reasonably necessary for the acreage stated in the decree. Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 92 P.2d 568, 1939 Wyo. LEXIS 21 (Wyo. 1939).

Point of diversion. —

City did not lose its adjudicated rights of priority under original appropriation by a mere change in point of diversion under adjudication by state board of control, where amount of water used by city after change exceeded flow in the entire watershed. Van Tassel Real Estate & Livestock Co. v. Cheyenne, 49 Wyo. 333, 54 P.2d 906, 1936 Wyo. LEXIS 49 (Wyo.), cert. denied, 299 U.S. 574, 57 S. Ct. 38, 81 L. Ed. 423, 1936 U.S. LEXIS 282 (U.S. 1936).

Appropriator of water for irrigation purposes is not entitled to change place of diversion, where the change would injuriously affect another appropriator, if at all. Groo v. Sights, 22 Wyo. 19, 134 P. 269, 1913 Wyo. LEXIS 37 (Wyo. 1913).

Duty of officers. —

It is duty of officers charged with superintendence of diversion of waters to make distribution in accordance with adjudications. Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 92 P.2d 568, 1939 Wyo. LEXIS 21 (Wyo. 1939).

Attachment to land. —

A water right upon land, which is mentioned in the application and permit for appropriation, becomes attached to that land when it is finally adjudicated and cannot be subsequently severed from it or conveyed in derogation of the rights of the state. White v. Board of Land Comm'rs, 595 P.2d 76, 1979 Wyo. LEXIS 415 (Wyo. 1979).

A water right, by direct flow from a stream, shall be attached to land to be irrigated, which must be designated from initiation of the right until it is perfected. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 1939 Wyo. LEXIS 37 (Wyo. 1939).

In absence of any permitted corrections an adjudicated water right becomes attached to lands as described in the application and permit. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 1939 Wyo. LEXIS 37 (Wyo. 1939).

And to government lands. —

Fact that lands belonging to defendant were government lands when appropriation was taken out is immaterial, if the lands were included in the appropriation and water beneficially applied to them. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939) (decided under prior law).

Nonriparian uses. —

Under doctrine of prior appropriation it is not essential to a water right that appropriator should apply the water upon riparian lands. Willey v. Decker, 11 Wyo. 496, 73 P. 210, 1903 Wyo. LEXIS 22 (Wyo. 1903).

Decreed amount of water may be prima facie evidence of appropriator's entitlement, but such evidence may be rebutted by showing actual historic beneficial use. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

And appropriator may not sell surplus water. —

As an appropriator of water obtains by his appropriation that only of which he makes a beneficial use, it necessarily follows that he cannot sell surplus water which he does not need, while retaining his original appropriations. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

As court will interfere on showing of waste. —

If a seller-appropriator or a buyer is shown to have committed waste, or that they intend the commission of waste, a court will interfere with their water rights. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Waters belong to the public, and an appropriator cannot acquire a right that permits him to use more than is reasonably necessary for beneficial purposes. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Reservoir rights were properly conveyed. —

Summary judgment was properly awarded to defendants in assignees' action challenging the validity of an easement, based on the fact that reservoir rights which were permitted for irrigation did not impact the ownership of the rights conveyed by the Wyoming State Board of Land Commissioners to the Wyoming Game and Fish Commission. Bentley v. Office of State Lands, 2007 WY 94, 160 P.3d 1109, 2007 Wyo. LEXIS 102 (June 8, 2007).

Wrongful use of water. —

Party has no right to irrigate land for which no appropriation has been taken out and owner of permit has no right to grant use of water for lands other than those to which appropriation applied since the water belongs to the state. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939).

Waste. —

Statute providing that no allotment of irrigation water shall exceed one cubic foot per second for each 70 acres of land (§ 41-4-317 ) is not a legislative declaration that use of water in excess thereof under an adjudication granting a larger amount is prima facie evidence of waste. Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 92 P.2d 568, 1939 Wyo. LEXIS 21 (Wyo. 1939).

Concept of beneficial use deemed continuing obligation. —

Beneficial use is not a concept which is considered only at the time an appropriation is obtained. The concept represents a continuing obligation which must be satisfied in order for the appropriation to remain viable. The state's abandonment statutes (§§ 41-3-401 and 41-3-402 ) are recognition of this requirement. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Supplemental water rights are subject to abandonment under §§ 41-3-401 and 41-3-402 . Hofeldt v. Eyre, 849 P.2d 1295, 1993 Wyo. LEXIS 69 (Wyo. 1993).

Ex parte proceedings. —

Holder of certificate of appropriation could not, in ex parte proceeding before state board of control, obtain an adjudication clarifying the certificate, but excluding from right to use water, lands of others included in the description contained in the certificate. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939).

Injunction denied. —

In suit to quiet title to certain irrigation waters, to which both plaintiff and defendant obtained title from same predecessor, and which defendant for more than 25 years had permissively used on land within original description of lands to be irrigated, an injunctional order denying defendant further use thereof will be denied. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939).

Board of control was not necessary party to appeal taken by a city from an order of the board granting the application of one desiring to appropriate water which the city claimed, notwithstanding § 41-4-517 , providing attorney general shall represent the board on such an appeal. Hunt v. Laramie, 26 Wyo. 160, 181 P. 137, 1919 Wyo. LEXIS 5 (Wyo. 1919), limited, Bower v. Big Horn Canal Ass'n, 77 Wyo. 80, 307 P.2d 593, 1957 Wyo. LEXIS 10 (Wyo. 1957).

Applied in

Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983).

Cited in

State v. Laramie Rivers Co., 59 Wyo. 9, 136 P.2d 487, 1943 Wyo. LEXIS 4 (1943); Nebraska v. Wyoming, 325 U.S. 589, 65 S. Ct. 1332, 66 S. Ct. 1, 89 L. Ed. 1815, 1945 U.S. LEXIS 2620 (1945); Biddick v. Laramie Valley Mun. Irrigation Dist., 76 Wyo. 67, 299 P.2d 1059, 1956 Wyo. LEXIS 31 (1956); In re Estate & Guardianship of Johnson, 78 Wyo. 199, 322 P.2d 145 (1958); Bales v. Ankney, 382 P.2d 386, 1963 Wyo. LEXIS 92 (Wyo. 1963); Goshen Irrigation Dist. v. Wyoming State Bd. of Control, 926 P.2d 943, 1996 Wyo. LEXIS 158 (Wyo. 1996); In re Gen. Adjudication of All Rights, 2004 WY 21, 85 P.3d 981, 2004 Wyo. LEXIS 28 (2004).

Law reviews. —

For address, “Decrees in Interstate Water Suits,” see 1 Wyo. L.J. 13.

For article “Rights of Wyoming Appropriators in Underground Water,” see 1 Wyo. L.J. 111.

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200.

For article, “The Concept of Reasonable Beneficial Use in the Law of Surface Streams,” see 12 Wyo. L.J. 1 (1957).

For note, “Forfeiture of Water Rights in Wyoming,” see 14 Wyo. L.J. 51 (1959).

For article, “Law, Water and People: The Role of Water Law in Conserving and Developing Natural Resources in the West,” see 18 Wyo. L.J. 3 (1963).

For article, “Priority and Progress — Case Studies in the Transfer of Water Rights,” see I Land & Water L. Rev. 1 (1966).

For comment, “Water Appropriation for Recreation,” see I Land & Water L. Rev. 209 (1966).

For article, “Legal Aspects of Weather Modification Snowpack Augmentation in Wyoming,” see II Land & Water L. Rev. 273 (1967).

For article, “Transfer of Water Rights — Errata and Addenda — Sales for Recreational Purposes and to Districts,” see II Land & Water L. Rev. 321 (1967).

For comment, “Improvement of Existing Water Rights Through Unification — A Case Study on the Consolidation of Appropriations,” see II Land & Water L. Rev. 327 (1967).

For comment, “The Federal Reserved Water Doctrine — Application to the Problem of Water for Oil Shale Development,” see III Land & Water L. Rev. 75 (1968).

For comment, “Determining Quantity in Irrigation Appropriations,” see IV Land & Water L. Rev. 501 (1969).

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

For comment, “The Transfer of Water Rights for Use in the Oil Industry,” see V Land & Water L. Rev. 441 (1970).

For article, “Geothermal Resources: A Primer for the Practitioner,” see IX Land & Water L. Rev. 327 (1974).

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?,” see X Land & Water L. Rev. 119 (1975).

For comment, “Changing Manner and Place of Use of Water Rights in Wyoming,” see X Land & Water L. Rev. 455 (1975).

For comment, “Water Saved or Water Lost: The Consequences of Individual Conservation Measures in the Appropriation States,” see XI Land & Water L. Rev. 435 (1976).

For comment, “Water Law — Cessation of Return Flow as a Means of Complying with Pollution Control Laws,” see XII Land & Water L. Rev. 431 (1977).

For comment, “Statutory Recognition of Instream Flow Preservation: A Proposed Solution for Wyoming,” see XVII Land & Water L. Rev. 139 (1982).

For comment, “Sporhase v. Nebraska ex rel. Douglas: State Control of Water Under the Constraints of the Commerce Clause,” see XVIII Land & Water L. Rev. 513 (1983).

For casenote, “Water Law — The State Engineer's Authority with Reference to Change of Use, Place of Use, Point of Diversion, and Means of Conveyance of Water Embraced by Water Permits: Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983),” see XIX Land & Water L. Rev. 59 (1984).

For casenote, “Water Rights — Impairment of Existing Water Rights Under the Wyoming Watershed Act: Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 656 P.2d 1144, 1983 Wyo. LEXIS 270 (Wyo. 1983),” see XIX Land & Water L. Rev. 83 (1984).

For casenote, “Water Law — Standing Requirement Under the Wyoming Forfeiture Statute: Platte County Grazing Association v. State Board of Control, 675 P.2d 1279, 1984 Wyo. LEXIS 244 (Wyo. 1984),” see XIX Land & Water L. Rev. 485 (1984).

For comment, “Forfeiture Proceedings in Wyoming Water Law: The Legislature Revives Private Standing,” see XX Land & Water L. Rev. 459 (1985).

For comment, “Wyoming's New Instream Flow Act: An Administrative Quagmire,” see XXI Land & Water L. Rev. 455 (1986).

For article, “The Complexities of Managing Hydrologically Connected Surface Water and Groundwater Under the Appropriation Doctrine,” see XXII Land & Water L. Rev. 63 (1987).

For article, “Aldo Leopold and Western Water Law: Thinking Perpendicular to the Prior Appropriation Doctrine,” see XXIV Land & Water L. Rev. 1 (1989).

For casenote, “Water Law — Drawing the Line on Indian Reserved Water Rights: No ‘Super-Walton’ Rights in Wyoming's Big Horn River System. In re The General Adjudication of All Rights to Use Water in the Big Horn River System and All Other Sources, State of Wyoming, 899 P.2d 848, 1995 Wyo. LEXIS 118 (Wyo. 1995),” see XXXI Land & Water L. Rev. 425 (1996).

For article, "Establishing Appropriate Water Quality Numeric StandardsUnder the Clean Water Act; Lessons From a Case Study of Coalbed MethaneProduced Water Discharge to the Powder River, Wyoming and Montana”, see 11 Wyo. L. Rev. 1 (2011).

Am. Jur. 2d, ALR and C.J.S. references. —

Remedy of tenant against stranger for wrongful pollution of waters, 12 ALR2d 1192.

Liability for pollution of stream by oil, water or the like flowing from well, 19 ALR2d 1025.

Right of riparian owner to continuation of periodic and seasonal overflow from stream under doctrine of appropriation, 20 ALR2d 633.

Liability for overflow or escape of water from excavation made in course of construction, 23 ALR2d 827.

Loss of private easement with respect to waters by nonuser, 25 ALR2d 1265.

Liability for damages from obstruction of stream by debris or waste, 29 ALR2d 447.

Liability of person obstructing stream, ravine, or similar area by debris or waste, for damages caused by flooding or the like, 29 ALR2d 447.

Liability of landowner for damages caused by overflow, seepage, or the like, resulting from defect in artificial underground drain, conduit or pipe, 44 ALR2d 960.

Applicability of rules of accretion and reliction so as to confer title to additions upon owner of island or bar in navigable stream, 54 ALR2d 643.

Relative riparian or littoral rights respecting the removal of water from a natural, private, nonnavigable lake, 54 ALR2d 1450.

Acquisition by adverse possession or use of public property held by governmental unit, 55 ALR2d 554.

Easement by prescription in artificial drains, 55 ALR2d 1144.

Grants and reservations as affecting validity of regulation of bathing, swimming, boating, fishing or the like to protect public water supply, 56 ALR2d 790.

Rights of boating and fishing or the like on inland lakes, 57 ALR2d 569.

Right of public in shore of inland navigable lakes between high and low water marks, 40 ALR3d 776.

Modern status of rules governing interference with drainage of surface waters, 93 ALR3d 1193.

Extinguishment by prescription of natural servitude for drainage of surface waters, 42 ALR4th 462.

Liability for diversion of surface water by raising surface level of land, 88 ALR4th 891.

Library References. —

American Law of Mining, 2nd Edition § 113.02 (Matthew Bender).

§ 41-3-102. Preferred uses; defined; order of preference.

1. Water rights are hereby defined as follows according to use: preferred uses shall include rights for domestic and transportation purposes, steam power plants, and industrial purposes; existing rights not preferred, may be condemned to supply water for such preferred uses in accordance with the provisions of the law relating to condemnation of property for public and semi-public purposes except as hereinafter provided.
2. Preferred water uses shall have preference rights in the following order:
   1. Water for drinking purposes for both man and beast;
   2. Water for municipal purposes;
   3. Water for the use of steam engines and for general railway use, water for culinary, laundry, bathing, refrigerating (including the manufacture of ice), for steam and hot water heating plants, and steam power plants; and
   4. Industrial purposes.
3. The use of water for irrigation shall be superior and preferred to any use where water turbines or impulse water wheels are installed for power purposes; provided, however, that the preferred use of steam power plants and industrial purposes herein granted shall not be construed to give the right of condemnation.

History. Laws 1909, ch. 68, § 2; C.S. 1910, § 725; C.S. 1920, § 833; R.S. 1931, § 122-402; C.S. 1945, § 71-402; Laws 1955, ch. 227, § 1; 1957, ch. 116, § 1; W.S. 1957, § 41-3.

Subject to governmental limitations, actual usability of waters is limit of public's right. —

This section indicates the legislature was aware that, without regard to their being navigable or nonnavigable in the federal sense or any other concept of navigability, its waters were usable for purposes other than irrigation, consumption, power or mining, and the waters might be used for transportation by flotation. So it would seem that subject to whatever statutory limitations may be imposed by the state on such use, or by the federal government when interstate or international rights are involved, the actual usability of the waters is alone the limit of the public's right to so employ them. Day v. Armstrong, 362 P.2d 137, 1961 Wyo. LEXIS 97 (Wyo. 1961).

Priority includes quality. —

Priority of right in water includes quality as well as quantity and an oil producer has no right to deteriorate quality of water in stream as against persons lower down having priority, even though there is no negligence. Sussex Land & Live Stock Co. v. Midwest Refining Co., 294 F. 597, 1923 U.S. App. LEXIS 2531 (8th Cir. Wyo. 1923).

Change in permit not condemnation. —

An action to change water permits from a beneficial to a preferred use for municipal purposes is not a condemnation proceeding under this section. Town of Newcastle v. Smith, 28 Wyo. 371, 205 P. 302, 1922 Wyo. LEXIS 29 (Wyo. 1922).

Cited in

Groo v. Sights, 22 Wyo. 19, 134 P. 269, 1913 Wyo. LEXIS 37 (1913).

Law reviews. —

For article, “The Concept of Beneficial Use in the Law of Surface Streams,” see 12 Wyo. L.J. 1 (1957).

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?,” see X Land & Water L. Rev. 119 (1975).

For comment, “Changing Manner and Place of Use of Water Rights in Wyoming,” see X Land & Water L. Rev. 455 (1975).

For casenote, “Water Rights — Impairment of Existing Water Rights Under the Wyoming Watershed Act: Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 656 P.2d 1144, 1983 Wyo. LEXIS 270 (Wyo. 1983),” see XIX Land & Water L. Rev. 83 (1984).

Library References. —

American Law of Mining, 2nd Edition § 113.02 (Matthew Bender).

§ 41-3-103. Preferred uses; procedure for change of use.

Where it can be shown to the board of control under the provisions hereof [§§ 41-3-101 through 41-3-103 ], that a preferred use is to be made, the procedure for a change of such use shall embrace a public notice, an inspection and hearing if necessary by and before the proper division superintendent, a report of such superintendent to the board of control, and an order by said board. If the change of use is approved, just compensation shall be paid and under the direction of the board, proper instruments shall be drawn and recorded.

History. Laws 1909, ch. 68, § 3; C.S. 1910, § 726; C.S. 1920, § 834; R.S. 1931, § 122-403; C.S. 1945, § 71-403; W.S. 1957, § 41-4.

Cross references. —

As to water rights appurtenant to lands to be subdivided, see § 18-5-306 .

Repealing clauses. —

Laws 1909, ch. 68, § 4, repealed Laws 1905, ch. 97.

Cited in

Groo v. Sights, 22 Wyo. 19, 134 P. 269, 1913 Wyo. LEXIS 37 (1913).

Law reviews. —

For comment, “Changing Manner and Place of Use of Water Rights in Wyoming,” see X Land & Water L. Rev. 455 (1975).

For casenote, “Water Rights — Impairment of Existing Water Rights Under the Wyoming Watershed Act: Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 656 P.2d 1144, 1983 Wyo. LEXIS 270 (Wyo. 1983),” see XIX Land & Water L. Rev. 83 (1984).

Library References. —

American Law of Mining, 2nd Edition § 113.02 (Matthew Bender).

§ 41-3-104. Procedure to change use or place of use.

1. When an owner of a water right wishes to change a water right from its present use to another use, or from the place of use under the existing right to a new place of use, he shall file a petition requesting permission to make such a change. The petition shall set forth all pertinent facts about the existing use and the proposed change in use, or, where a change in place of use is requested, all pertinent information about the existing place of use and the proposed place of use. The board may require that an advertised public hearing or hearings be held at the petitioner’s expense. The petitioner shall provide a transcript of the public hearing to the board. The change in use, or change in place of use, may be allowed, provided that the quantity of water transferred by the granting of the petition shall not exceed the amount of water historically diverted under the existing use, nor exceed the historic rate of diversion under the existing use, nor increase the historic amount consumptively used under the existing use, nor decrease the historic amount of return flow, nor in any manner injure other existing lawful appropriators. The board of control shall consider all facts it believes pertinent to the transfer which may include the following:
   1. The economic loss to the community and the state if the use from which the right is transferred is discontinued;
   2. The extent to which such economic loss will be offset by the new use;
   3. Whether other sources of water are available for the new use.
2. In all cases where the matter of compensation is in dispute, the question of compensation shall be submitted to the proper district court for determination.

History. Laws 1973, ch. 170, § 1; W.S. 1957, § 41-4.1; Laws 1974, ch. 23, § 1.

Legislative purpose of section is to provide a procedure for those wishing to change a water right and to place limitations on the amount of water which can be transferred. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Permitted changes. —

This section permits all changes of water rights to new uses or places of use that do not injure other appropriators or increase the historic use of water in quantity, rate of diversion or amount of consumption. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Wyoming State Board of Control did not err in granting applicants' petition to change the place of use, point of diversion, and means of conveyance for water appropriations because the Board's decision was consistent with the law; as reduced, the transferred water right would not exceed the amount of water historically diverted under the existing use, nor exceed the historic rate of diversion under the existing use. Garber v. Wagonhound Land & Livestock Co., 2012 WY 89, 279 P.3d 525, 2012 Wyo. LEXIS 94 (Wyo. 2012).

Transfer not to injure other appropriators. —

In a situation where the grantor of an irrigation water right sells to a grantee who intends to make the same use of the right, in circumstances where evidence of surplus and waste is not present and therefore there is no issue of beneficial and/or consumptive use, and in circumstances where there are no statutory inhibitions against the sale, the only limitation upon such a transfer of a water right from the land to which it was first applied is that it shall not injuriously affect the rights of other appropriators. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Beneficial use limitation. —

While one of the fundamental principles applicable to any transfer of water rights for change in use is the avoidance of injury, equally fundamental is the principle which holds that an appropriator obtains a transferable water right only to the extent that he has put his appropriation to a beneficial use. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Only water which has been beneficially applied is subject to sale and transfer. Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983).

Meaning of “consumptive use” limitation. —

For the purposes of transferring an irrigation water right, the concept of consumptive use has been consistently limited to the amount of water, less other contributing sources of water, which will result in the successful growing of a crop and, in a proper case, consideration should also be given to the amount of water lost by evaporation and seepage while the water is in transit from the headgate to the place of use. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Concepts of “beneficial use” and “consumptive use” compared. —

See Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

“Duty of water” discussed. —

See Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Senior appropriator, not lower landowner, has right to waste and seepage. —

A senior appropriator has the right to recapture waste and seepage water. The lower landowner using such water merely takes his chances as to future supplies, no matter how long he uses such water. Thayer v. Rawlins, 594 P.2d 951, 1979 Wyo. LEXIS 407 (Wyo. 1979).

No right to transfer historically wasted waters. —

Where the board finds that excess waters below the divide have historically gone to waste, a petitioner can acquire no right to that excess; and, as a result, petitioner's argument that a denial of the right to transfer such waters is a taking without due process is without merit. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Or abandoned waters. —

If an appropriator, either by misuse or failure to use, has effectively abandoned either all or part of his water right through noncompliance with the beneficial-use requirements imposed by law, he cannot effect a change of use or place of use for that amount of his appropriation which has been abandoned. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Historic-use concept applicable only within confines of adjudicated water right. —

The historic-use concept is applicable only within the confines of an adjudicated water right — there to be considered for the purpose of ascertaining whether or not the historic beneficial use of the right is as great as or less than the amount contemplated by the adjudication by which it was originally authorized. This concept is not intended to permit the enlargement of a water right because the upper limit of a water right is that amount which has been adjudicated. Petition for Change in Use & for Change in Place of Use for Ekxtrom No. 1 Well, etc. v. State Bd. of Control, 649 P.2d 657, 1982 Wyo. LEXIS 365 (Wyo. 1982).

Junior appropriators have vested rights in continuation of natural stream conditions existing at the time of their appropriations, thus entitling them to resist changes in points of diversion or use which materially affect their rights. Thayer v. Rawlins, 594 P.2d 951, 1979 Wyo. LEXIS 407 (Wyo. 1979).

Changes in points of discharge of sewage are not governed by same rules as changes in points of diversion. Thayer v. Rawlins, 594 P.2d 951, 1979 Wyo. LEXIS 407 (Wyo. 1979).

Rights of water importer. —

An importer of water has the right to reuse, successively use and make disposition of imported water, subject to contrary contractual obligations. Thayer v. Rawlins, 594 P.2d 951, 1979 Wyo. LEXIS 407 (Wyo. 1979).

Importer's water use rights not subject to abandonment. —

In the imported water context the importer's unrestricted right to reuse, successively use and make disposition of imported water is usually not subject to abandonment. Thayer v. Rawlins, 594 P.2d 951, 1979 Wyo. LEXIS 407 (Wyo. 1979).

Unrestricted city right to imported waters. —

Where a city has the unrestricted right to reuse, successively use and make disposition of certain imported waters, there is nothing for the state engineer or the board to consider. Thayer v. Rawlins, 594 P.2d 951, 1979 Wyo. LEXIS 407 (Wyo. 1979).

Only board may assert right to adjudicate claim of change of use. State by Christopulos v. Husky Oil Co., 575 P.2d 262, 1978 Wyo. LEXIS 268 (Wyo. 1978).

Under this section, the state engineer has no adjudicatory capacity with respect to the question whether a company's proposed action represents a change or expansion of use, and if anyone other than a court has original or primary jurisdiction of that question, it is the board of control. State by Christopulos v. Husky Oil Co., 575 P.2d 262, 1978 Wyo. LEXIS 268 (Wyo. 1978).

State engineer's error-correcting discretion under § 41-4-514(a) must be limited to the correction of such errors as are contained in the original permit, as those errors are established by proof that the permit was not originally, or by any valid extension, issued in conformity with the intent of the applicant and/or the state engineer. Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983).

Board necessary party to action. —

In an action by an oil refiner for declaration that its plan to impound and recycle effluent water, being the water remaining after use in its refinery process of water which it purchased from a city, was not subject to the jurisdiction and control of the state engineer and the board of control, and that the proposed use did not infringe on any rights of downstream water appropriators, the board and the city were necessary and indispensable parties to the action, and the cause should not proceed without their joinder. State by Christopulos v. Husky Oil Co., 575 P.2d 262, 1978 Wyo. LEXIS 268 (Wyo. 1978).

Deference to board on factual matters. —

With respect to factual matters, the court has always accorded deference to the board's peculiar knowledge and expertise, as well as the realities and records pertaining to the use or nonuse of water. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Stated in

In re The General Adjudication of All Rights to Use Water in the Big Horn River System and All Other Sources, State of Wyoming, 835 P.2d 273, 1992 Wyo. LEXIS 71 (Wyo. 1992).

Law reviews. —

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?,” see X Land & Water L. Rev. 119 (1975).

For comment, “Changing Manner and Place of Use of Water Rights in Wyoming,” see X Land & Water L. Rev. 455 (1975).

For article, “Industrial Siting Legislation: The Wyoming Industrial Development Information and Siting Act — Advance or Retreat?” see XI Land & Water L. Rev. 27 (1976).

For case note, “Importation Doctrine Applied to Water Transfers Within a River System: A Step Too Far,” see XV Land & Water L. Rev. 99 (1980).

For comment, “Statutory Recognition of Instream Flow Preservation: A Proposed Solution for Wyoming,” see XVII Land & Water L. Rev. 139 (1982).

For comment, “Sporhase v. Nebraska ex rel. Douglas: State Control of Water Under the Constraints of the Commerce Clause,” see XVIII Land & Water L. Rev. 513 (1983).

For casenote, “Water Law — The State Engineer's Authority with Reference to Change of Use, Place of Use, Point of Diversion, and Means of Conveyance of Water Embraced by Water Permits: Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983),” see XIX Land & Water L. Rev. 59 (1984).

For casenote, “Water Rights — Impairment of Existing Water Rights Under the Wyoming Watershed Act: Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 656 P.2d 1144, 1983 Wyo. LEXIS 270 (Wyo. 1983),” see XIX Land & Water L. Rev. 83 (1984).

For comment, “Wyoming's New Instream Flow Act: An Administrative Quagmire,” see XXI Land & Water L. Rev. 455 (1986).

For article, “Waist Deep in the Big Muddy: Property Rights, Public Values and Instream Waters,” see XXVI Land & Water L. Rev. 535 (1991).

For case note, “Water Law—Indian Law—Cowboys, Indians and Reserved Water Rights: May a State Court Limit How Indian Tribes Use Their Water? In re The General Adjudication of All Rights to Use Water in the Big Horn River System and All Other Sources, State of Wyoming, 835 P.2d 273, 1992 Wyo. LEXIS 71 (Wyo. 1992),” see XXVIII Land & Water L. Rev. 467 (1993).

§ 41-3-105. [Repealed.]

Repealed by Laws 1983, ch. 167, § 2.

Editor's notes. —

This section, which derived from Laws 1974, ch. 23, § 2, related to use of water outside state.

§ 41-3-106. Procedure to exchange water; delivery of water under exchanges; approval of state engineer; enforcement of exchanges.

1. Any appropriator owning a valid water right in and to the use of the ground, surface or reservoir waters of the state, where the source of the appropriation is at times insufficient to fully satisfy such appropriation, or better conservation and utilization of the state’s water can be accomplished, or the appropriator can develop appropriable water but cannot economically convey it to its point of use, may petition the state engineer for an order allowing an exchange and the use of stored, direct flow, or ground water from another source. If such an appropriator arranges by agreement with another appropriator for the delivery and use of either stored, direct flow, or ground water from another source, the exchange agreement shall accompany the petition.
2. Exchanges may be allowed among any combination of direct flow, storage, and groundwater rights. Petitions for exchanges shall be accompanied by such maps, plans or other information as may be required by the state engineer. The proper filing and recording fees shall accompany the petition.
3. No exchange shall be allowed until the state engineer has entered an order granting the exchange. Documents drawn in connection with exchanges may be recorded in one (1) or more counties where any part of the land involved is situated. No exchange may be terminated without the issuance of an order approving termination, unless the order allowing the exchange provides for termination on a specified date.
4. It is the policy of the state to encourage exchanges. The state engineer shall not issue an exchange order if it appears that the proposed exchange would adversely affect other appropriators, or if the proposed exchange would, in the opinion of the state engineer, be too difficult to administer or would be adverse to the public interest. All exchanges are subject to the requirements of beneficial use and equality of water exchanged, and no exchange will be allowed unless a sufficient quantity of makeup water is introduced to replace the water diverted and withdrawn under the exchange. In making the determination of equality and sufficiency of the makeup water introduced, the state engineer may consider relative consumptive uses and transmission losses.
5. Any water made available to an appropriator by reason of any exchange agreement shall be delivered for the use of the appropriator in accordance with the order allowing the exchange, and its use is without prejudice to, but in enjoyment of, the rights of all appropriators under their original appropriations.
6. Performances of each exchange shall be enforced by the water administration officials of the state in accordance with the terms and conditions of the order allowing the exchange. The state engineer may adopt such rules and regulations as are necessary to enable him to efficiently administer this section.
7. The state engineer shall assess a fee not to exceed fifty dollars ($50.00) for his review, and approval of exchange petitions. This fee shall accompany an exchange petition and shall be retained and deposited whether the petition or request is approved or denied.

History. Laws 1947, ch. 116, § 1; W.S. 1957, § 41-5; Laws 1973, ch. 160, § 1; 1979, ch. 56, § 1; 1993, ch. 123, § 1.

Quoted in

In re Owl Creek Irrigation Dist., 71 Wyo. 30, 253 P.2d 867, 1953 Wyo. LEXIS 3 (1953).

Law reviews. —

For article, “Underground Water,” see 4 Wyo. L.J. 193.

§ 41-3-107. Submerged lands; petition for change of water rights; conditions; hearing; fees.

1. The state board of control may, upon the written petition of the owners of an adjudicated water right, or water rights appurtenant to lands submerged by the construction of reservoirs in the state of Wyoming, issue amended certificates of appropriation of water and change the point of diversion and means of conveyance for such adjudicated appropriations of water for the irrigation of other lands in the state of Wyoming outside of the reservoir basin in lieu of the submerged lands, without loss of priority; provided:
   1. The appropriation shall be from the same source of supply;
   2. The irrigated acreage shall include not only new land within the state of Wyoming having no original direct flow water right but also lands within the same drainage area having water rights from another source and which have a need for supplemental water, but in no event shall such right and use so changed exceed in amount of water that of the rights which are being changed;
   3. Such change of water rights be made within five (5) years from the date that construction of the reservoir dam has been completed. If such change is not applied for by the owner or his successors in interest within the five (5) year period such water rights shall become automatically abandoned and the water shall be distributed in order of priority on the stream. Such automatic abandonment shall apply only to lands inundated at and below the high water line of reservoirs. The board of control shall enter an order abandoning the water rights upon a determination that an abandonment has occurred;
   4. The change can be made only on condition that it does not injuriously affect the rights of other Wyoming appropriators.
2. After receipt of a petition for such change the state board of control shall cause a public hearing to be held on the petition before the superintendent of the water division in which such appropriation is located, with notice of the hearing to be advertised in at least one (1) issue of a newspaper having general circulation in the community where the water right involved is located. The petitioner shall pay the cost of publication prior to the time of hearing and shall provide a stenographic record of the proceedings, which shall be transmitted by the division superintendent to the state board of control with his report. A fee not to exceed fifty dollars ($50.00) for issuance and recording of each amended certificate of appropriation of water shall be collected by the state board of control at the time of filing of the petition and the board shall also require a deposit of sufficient funds to cover the cost of preparing and recording a certified copy of the order of the board granting the petition.
3. The owners of lands coming under the provisions of this section may sell or convey lands submerged or to be submerged by any such reservoir with provisions in the deed or other conveyance that the water rights appurtenant thereto may be detached and transferred as provided herein.

History. Laws 1951, ch. 60, § 1; 1953, ch. 190, § 1; 1957, ch. 81, § 1; W.S. 1957, § 41-9; Laws 1961, ch. 159, § 1; 1979, ch. 56, § 1; 1993, ch. 123, § 1.

Where junior water right would inundate senior water right, and thus would “impair” the senior right, this section specifically provides a remedy as it permits the sale or transfer of the senior right without interference with its priority. Associated Enters. v. Toltec Watershed Improvement Dist., 578 P.2d 1359, 1978 Wyo. LEXIS 293 (Wyo. 1978).

No automatic transfer of water rights upon condemnation. —

A landowner's water rights did not automatically transfer to the watershed improvement district upon condemnation of the land for use as a reservoir, and the landowner was therefore permitted to seek a transfer of its water to lands outside the reservoir basin. Toltec Watershed Imp. Dist. v. Associated Enters., Inc., ex rel. Johnston, 829 P.2d 819, 1992 Wyo. LEXIS 48 (Wyo. 1992).

Quoted in

Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 656 P.2d 1144, 1983 Wyo. LEXIS 270 (Wyo. 1983).

Law reviews. —

For casenote, “Water Rights — Impairment of Existing Water Rights Under the Wyoming Watershed Act: Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 656 P.2d 1144, 1983 Wyo. LEXIS 270 (Wyo. 1983),” see XIX Land & Water L. Rev. 83 (1984).

§ 41-3-108. Lands taken out of agricultural production or lands taken by eminent domain; retention of priority.

1. Where lands are taken out of agricultural production as the necessary result of acquisitions for railroad roadbed construction, highway construction, mining or petroleum extraction operations or industrial site acquisitions or lands taken by proceedings in eminent domain or which have become impracticable to irrigate by reason of any of the foregoing conditions, the owner of an affected water right may transfer the water right to other lands held by the owner. The petition for the change in use, or change in place of use shall be properly filed within five (5) years of the date the land went out of production because of any of the conditions specified herein. Failure to file the petition within five (5) years results in forfeiture of the right except as otherwise provided.
2. The petition for a change in use, or change in place of use, of a water right under this section shall retain its original date of priority.
3. For a period of five (5) years after the effective date of this act, any appropriator whose land has been out of production for more than five (5) years may petition the board requesting transfer of the water rights involved. The granting or denial of a petition under these circumstances is within the discretion of the board. The decision of the board may be appealed to the district court. The board may hold public hearings in connection with a petition being considered pursuant to this section. All costs in conjunction with the hearing shall be borne by the petitioner.

History. Laws 1973, ch. 189, § 1; W.S. 1957, § 41-9.1; Laws 2004, ch. 130, § 1.

The 2004 amendment, in (a), inserted “the owner of an affected water right” following “of the foregoing conditions.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

Editor's notes. —

Laws 1973, ch. 189, carried no provision as to its effective date, but was enacted at a session that adjourned on February 24, 1973. See § 8-1-108 .

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Cited in

Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

§ 41-3-109. Construction of W.S. 41-3-107.

The provisions of this act [§§ 41-3-107 , 41-3-109 ] shall be valid notwithstanding the provisions of W.S. 41-3-101 .

History. Laws 1951, ch. 60, § 2; W.S. 1957, § 41-10.

§ 41-3-110. Right to acquire temporary water rights for highway or railroad roadbed construction or repair; application; restrictions; fee.

1. Any person shall have the right to acquire by purchase, gift or lease the right to the use of water which may be embraced in any adjudicated or valid unadjudicated water right, or any portion thereof, for a period of not to exceed two (2) years, for highway construction or repair, railroad roadbed construction or repair, drilling and producing operations, or other temporary purposes, on its own behalf or on behalf of its agents, employees or contractors: provided, that if the proposed use is to be for public highway construction or repair under a contract with the state department of transportation, only the state transportation commission shall have the authority to acquire the water; and the state transportation commission shall have the sole and continuing responsibility for the acquisition, including the payment of all fees, royalties and other consideration for the use of and access to water and the right to acquire the rights to use shall not be delegated to a construction contractor or other third party; and further provided, that any temporary transfer shall be allowed only if no other appropriator is injured thereby.
2. Before any right to such use shall become operative, an application must be made in writing on a form provided or designated by the state engineer, with a copy of any conveyance or agreement provided, and it shall be filed in the office of the state engineer for his ratification and approval. Upon approval by the state engineer, an order authorizing such use and designating the method, place, and period of use may be entered. No loss, abandonment or impairment of such water rights shall occur or attach as a result of such change or use, except as provided by said conveyance or agreement and order of the state engineer, and upon termination of the temporary diversion and use, as stated in the order, any affected right to the use of water shall automatically be reinvested with all the rights, privileges and uses, and purposes theretofore held and enjoyed.
3. Only that portion of a water right so acquired which has been consumptively used under the historical use made of the water right, may be diverted by a temporary user. In determining the consumptive use of water rights for the direct use of the natural unstored flow of any stream for irrigation purposes, the return flow from those rights shall be presumed to be fifty percent (50%). In those situations where an assumption of fifty percent (50%) return flow would be significantly in error, the state engineer shall have the prerogative of making a determination of the actual amount of return flow, and the amount of water which can be diverted for the temporary use provided herein shall be adjusted accordingly. The actual historic return flow, or the assumed return flow of fifty percent (50%) will be left in the stream for the use of downstream appropriators. The foregoing formula and procedure for the determination of consumptive use and return flow shall be limited to this section and shall have no application to any other statute of the state of Wyoming. Nothing herein contained shall be treated or construed as changing the prior use of water held by said owner or owners and as provided by the laws of the state of Wyoming.
4. The state engineer shall assess a fee not to exceed one hundred dollars ($100.00) for his review and approval of temporary water agreements. This fee shall accompany the agreement application and shall be retained and credited to the general fund whether the agreement or request is approved or denied.

History. Laws 1959, ch. 148, § 1; W.S. 1957, § 41-10.1; Laws 1969, ch. 170, § 1; 1971, ch. 193, § 1; 1979, ch. 56, § 1; 1991, ch. 241, § 3; 1993, ch. 123, § 1; 2005, ch. 15, § 2.

The 2005 amendment, effective July 1, 2005, in (b), in the first sentence inserted “or designated” and substituted “provided” for “attached.”

Law reviews. —

For article, “The Challenge of Mine Dewatering to Western Water Law and the New Mexico Response,” see XV Land & Water L. Rev. 445 (1980).

§ 41-3-111. Right to acquire temporary water rights for highway or railroad roadbed construction or repair; right of owner who cannot satisfy in full his right during time of diversion.

The owner of any permanent water right, whether prior or subsequent in priority to that temporary right acquired by any person under this act [§§ 41-3-110 through 41-3-113 ] who cannot satisfy in full his right during the time said temporary user is diverting water under its temporary water right shall have the absolute right upon demand being made upon the appropriate state water commissioner to cause such diversion to be shut off until such time as said owner’s water right is satisfied, or until it is proven that the shutting down of the diversion has no effect upon owner’s right.

History. Laws 1959, ch. 148, § 2; W.S. 1957, § 41-10.2; Laws 1969, ch. 170, § 2; 1971, ch. 193, § 2.

Law reviews. —

For casenote, “Water Rights — Impairment of Existing Water Rights Under the Wyoming Watershed Act: Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 656 P.2d 1144, 1983 Wyo. LEXIS 270 (Wyo. 1983),” see XIX Land & Water L. Rev. 83 (1984).

§ 41-3-112. Right to acquire temporary water rights for highway or railroad roadbed construction or repair; wrongfully causing diversion to be shut down.

It shall be unlawful for any person to wrongfully cause a diversion made under a temporary water right required under and by virtue of this act to be shut down. Any violation of this section shall be punishable pursuant to W.S. 41-3-616 .

History. Laws 1969, ch. 170, § 3; W.S. 1957, § 41-10.2:1; Laws 2005, ch. 82, § 2.

The 2005 amendment, effective July 1, 2005, rewrote the section, which formerly provided that wrongfully causing a shut down of a diversion was a misdemeanor, punishable by a fine not to exceed $100 for each day of the shut down.

§ 41-3-113. Supplemental supply water rights.

A supplemental supply water right is defined as a permit or certificate of appropriation for the diversion, from a stream, of water from a new source of supply for application to lands for which an appropriation of water from a primary source already exists. Such supplemental supply permits or certificates of appropriation may be allowed by the state engineer or the state board of control under such regulations or conditions as he or it may prescribe. The use and administration of presently existing rights for supplemental supply appropriations or rights for supplemental supply appropriations hereafter acquired shall hereafter be made upon the express condition that the total amount of water to be diverted at any one (1) time both under a primary appropriation of water and a supplemental supply appropriation shall not be in excess of one (1) cubic foot of water per second of time for each seventy (70) acre tract so irrigated, except that when the right to divert water under the provisions of W.S. 41-4-317 through 41-4-324 , is permitted the total amount of surplus water to be diverted at any one (1) time both under a primary appropriation of water and a supplemental supply appropriation shall not be in excess of one (1) cubic foot of water per second for each seventy (70) acre tract so irrigated. Nothing herein shall be construed to apply to water stored under a reservoir permit.

History. Laws 1965, ch. 136, § 1; W.S. 1957, § 41-10.3.

Law reviews. —

For comment, “Determining Quantity in Irrigation Appropriations,” see IV Land & Water L. Rev. 501 (1969).

For casenote, “Water Law — Standing Requirement Under the Wyoming Forfeiture Statute: Platte County Grazing Association v. State Board of Control, 675 P.2d 1279, 1984 Wyo. LEXIS 244 (Wyo. 1984),” see XIX Land & Water L. Rev. 485 (1984).

§ 41-3-114. Petition to change point of diversion or means of conveyance.

1. Any person entitled to the beneficial use of water, whether under a permit issued by the state engineer or a certificate of appropriation issued by the board of control pursuant to W.S. 41-4-511 , who desires to change the point of diversion or means of conveyance, or both, shall file a petition with:
   1. The board of control if the use of the water has been adjudicated under a certificate of appropriation;
   2. The state engineer in all other cases. The state engineer may consider a petition even if water has not been applied to beneficial use however, any change in point of diversion granted by the state engineer shall be in the vicinity of the original diversion, and provided:
      1. The change shall not alter the original project concept; and
      2. The water shall be diverted from the same source of supply described in the original permit.
2. Petitions for change in point of diversion shall be in affidavit form and shall set forth the name and address of the petitioner, the name of the ditch, pipeline, or other facility, the stream from which water is appropriated, the date of priority and the amount of the appropriation to be changed, permit number, ownership of appropriation, and the location of the present and the proposed new point of diversion by course and distance from a corner of the public land survey. If for irrigation, petitions shall describe the acreage irrigated in each legal subdivision, the reason for the proposed change, and state whether any other appropriator from the same source will be injured in any way, and whether the consent of all owners of intervening diversions has been obtained. The petition shall be accompanied by satisfactory evidence of ownership of the appropriation to be changed.
3. If the petition is for a change in point of diversion and means of conveyance for all or a part of an appropriation, it shall include, in addition to the foregoing, the name, permit number and date of priority of the ditch or facility to which it is to be changed, and whether the petitioner is the sole owner of both facilities involved or has the consent of the other owners of both ditches or facilities.
4. Such petitions shall be accompanied by maps in duplicate, one (1) of which shall be on tracing linen of a size required by the state engineer and state board of control, prepared under certificate of a registered land surveyor, and showing accurately the location of the stream, the location of the ditch or ditches involved, location of any intervening diversions, and if for irrigation, the location of the lands changed or affected by such change.
5. In event that written consents of owners of appropriations which divert between the old and new points of diversion or the owners of ditches or facilities involved in the proposed change are not secured and attached to the petition, the petition shall be referred to:
   1. The superintendent of the water division in which the change is proposed, if the right is adjudicated; or
   2. To the state engineer if the right is unadjudicated.
6. The state engineer or the superintendent shall set a hearing on the petition and require the petitioner to provide thirty (30) days notice by certified mail with return receipt requested of the time and place of the hearing to any owners of appropriations which divert between the old and new points of diversion and any owners or users of ditches or facilities to be affected by the proposed change. If the state engineer or the state board of control determines that at least twenty (20) owners of appropriations or owners or users of ditches or facilities require notice of the hearing, the state engineer or the state board of control, in lieu of requiring notice by certified mail with return receipt requested, may allow the petitioner to provide notice of the hearing by regular mail and publication. Notice by publication under this subsection shall be accomplished by publishing notice for two (2) consecutive weeks in a newspaper of general circulation in the county where the new point of diversion is located. The last date of publication shall occur not less than ten (10) days and not more than thirty (30) days prior to the hearing. The petitioner shall provide the superintendent with a record of the proceedings which shall be transmitted to the state board of control with the superintendent’s report. The state board of control or the state engineer may make such other regulations as may be found necessary. No petition shall be granted if the right of other appropriators will be injuriously affected. The attorney general shall represent the state board of control or the state engineer in any appeal.
7. A decision by the state engineer granting or denying a petition under paragraph (a)(ii) of this section may be appealed to the board of control. An appeal may be taken to the district court pursuant to W.S. 16-3-101 through 16-3-115 from an order of the board of control:
   1. Affirming, modifying or reversing a decision of the state engineer appealed to the board under this subsection; or
   2. Granting, modifying or denying a petition under paragraph (a)(i) of this section.

History. Laws 1965, ch. 138, § 1; W.S. 1957, § 41-10.4; Laws 1985, ch. 99, § 1; 2021 ch. 18, § 1, effective July 1, 2021.

The 2021 amendment, effective July 1, 2021, in the first sentence of (f), substituted "require the petitioner to provide" for "give," "certified mail with return receipt requested" for "registered mail" and deleted "the petitioner and" following "the hearing to"; and added the second, third and fourth sentences.

Cross references. —

As to water rights appurtenant to lands to be subdivided, see § 18-5-306 .

Adjudicated water rights of long standing are not readily to be set aside and will not be set aside unless the proof of just cause is clear, cogent and convincing. White v. Wheatland Irrigation Dist., 413 P.2d 252, 1966 Wyo. LEXIS 142 (Wyo. 1966).

Petition to change point of diversion properly granted. —

Wyoming State Board of Control did not err under Wyo. Stat. Ann. § 41-3-114(f) in granting applicants' petition to change the place of use, point of diversion, and means of conveyance for water appropriations because the Board's determinations that the transfer would not result in greater consumptive use or decrease the return flows were supported by relevant evidence. Garber v. Wagonhound Land & Livestock Co., 2012 WY 89, 279 P.3d 525, 2012 Wyo. LEXIS 94 (Wyo. 2012).

Prior law. —

Prior to this section a change in point of diversion could be made by an appropriator as a matter of right, provided injury to other appropriators did not result. White v. Wheatland Irrigation Dist., 413 P.2d 252, 1966 Wyo. LEXIS 142 (Wyo. 1966).

Cited in

Platt v. Platt, 2014 WY 142, 2014 Wyo. LEXIS 164 (Nov. 6, 2014).

Applied in

Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983).

Quoted in

Town of Pine Bluffs v. State Bd. of Control, 647 P.2d 1365, 1982 Wyo. LEXIS 354 (Wyo. 1982); Velasquez v. Chamberlain, 2009 WY 80, 209 P.3d 888, 2009 Wyo. LEXIS 85 (June 18, 2009).

Stated in

Kerbs v. Walck, 2010 WY 53, 229 P.3d 974, 2010 Wyo. LEXIS 56 (Apr. 27, 2010).

Law reviews. —

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

For case note, “Water Law — The State Engineer's Authority with Reference to Change of Use, Place of Use, Point of Diversion and Means of Conveyance of Water Embraced by Water Permits: Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983),” see XIX Land & Water L. Rev. 59 (1984).

For comment, “Wyoming's New Instream Flow Act: An Administrative Quagmire,” see XXI Land & Water L. Rev. 455 (1986).

Am. Jur. 2d, ALR and C.J.S. references. —

Liability for diversion of surface water by raising surface level of land, 88 ALR4th 891.

§ 41-3-115. Applications for use of water outside the state.

1. The legislature finds, recognizes and declares that the transfer of water outside the boundaries of the state may have a significant impact on the water and other resources of the state. Further, this impact may differ substantially from that caused by uses of the water within the state. Therefore, all water being the property of the state and part of the natural resources of the state, it shall be controlled and managed by the state for the purposes of protecting, conserving and preserving to the state the maximum permanent beneficial use of the state’s waters.
2. None of the water of the state either surface or underground may be appropriated, stored or diverted for use outside of the state or for use as a medium of transportation of mineral, chemical or other products to another state without the specific prior approval of the legislature. Provided, however, neither approval by the legislature nor compliance with the application procedures under subsections (m) through (r) of this section shall be required for appropriations that will transfer or use outside the state less than one thousand (1,000) acre-feet of water per year unless the applications are part of a collection of related applications or appropriations from the same source of supply for the same or similar use where the total use or transfer outside the state exceeds one thousand (1,000) acre-feet per year in aggregate. The state engineer is authorized to adopt rules and regulations necessary to carry out the provisions of this subsection.
3. No holder of either a permit to appropriate water or a certificate to appropriate water, nor any applicant for a right to appropriate the unappropriated water of this state, may transfer or use the water so appropriated, certificated or applied for outside the state of Wyoming without prior approval of the legislature of Wyoming.
4. through (k) Repealed by Laws 1985, ch. 4, § 1.
5. Applications for the appropriation of water for use out of state shall be submitted to the state engineer. The application shall contain sufficient information to enable the state engineer to fully analyze the proposed appropriation. Within sixty (60) days of receipt of the application, the state engineer shall determine if the application is complete and acceptable. If the application is unacceptable, the state engineer shall notify the applicant as to what is needed so an acceptable application may be submitted.
6. Upon determination that the application is acceptable, the state engineer shall cause to be made, at the applicant’s expense, a comprehensive review of the application. The state engineer shall have no more than one hundred twenty (120) days to complete this review.
7. Upon completion of the state engineer’s review, the state engineer shall issue a preliminary analysis of the application. The analysis shall address the factors set forth in subsection (r) of this section, contain a summary of the application and any other information the state engineer deems relevant. The preliminary opinion, or a reasonable summary, shall be published, at the applicant’s expense, for three (3) consecutive weeks in a newspaper of general circulation in the county where the proposed appropriation of water is located. At the conclusion of the publication period, the state engineer shall hold a public hearing, at the applicant’s expense, in the county where the proposed appropriation is located.
8. In rendering a final opinion, the state engineer shall consider all comments received at the public hearing and those received in writing within twenty (20) days of the public hearing.
9. The state engineer shall render a final opinion and submit it to the legislature within one hundred twenty (120) days of the public hearing. The final opinion shall address all factors set forth in subsection (r) of this section and shall contain a recommendation that the legislature grant or deny the proposed out-of-state use.
10. The legislature shall consider the proposed appropriation following receipt of the state engineer’s opinion and recommendation. Notwithstanding subsections (d) through (k) of this section, legislative consent for the proposed appropriation of water for use out of the state shall be based upon consideration of the factors necessary to assure meeting the state’s interests in conserving and preserving its water resources for the maximum beneficial use. Factors to be considered by the legislature shall include the following:
    1. The amount of water proposed to be appropriated and the proposed uses;
    2. The amount of water available for appropriation from the proposed source, and the natural characteristics of the source;
    3. The economic, social, environmental and other benefits to be derived by the state from the proposed appropriation;
    4. The benefits to the state by the use of the water within the state that will be foregone by the proposed appropriation;
    5. The benefits presently and prospectively derived from the return flow of water in intrastate use which will be eliminated by the proposed out-of-state use;
    6. The injury to existing water rights of other appropriators that may result from the proposed use;
    7. Whether the use formulated and carried out promotes or enhances the purposes and policies of the state’s water development plans and water resources policy, and that the use will not unreasonably interfere with other planned uses or developments for which a permit has been or may be issued;
    8. Whether the proposed use will significantly impair the state’s interest and ability to preserve and conserve sufficient quantities of water for reasonably foreseeable consumptive uses and other beneficial uses recognized by law to include but not limited to domestic, livestock, agricultural, municipal and industrial purposes;
    9. Whether the proposed use will adversely affect the quantity or quality of water available for domestic or municipal use;
    10. Whether, to the greatest extent possible, the correlation between surface water and groundwater has been determined, to avoid possible harmful effects of the proposed use on the supply of either.
11. Nothing in this section shall be construed to interfere with compacts, court decrees and treaty obligations.

History. Laws 1974, ch. 25, § 1; W.S. 1957, § 41-10.5; Laws 1982, ch. 58, § 1; 1983, ch. 167, § 1; 1985, ch. 4, § 1; 1998, ch. 34, § 1; 2010, ch. 82, § 1; 2013 ch. 14, § 1, effective February 12, 2013.

The 2010 amendment, in (s), substituted “section” for “act.”.

Laws 2010, ch. 82, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2010.

The 2013 amendment, added the language “unless the applications are part of a collection of related applications or appropriations from the same source of supply for the same or similar use where the total use or transfer outside the state exceeds one thousand (1,000) acre-feet per year in aggregate” and added the last sentence in (b).

Laws 2013, ch. 13, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved February 12, 2013.

Editor's notes. —

There is no subsection (i) or (l) in this section as it appears in the printed acts.

Severability. —

Laws 1974, ch. 25, § 5, reads: “If any provision of this act is held to be unconstitutional, such a ruling shall not affect other provisions of the act which can be given effect without the unconstitutional provision, and to this end the provisions of this act are severable.”

Law reviews. —

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?,” see X Land & Water L. Rev. 119 (1975).

For comment, “Allocating Buried Treasure: Federal Litigation Involving Interstate Ground Water,” see XI Land & Water L. Rev. 103 (1976).

For article, “So Its Not ‘Ours’ — Why Can't We Still Keep It? A First Look at Sporhase v. Nebraska,” see XVIII Land & Water L. Rev. 137 (1983).

For comment, “Sporhase v. Nebraska ex rel. Douglas: State Control of Water Under the Constraints of the Commerce Clause,” see XVIII Land & Water L. Rev. 513 (1983).

Library References. —

American Law of Mining, 2nd Edition § 113.06 (Matthew Bender).

§ 41-3-201. Definition.

All that part and amount of the waters of an interstate stream which, unless prevented by artificial barrier, will enter the state of Wyoming from another state while flowing in a natural stream channel, and which have been, or may hereafter be, determined by final decree of the supreme court of the United States not to be available for diversion and application to beneficial use within the state of Wyoming, or other waters originating outside of the state of Wyoming, and which neither the state of Wyoming nor any Wyoming appropriator could divert and use as against another state or appropriators therein, the rights to which through purchase, exchange or negotiation are acquired by anyone for beneficial use in the state of Wyoming, and which are conveyed, imported or permitted to flow into the state of Wyoming through the channel of any natural stream, or otherwise, are, for the purposes of this act [§§ 41-3-201 through 41-3-208 ], hereby defined as “foreign water”.

History. Laws 1945, ch. 129, § 1; C.S. 1945, § 71-501; W.S. 1957, § 41-11.

Cross references. —

As to adjudication of rights of water for use in adjoining state, see § 41-4-104 .

§ 41-3-202. Right to acquire.

Anyone may lawfully acquire by purchase or through other negotiations entered into with the owner of a water right in another state or with such other state or with both such owner and state, the right to bring into Wyoming for beneficial use all or any portion of the stream flow of foreign water, as herein defined, arising without the boundaries of the state of Wyoming and flowing into this state.

History. Laws 1945, ch. 129, § 2; C.S. 1945, § 71-502; W.S. 1957, § 41-12.

§ 41-3-203. Transportation in interstate channels.

The owner of the right of beneficial use of any foreign water acquired for beneficial use within the state of Wyoming may transport the same in the natural channel of any interstate stream from the state boundary line to the point in the state of Wyoming where the owner of such water desires to divert and take same from said natural stream channel, and shall have the right to divert and take from said natural stream channel, the full quantity of the foreign water which the owner thereof shall have caused to be delivered into the channel of such natural stream at the state boundary line, less that quantity of foreign water only representing loss in the transportation thereof from the state boundary line to the point of diversion in the state of Wyoming.

History. Laws 1945, ch. 129, § 3; C.S. 1945, § 71-503; W.S. 1957, § 41-13.

§ 41-3-204. Duty to supervise delivery; expense.

It is hereby made the duty of the Wyoming state engineer, water division superintendents, water commissioners and deputy water commissioners, to supervise the delivery of such foreign water from the state boundary line where it enters the state of Wyoming in a natural stream channel, to the point of diversion in Wyoming; any additional expense of this supervision shall be borne by the owners of such foreign water as decided by the water officials of the state of Wyoming.

History. Laws 1945, ch. 129, § 6; C.S. 1945, § 71-506; W.S. 1957, § 41-14.

§ 41-3-205. Rights of owner; priority of claims; subject to appropriation and diversion.

The owner of foreign water is hereby declared to have the exclusive right of beneficial use of such foreign water either for immediate application to beneficial use or by impounding the same in a reservoir for future application to beneficial use, as against any claim or right to appropriate any water belonging to the state of Wyoming, and against the right of any Wyoming appropriator to divert water from said interstate stream for beneficial use in Wyoming. All foreign water conveyed or allowed to flow into the state of Wyoming is hereby declared not to be subject to appropriation in Wyoming and not to be subject to diversion under any Wyoming appropriation notwithstanding the same shall flow in the channel of any natural stream within this state and notwithstanding the same may be commingled with the waters in such stream channel owned by the state of Wyoming or by appropriators under the laws of Wyoming.

History. Laws 1945, ch. 129, § 4; C.S. 1945, § 71-504; W.S. 1957, § 41-15.

Editor's notes. —

At the direction of the legislative service office, the language in W.S. 41-3-205 has been corrected in the Wyoming Statutes Annotated , 2005 Edition, to accurately reflect the law enacted in 1945 under Senate Enrolled Act 49 (Laws 1945, ch. 129). Previously published editions had inadvertently omitted the word “not” before “to be subject to diversion.”

§ 41-3-206. Rights of owner; recording of claim.

The owner of any foreign water conveyed or allowed to flow into the state of Wyoming from without the boundaries of this state shall file in the office of the secretary of the Wyoming state board of control, within the period of one (1) month before the first conveyance or flowage of such foreign water into the state of Wyoming, a certificate in writing, signed by the owner of such foreign water, specifying the former owner or owners of such foreign water, the amount thereof so acquired, the natural stream channel to be used in the state of Wyoming as a conduit for the delivery of such foreign water to the point of diversion in the state of Wyoming and also designating the point of diversion of such foreign water in the state of Wyoming.

History. Laws 1945, ch. 129, § 5; C.S. 1945, § 71-505; W.S. 1957, § 41-16.

§ 41-3-207. Rights of owner; right to divert and use.

The owners of foreign water may divert and use in priority order, all available water in said stream channel to which such owner may be lawfully entitled under any Wyoming appropriation to the same extent and under the same conditions as if such owner had not acquired any such foreign water.

History. Laws 1945, ch. 129, § 7; C.S. 1945, § 71-507; W.S. 1957, § 41-17.

Law reviews. —

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

§ 41-3-208. Diverting from owner prohibited.

It shall be unlawful for anyone not the owner thereof to divert and take from the natural channel of any interstate stream designated by the certificate required in W.S. 41-3-206 flowing within the state of Wyoming, any foreign water or in any manner interfere with the ability of the owner of foreign water to transport the same in the natural stream channel in Wyoming to the point of diversion and to divert the same thereat. Any violation of this section shall be punishable pursuant to W.S. 41-3-616 .

History. Laws 1945, ch. 129, § 8; C.S. 1945, § 71-508; W.S. 1957, § 41-18; Laws 2005, ch. 82, § 2.

The 2005 amendment, effective July 1, 2005, added the last sentence.

§ 41-3-209. Change of point of diversion; power to petition generally.

Any person, association or corporation having heretofore acquired a right from an adjoining state to the beneficial use of the water of any stream, entering the state of Wyoming and where the point of diversion of the appropriation is located in the adjoining state and the ditch irrigates land within the state of Wyoming, and who desires to change the point of diversion from said stream from within the adjoining state to a point within the state of Wyoming, shall petition therefor to the state board of control.

History. Laws 1941, ch. 116, § 1; C.S. 1945, § 71-509; W.S. 1957, § 41-19.

§ 41-3-210. Change of point of diversion; contents of petition.

All petitions for such change of point of diversion shall be made to the state board of control setting forth the acreage in each legal subdivision of land irrigated, with the total acreage, together with a map, showing the location of the stream, the ditch, the old and new points of diversion, the new point of diversion in Wyoming to be tied to the nearest corner of the public land survey; the nature and extent of the irrigation works, their size, capacity, and length, and a certified copy of the proceedings had before the proper board, officer, or court, which has authority in the adjoining state to adjudicate water rights; amount of water adjudicated, the land for which the same was adjudicated; the date of priority, the date of adjudication, showing the existence of a valid water right, and that the same is in full force and effect.

History. Laws 1941, ch. 116, § 2; C.S. 1945, § 71-510; W.S. 1957, § 41-20; Laws 2005, ch. 15, § 2.

The 2005 amendment, effective July 1, 2005, substituted “petitions” for “petitioners” and “a map” for “maps in duplicate, one (1) of which shall be on tracing linen.”

§ 41-3-211. Change of point of diversion; endorsement and recording of petition.

Upon receipt of the petition by the board of control, it shall be the duty of the president of said board to make an endorsement thereon of the date of its receipt, and to properly record receipt of the petition.

History. Laws 1941, ch. 116, § 3; C.S. 1945, § 71-511; W.S. 1957, § 41-21; Laws 2005, ch. 15, § 2.

The 2005 amendment, effective July 1, 2005, substituted “properly record receipt of the petition” for “make a record of same in a proper book kept for that purpose.”

§ 41-3-212. Change of point of diversion; hearing.

It shall be the duty of the board of control at its next regular meeting following the receipt of such petition to examine same and ascertain if it sets forth all the facts required by W.S. 41-3-210 , and the validity of the water right granted by the adjoining state. Upon it being made to appear to the satisfaction of the board of control that the requirements of law and the regulations of the board have been complied with and that the petitioner is entitled to make the proposed changes, the said petition shall be referred to the division superintendent of the proper water division for a public hearing to be held not later than one hundred and twenty (120) days, following the date so referred. The said superintendent shall, by order, require all persons interested to appear on said certain day to show cause why the petition should not be granted. The said order shall be published for four (4) consecutive weeks in a newspaper having general circulation in the county where the proposed change of point of diversion is located; provided, that the consent of all owners of intervening diversions be secured, or that those not secured shall be notified by registered mail at least thirty (30) days prior to the hearing date. Any party who may claim injury on account of said proposed change of point of diversion shall have the right to appear before the superintendent at the public hearing as ordered, and present evidence in support of said claim. The evidence of such hearing shall be confined to the subjects enumerated in the notice for hearing. Upon completion of the taking of testimony in such hearing, it shall be the duty of the division superintendent to transmit same to the office of the board of control together with a written report setting forth the procedure followed and the results accomplished. At the next regular meeting, the board shall consider the evidence transmitted and enter a proper order either granting or denying the petition.

History. Laws 1941, ch. 116, § 4; C.S. 1945, § 71-512; W.S. 1957, § 41-22.

§ 41-3-213. Change of point of diversion; rights of applicant upon approval; certificate of appropriation.

The approval of the petition shall grant to the applicant the same right in all respects as existed under the laws of the adjoining state as to land to be irrigated, amount of water, and date of priority, as fully as though the water right had originally been acquired from the state of Wyoming. No direct flow appropriation shall be recognized under this act [§§ 41-3-209 through 41-3-215 ] for an amount of water in excess of the statutory limit of one (1) cubic foot per second for each seventy (70) acres of land irrigated. The board of control shall issue a certificate of appropriation to applicants under this act, and the fee for issuing it shall not exceed fifty dollars ($50.00).

History. Laws 1941, ch. 116, § 5; C.S. 1945, § 71-513; W.S. 1957, § 41-23; Laws 1993, ch. 123, § 1.

§ 41-3-214. Change of point of diversion; fees and costs.

The applicant shall pay the statutory fee for a stenographer to take the testimony at each hearing, and provide for a stenographic record of the proceedings, and in addition the administrative costs of the hearing official and the necessary recording fee to record the order issued by the board, as hereinabove provided, in the office of the county clerk of the county in which the change of point of diversion is situated.

History. Laws 1941, ch. 116, § 7; C.S. 1945, § 71-515; W.S. 1957, § 41-24; Laws 1993, ch. 123, § 1.

Repealing clauses. —

Laws 1941, ch. 116, § 8, repealed Laws 1939, ch. 123.

§ 41-3-215. Change of point of diversion; appeal from adverse decision.

Any applicant or person interested, feeling himself aggrieved by the decision of the board of control may appeal from said decision to the district court in the county in which said point of diversion is proposed to be located in the same manner and by the same procedure as set forth in W.S. 41-4-517 , or amendments thereto.

History. Laws 1941, ch. 116, § 6; C.S. 1945, § 71-514; W.S. 1957, § 41-25.

Cross references. —

As to judicial review of administrative action, see Rule 12, W.R.A.P.

§ 41-3-301. Application for reservoir construction permit; contents; procedure.

1. Any person, corporation, association, or organization, of any nature whatsoever, hereafter intending to store or impound, for beneficial uses, any of the unappropriated waters of the state of Wyoming, shall, before commencing construction of any works for such purpose, or performing any work in connection with said proposed construction, make an application to the state engineer, for a permit to construct a reservoir. The application must set forth the name and post office address of the applicant; the source of the water supply; the nature of the proposed use; the location and description of the proposed work; the time within which it is proposed to begin construction, and the time required for the completion of construction. Maps and plans shall conform with the provisions of W.S. 41-4-510 . In case of reservoirs where the storage is for stock purposes only and the capacity does not exceed twenty (20) acre-feet and the height of dam does not exceed twenty (20) feet, the state engineer may issue a permit without the filing of a map; however the state engineer may require certain information be submitted on special forms to be furnished or designated by him. Any violation of subsection (a) of this section shall be punishable pursuant to W.S. 41-3-616 with the exception that the owner of any unpermitted reservoir with a capacity of twenty (20) acre-feet or less and a dam height of twenty (20) feet or less shall have forty-five (45) days after receipt of the written notice of violation pursuant to W.S. 41-3-616 (a), to submit an application for a permit. The application shall meet the requirements of the state engineer’s office. Each day of the forty-five (45) days shall not be counted as a separate violation if the application for a reservoir permit is received during this forty-five (45) day period.
2. For reservoir permits issued in conjunction with the national pollutant discharge elimination system (NPDES) for mining operations, the state engineer shall promptly review the application and advise the applicant in writing if it is complete, within thirty (30) days. If the application is complete, or is resubmitted to the satisfaction of the state engineer, it shall be approved or denied within forty-five (45) days of this determination:
   1. For the purpose of this subsection “complete” means that the application contains all the essential and necessary elements and is acceptable for further review for substance and compliance with the provisions of this chapter.

History. Laws 1903, ch. 69, § 1; C.S. 1910, § 743; C.S. 1920, § 864; R.S. 1931, § 122-1502; Laws 1941, ch. 24, § 1; C.S. 1945, § 71-601; W.S. 1957, § 41-26; Laws 1980, ch. 67, § 1; 2005, ch. 15, § 2; ch. 82, § 2.

The 2005 amendments. —

The first 2005 amendment, by ch. 15, § 2, effective July 1, 2005, in (a), in the final sentence (now fourth-to-last) deleted “on tracing cloth” following “filing of a map” and inserted “or designated.”

The second 2005 amendment, by ch. 82, § 1, effective July 1, 2005, added the last three sentences in (a).

This section is set out as reconciled by the Wyoming legislative service office.

Editor's notes. —

There is no paragraph (b)(ii) in this section as it appears in the printed acts.

Water may, in this state, be impounded in reservoir by one who is neither the owner nor in possession of any land. The owner of such reservoir may sell, lease, transfer and use such water in such manner and upon such lands as the owner may desire (§ 41-3-323 ). It is the policy in this state, however, along with that of all the arid regions, that its waters should be put to the highest possible use, and one should be able to get control of any part of it for mere future speculative profit or advantage. Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 475 P.2d 548, 1970 Wyo. LEXIS 198 (Wyo. 1970).

Reservoir owner can make storage of quantity of water within the limitation of its rights to water as recognized by the board. Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 475 P.2d 548, 1970 Wyo. LEXIS 198 (Wyo. 1970).

A reservoir corporation does not have the right to store more water than can be or is beneficially used. Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 475 P.2d 548, 1970 Wyo. LEXIS 198 (Wyo. 1970).

Reservoir rights are subject to abandonment. Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 475 P.2d 548, 1970 Wyo. LEXIS 198 (Wyo. 1970).

Municipal use. —

City, prior appropriator for municipal use before date of distinction between right of appropriation for water directly from stream and appropriation from reservoirs, was authorized to impound waters appropriated for use in emergency as against claim of subsequent appropriator that water was not used for beneficial purpose. Van Tassel Real Estate & Livestock Co. v. Cheyenne, 49 Wyo. 333, 54 P.2d 906, 1936 Wyo. LEXIS 49 (Wyo.), cert. denied, 299 U.S. 574, 57 S. Ct. 38, 81 L. Ed. 423, 1936 U.S. LEXIS 282 (U.S. 1936).

Stated in

State ex rel. Christopulos v. Husky Oil Co., 575 P.2d 262, 1978 Wyo. LEXIS 268 (Wyo. 1978); John Meier & Son v. Horse Creek Conservation Dist., 603 P.2d 1283, 1979 Wyo. LEXIS 492 (Wyo. 1979).

Cited in

Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912); State ex rel. Leazenby v. True, 26 Wyo. 314, 184 P. 229, 1919 Wyo. LEXIS 22 (1919).

Law reviews. —

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200.

For article, “Priority and Progress — Case Studies in the Transfer of Water Rights,” see I Land & Water L. Rev. 1 (1966).

For article, “Transfer of Water Rights — Errata and Addenda — Sales for Recreational Purposes and to Districts,” see II Land & Water L. Rev. 321 (1967).

For comment, “Improvement of Existing Water Rights Through Unification — A Case Study on the Consolidation of Appropriations,” see II Land & Water L. Rev. 327 (1967).

For comment, “The Nature of a Reservoir Right,” see III Land & Water L. Rev. 443 (1968).

For comment, “Procedural Considerations in the Judicial Determination of Water Disputes,” see VIII Land & Water L. Rev. 513 (1974).

§ 41-3-302. Application for construction permit; conditions; secondary permit; certificate of appropriation.

All applications under this article shall be subject to the provisions of W.S. 41-4-502 through 41-4-510 , 41-4-517 and 41-3-615 , which set forth the duties and authority of the state engineer and provide for the protection of the rights of applicants; provided that an enumeration of any lands proposed to be irrigated under this article shall not be required in the primary permit, provided, further, that any party or parties desiring to appropriate such stored water to particular lands may file with the state engineer an application for permit to be known herein as the secondary permit, in compliance with the provisions of W.S. 41-4-501 through 41-4-510 and 41-4-517 . In the event secondary permit may be desired, said application shall refer to such reservoir for a supply of water and the state engineer shall not approve of said application and issue secondary permit until the applicant thereunder shall show to such state engineer by documentary evidence that he has entered into an agreement with the owners of the reservoir for a permanent and sufficient interest in said reservoir to impound enough water for the purposes set forth in said application. When beneficial use has been completed and perfected under the said secondary permit the division superintendent shall take the proof of the water user under such permit and the final certificate of appropriations shall refer to both the ditch described in the secondary permit and the reservoir described in the primary permit.

History. Laws 1903, ch. 69, § 2; 1907, ch. 86, § 16; C.S. 1910, § 744; C.S. 1920, § 863; R.S. 1931, § 122-1501; Laws 1939, ch. 59, § 1; C.S. 1945, § 71-602; W.S. 1957, § 41-27.

Basic right to store reservoir water for irrigation purposes depends upon provisions for use of the water by the holders of primary permits, by the holders of secondary permits, and by the owners of other lands lying under and capable of being irrigated from the reservoir, in the order named. The constitution, statutes and decisions, fairly interpreted, mean that any rights to use such water in the state are based upon priority and beneficial use and are relevant to the rights of all interested parties. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Primary and secondary permits. —

This section is the only statute relative to reservoirs in which is found reference to “primary” and “secondary” permits. The primary permit contemplates the authority from the state to construct a reservoir, while a secondary permit is the state's authority to appropriate the impounded waters in a reservoir to beneficial use. Condict v. Ryan, 79 Wyo. 211, 333 P.2d 684, 1958 Wyo. LEXIS 43 (Wyo. 1958).

Time of filing. —

Where plaintiff's original application for permission for a reservoir was filed under this section, and the engineer returned it for additional information, a second application with the additional information being subsequently filed, the two applications are to be taken as one and applicant given all the benefit of his priority under the first filing. Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (Wyo. 1912).

Description of land not required. —

Statute does not require permits for reservoirs and storage water to incorporate description of lands to be irrigated. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Substitution possible. —

Under administrative law concerning storage water, irrigable acreage may be substituted for nonirrigable acreage included in original reservoir project. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Rights in surplus water. —

If reservoir has sufficient capacity above that required to satisfy contractual rights of owners of land in original project, reservoir owner has right to contract with others for use of storage water. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Contract whereby owner of reservoir agreed to furnish storage water for irrigation of lands not in original project was, under circumstances of the case, valid as to purchasers of land included in original project. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Municipal use. —

City, prior appropriator for municipal use before date of distinction between right of appropriation for water directly from stream and appropriation from reservoirs, was authorized to impound waters appropriated for use in emergency as against claim of subsequent appropriator that water was not used for beneficial purpose. Van Tassel Real Estate & Livestock Co. v. Cheyenne, 49 Wyo. 333, 54 P.2d 906, 1936 Wyo. LEXIS 49 (Wyo.), cert. denied, 299 U.S. 574, 57 S. Ct. 38, 81 L. Ed. 423, 1936 U.S. LEXIS 282 (U.S. 1936).

Principles of laches, estoppel and limitation of action were available as defenses to claim that contract whereby water right owner acquired authority to construct reservoir in consideration for furnishing storage water to irrigate land not regularly included in project was invalid. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Jurisdiction of supreme court. —

Under art. 5, §§ 2, 3, Wyo. Const., the supreme court has no original jurisdiction to issue writ of prohibition against state engineer to restrain him from holding threatened hearing seeking to cancel a permit to construct a reservoir, the state engineer not being an “inferior court” within the constitution. State ex rel. Leazenby v. True, 26 Wyo. 314, 184 P. 229, 1919 Wyo. LEXIS 22 (Wyo. 1919).

Cited in

In re Gen. Adjudication of All Rights, 2004 WY 21, 85 P.3d 981, 2004 Wyo. LEXIS 28 (2004).

Law reviews. —

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200.

§ 41-3-303. Use of stored water.

The use of water stored under the provisions of this chapter may be acquired under such terms as shall be agreed upon by and between the parties in interest. Lands entitled to the use of water in any reservoir may use the water stored therein, and to which they are entitled, at such times and in such amounts as the water users may elect, provided that a beneficial use of water is made at all times.

History. Laws 1903, ch. 69, § 7; 1905, ch. 14, § 1; C.S. 1910, § 749; C.S. 1920, § 870; Laws 1921, ch. 140, § 1; R.S. 1931, § 122-1508; C.S. 1945, § 71-608; W.S. 1957, § 41-28.

Description of land not required. —

Statute does not require permits for reservoirs and storage water to incorporate description of lands to be irrigated. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Substitution possible. —

Under administrative law concerning storage water, irrigable acreage may be substituted for nonirrigable acreage included in original reservoir project. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Rights in surplus water. —

If reservoir has sufficient capacity above that required to satisfy contractual rights of owners of land in original project, reservoir owner has right to contract with others for use of storage water. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Contract whereby owner of reservoir agreed to furnish storage water for irrigation of lands not in original project was, under circumstances of the case, valid as to purchasers of land included in original project. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Reservoir rights were properly conveyed. —

Summary judgment was properly awarded to defendants in assignees' action challenging the validity of an easement where the fact that reservoir rights were permitted for irrigation did not impact the ownership of the rights conveyed by the Wyoming State Board of Land Commissioners to the Wyoming Game and Fish Commission. Bentley v. Office of State Lands, 2007 WY 94, 160 P.3d 1109, 2007 Wyo. LEXIS 102 (June 8, 2007).

Principles of laches, estoppel and limitation of action were available as defenses to claim that contract whereby water right owner acquired authority to construct reservoir in consideration for furnishing storage water to irrigate land not regularly included in project was invalid. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Stated in

Wheatland Irrigation Dist. v. Dodge, 387 P.2d 679, 1963 Wyo. LEXIS 130 (Wyo. 1963).

Cited in

State ex rel. Leazenby v. True, 26 Wyo. 314, 184 P. 229, 1919 Wyo. LEXIS 22 (1919); Nebraska v. Wyoming, 325 U.S. 589, 65 S. Ct. 1332, 66 S. Ct. 1, 89 L. Ed. 1815, 1945 U.S. LEXIS 2620 (1945).

Law reviews. —

For comment, “Determining Quantity in Irrigation Appropriations,” see IV Land & Water L. Rev. 501 (1969).

§ 41-3-304. Use of bed of stream.

Whenever the owner, manager or lessee of a reservoir, constructed under the provisions of this act [§§ 41-3-301 through 41-3-304 , 41-3-318 , 41-3-319 and 41-3-321 ], shall desire the use of the bed of the stream, or other water course, for the purpose of carrying stored or impounded water from the reservoir to the consumer, or shall desire the use of any ditch to carry, convey or transmit any of the stored or impounded water for the benefit of any person having the right to have the reservoir water carried, conveyed or transmitted through the ditch under the laws of this state, he shall, in writing notify the water commissioner of the district in which the stored or impounded water is to be used, giving the date when it is proposed to discharge water from the reservoir, its volume in acre feet and the names of all persons and ditches entitled to its use, and other matters as may be necessary to properly distribute the water. It shall then be the duty of the water commissioner to so adjust the headgates of all ditches of ditch companies or appropriators from the stream or water course, and the division boxes of individual consumers of water, not entitled to the use of the stored water, as will enable those having the right to secure the volume of water to which they are entitled. The commissioner shall not in any other manner interfere with the headgates or division boxes, except as otherwise provided by law. The water commissioner shall keep a true and just account of the time spent by him in the discharge of his duties as defined in this section, and it shall be the duty of the water commissioner or division superintendent to present a bill of one-half (1/2) the expense so incurred to the reservoir owner, manager or lessee, and if the owner, manager, or lessee shall neglect for three (3) days, after the presentation of the bills of costs, to pay the costs, the costs shall be made a charge upon the reservoir and shall be collected as delinquent taxes until the complete payment of the bill of costs has been made. Costs recovered under this section shall be paid into the general fund.

History. Laws 1903, ch. 69, § 3; C.S. 1910, § 745; Laws 1913, ch. 104, § 2; C.S. 1920, § 866; R.S. 1931, § 122-1504; C.S. 1945, § 71-604; W.S. 1957, § 41-29; Laws 1991, ch. 157, § 1.

Cited in

State ex rel. Leazenby v. True, 26 Wyo. 314, 184 P. 229, 1919 Wyo. LEXIS 22 (1919); Nebraska v. Wyoming, 325 U.S. 589, 65 S. Ct. 1332, 66 S. Ct. 1, 89 L. Ed. 1815, 1945 U.S. LEXIS 2620 (1945).

§ 41-3-305. Direct flow storage.

The holder or owner of an adjudicated water right to the direct use of the natural unstored flow of any surface stream of the state may store such direct flow so long as no other Wyoming appropriator or user is injured or affected thereby. Prior to the commencement of the storage of water under a direct flow water right, the appropriator shall submit a request for such storage in writing to the state engineer and shall obtain the approval of the state board of control. The state board of control may permit storage at any time so long as there is no interference with existing water rights or uses. The state engineer is authorized and empowered to prescribe such rules and regulations as may be necessary or desirable to enable him to effectively administer the provisions of this section.

History. Laws 1973, ch. 203, § 1; W.S. 1957, § 41-29.1; Laws 1975, ch. 177, § 2.

Section inapplicable to water treatment holdings. —

This section should not apply to the temporary holding of effluent waters for water treatment purposes, especially when all of those waters are imported. Thayer v. Rawlins, 594 P.2d 951, 1979 Wyo. LEXIS 407 (Wyo. 1979).

Stated in

State ex rel. Christopulos v. Husky Oil Co., 575 P.2d 262, 1978 Wyo. LEXIS 268 (Wyo. 1978).

Law reviews. —

For case note, “Importation Doctrine Applied to Water Transfers Within a River System: A Step Too Far,” see XV Land & Water L. Rev. 99 (1980).

§ 41-3-306. Instream stock use.

In the administration of water rights on any stream and in the consideration of any applications for permits, the state engineer may require that water be provided to meet reasonable demands for instream stock use.

History. Laws 1975, ch. 177, § 1; W.S. 1957, § 41-30.

§ 41-3-307. Alterations or repairs of dams or diversion systems; definitions.

1. As used in this act unless the context otherwise requires:
   1. “Alterations” or “repairs” means only such alterations or repairs as may directly affect the safety of the dam or diversion system, as determined by the state engineer or his designated representative;
   2. “Appurtenant works” include, but are not limited to, such structures as spillways, either in the dam or separate therefrom, the reservoir and its rim, low level outlet works, and water conduits such as tunnels, pipelines or penstocks, either through the dam or its abutments;
   3. “Dam” means any artificial barrier, including appurtenant works, used to impound or divert water and which is or will be greater than twenty (20) feet in height or with an impounding capacity of fifty (50) acre-feet or greater. “Dam” shall not include artificial barriers including appurtenant works:
      1. Six (6) feet in height or less, regardless of storage capacity; or
      2. Which impound less than fifteen (15) acre-feet, regardless of height.
   4. “Days” used in establishing deadlines means calendar days, including Sundays and holidays;
   5. “Diversion system” means any channel diversion, headgate or diversion structure with a carrying capacity in excess of fifty (50) cubic feet of water per second of time;
   6. “Emergency” means any threat to life or property caused by the condition of any dam, reservoir or diversion system, or by present or imminent floods which threaten the safety or structural integrity of any dam or diversion system;
   7. “Emergency response agency” means any agency which the dam owner may be required to notify in case of an emergency, such as sheriff’s office, highway patrol or local emergency coordinator;
   8. “Enlargement” means any change in or addition to an existing dam or reservoir which raises or may raise the water storage elevation of the water impounded by the dam;
   9. “Inspection” means visual or mechanical checks, measures, borings and any other methods necessary for determination of the adequacy of construction techniques, conformity of work with approved plans and specifications, and the safety and operating performance of a dam or diversion system and appurtenant works;
   10. “Owner” includes any of the following who own, control, operate, maintain, manage or propose to construct a dam or reservoir:
       1. The state and its departments, institutions, agencies and political subdivisions;
       2. Every municipal or quasi-municipal corporation;
       3. Every public utility;
       4. Every district;
       5. Every person;
       6. The federal government and its departments, institutions, agencies and political subdivisions;
       7. The duly authorized agents, lessees or trustees of any of the foregoing; and
       8. Receivers or trustees appointed by any court for any of the foregoing.
   11. “Person” means any person, firm, association, organization, partnership, business trust, corporation or company;
   12. “Reservoir” means any basin which contains or will contain impounded water;
   13. “This act” means W.S. 41-3-307 through 41-3-317 .

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.1; Laws 1992, ch. 23, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Quoted in

Tillery v. West Side Canal, Inc., 719 P.2d 1384, 1986 Wyo. LEXIS 562 (Wyo. 1986).

§ 41-3-308. Alterations or repairs of dams or diversion systems; plans and specifications; duties of state engineer.

1. Plans and specifications of any proposed construction, enlargement, major repair, alteration or removal of a dam or diversion system shall be prepared by or under the direction of a registered professional engineer licensed to practice in the state of Wyoming and experienced in dam design and construction, and shall be submitted to the state engineer for approval. It is unlawful to commence construction, enlargement, major repair, alteration or removal until the plans and specifications have been approved by the state engineer. At the request of the state engineer, the professional engineer responsible for the plans and specifications shall carry out any revisions of the plans and specifications or provide such additional information as is necessary to justify or clarify the design.
2. A copy of all plans and specifications submitted under this section shall be kept on file in the state engineer’s office.
3. In the event that a proposed dam or diversion system is related to a facility which requires an industrial siting permit pursuant to W.S. 35-12-106 :
   1. The plans and specifications of the proposed dam or diversion system shall be submitted to the state engineer at the same time that the application for an industrial siting permit is submitted to the industrial siting administration [industrial siting council] pursuant to W.S. 35-12-108 ;
   2. The state engineer shall approve or reject the plans and specifications of the proposed dam or diversion system prior to the public hearing conducted pursuant to W.S. 35-12-110(f)(i);
   3. The approval or rejection of the plans and specifications of the proposed dam or diversion system shall be binding on the industrial siting council for the purposes of issuing an industrial siting permit.
4. The state engineer shall provide for the regulation and supervision of all dams, diversion systems and reservoirs by the state to the extent required to protect the public safety and property. The state engineer is authorized and directed to promulgate regulations and standards for the design, construction, enlargement, alteration, abandonment, maintenance, monitoring, operation, repair and removal of dams, reservoirs, and diversion systems as are necessary and proper to carry out the purposes of this act. The state engineer may waive any or all of the requirements of this act in instances where the dam or diversion system is located in a remote area where there is no threat to the public safety or property.

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.2; Laws 1992, ch. 23, § 1.

Industrial siting administration. —

Section 35-12-108 , referred to in subsection (c)(i), relates to submitting a permit to the industrial siting council, not the industrial siting administration.

Meaning of “this act.” —

For the definition of “this act,” referred to in the last two sentences in subsection (d), see § 41-3-307(a)(xiii).

§ 41-3-309. Alterations or repairs of dams or diversion systems; inspections performed and reports submitted to state engineer by professional engineer.

1. A registered professional engineer licensed to practice in the state of Wyoming shall be in charge of and responsible for the construction, enlargement, major repair, alteration or removal of any dam or diversion system.
2. The engineer in charge shall provide for inspections at such intervals as deemed necessary to insure conformity with the approved plans and specifications, either by himself or by a person qualified to perform the inspections and for whose work the engineer stands personally responsible.
3. All information obtained from, during or as the result of such inspection shall be made part of a report, certified to by the engineer in charge, which shall be submitted to the state engineer at such time or times as may be set by the state engineer.
4. All reports submitted under this section shall be filed in the state engineer’s office.

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.3; Laws 1992, ch. 23, § 1.

§ 41-3-310. Alterations or repairs of dams or diversion systems; inspections by state engineer or assistant engineer; cost.

1. If the state engineer believes that inspections carried out under W.S. 41-3-309 are inadequate or that additional inspections are necessary, the state engineer may inspect personally or appoint an assistant engineer to inspect the construction, enlargement, repair, alteration or removal of any dam or diversion system. If after any inspection the state engineer or his representative finds that amendments, modifications or changes are necessary in order to insure the security and integrity of the work and structure, the protection of property or the public safety, the state engineer may order the owner or owners of the dam or diversion system to revise the plans and specifications, or order work stopped. It is unlawful to proceed with or continue the work until any revisions have been approved by the state engineer.
2. Any inspections required by this section shall be made at state expense, provided the assistant engineer performing such inspections is an employee of the state of Wyoming.
3. If the assistant engineer is not a regular employee of the state of Wyoming, inspections shall be made at the expense of the owner. The owner shall be furnished with an estimate of the cost prior to performance of any inspections, but the state engineer is not precluded from collecting any or all additional costs which result from performance of the inspections. Costs to be paid by the owner shall include, but are not limited to, all work or tests as are necessary to fully provide any information and data required by the state engineer or his appointed representative. If the owner refuses or neglects to turn over the funds within thirty (30) days, after the presentation of the bill of costs, the costs shall constitute a lien upon the works or other properties of the owner or owners and may be collected by appropriate action in any court of competent jurisdiction. In order to have a valid, enforceable lien under this section, a lien statement sworn to before a notarial officer shall be filed by the claimant with the county clerk of the county in which the property is located. The county clerk shall file the statement and index by date, name of claimant and property owner, and by legal description. The lien statement shall contain the following:
   1. The name and address of the governing body seeking to enforce the lien;
   2. The name and address of the person against whose property the lien is filed; and
   3. The legal description of the property to which the lien attaches.
4. All funds paid by the owner to the state engineer shall be deposited in the state engineer’s holding account from which account the costs incurred as a result of any inspections or other work deemed necessary under this section shall be paid. Any funds not so expended shall be returned to the person or persons advancing the funds.

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.4; Laws 1992, ch. 23, § 1; 2008, ch. 20, § 2.

The 2008 amendment, effective July 1, 2008, substituted “notarial officer” for “notary public” in the fifth sentence of the introductory language of (c).

§ 41-3-311. Alterations or repairs of dams or diversion systems; periodic inspections.

1. Any dam subject to the terms of this act shall be inspected at least once every ten (10) years or as often as deemed necessary based on the hazards of the dam to insure the continued protection of public safety and property.
2. Inspections referred to in subsection (a) of this section shall be performed by the state engineer or his appointed representative who shall have right of entry upon private or government lands and is authorized to inspect the owner’s technical data and other documentation as may be necessary to perform these inspections. All information obtained as a result of the inspections shall be filed in the state engineer’s office.
3. Inspections required under this section shall be made at state expense except as provided in W.S. 41-3-312 when a dam, reservoir or diversion system is found to be unsafe by the state engineer.
4. If inspections performed under this section disclose defects in the works which in the judgment of the state engineer or his authorized agent constitute a threat to life or property, the state engineer may, without incurring any liability, order the draining of any reservoir involved, or the limitation or cessation of its use or the use of any defective works until such time as the owner of the reservoir or other works returns the works to a safe condition as approved by the state engineer.

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.5; Laws 1992, ch. 23, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in subsection (a), see § 41-3-307(a)(xiii).

§ 41-3-312. Alterations or repairs of dams or diversion systems; inspections at other than regular times; cost; unsafe structures.

1. The state engineer may, or upon written request from any person or persons residing on or owning land near any dam, reservoir or diversion system shall, order an inspection of those works at any time other than the time set for regular inspections as provided for in W.S. 41-3-311(a). Before ordering an inspection, the state engineer may require any person or persons requesting the inspection to deposit a sum of money sufficient to pay the expenses of the inspection into the state engineer’s holding account. If after the inspection the dam, reservoir or diversion system is determined to be in a safe and usable condition, the state engineer may cause the whole or part of the expenses of the inspection to be paid out of the state engineer’s holding account. Any excess funds shall be returned to the person or persons advancing the funds.
2. If the dam, reservoir or diversion system is found to be defective, any funds deposited by the person or persons requesting the inspection shall be returned and the state engineer may require the person or persons owning the dam, reservoir or diversion system in question to pay the whole or any part of the expenses of inspection. If the state engineer requires a payment, he shall present a bill of costs to the owner or owners, and if the owner or owners refuse or neglect to pay the costs within thirty (30) days after the presentation of the bill of costs, the costs shall constitute a lien upon the works or other properties of the owner or owners and may be collected by appropriate action in any court of competent jurisdiction. If the inspection discloses defects in the works which in the judgment of the state engineer or his authorized agent constitute a threat to life or property, the state engineer may, without incurring any liability, order the draining of any reservoir involved, or the limitation or cessation of its use or the use of any defective works until such time as the owner of the reservoir or other works returns the works to a safe condition as approved by the state engineer. The lien shall be filed as provided by W.S. 41-3-310(c).

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.6; Laws 1992, ch. 23, § 1.

§ 41-3-313. Alterations or repairs of dams or diversion systems; outlets; maintenance; draining by breaching.

1. All dams and reservoirs hereafter constructed, with or without a controlled inlet, shall contain an outlet controlled by a headgate or other control works. The headgate or control works shall be maintained in an operable condition at all times and in a manner that water impounded by or within a dam or reservoir may be evacuated or maintained at any water level which may be required by the state engineer.
2. All dams constructed prior to the effective date of this act which have no outlet or means for lowering the reservoir water level in an expeditious manner, may be drained by breaching at the owner’s expense when the public safety so requires.
3. The state engineer and anyone working under his direction and control shall not be held liable for any damages or loss of water resulting from the draining or imposed restrictions as to the use of a reservoir, dam or diversion system.
4. If within thirty (30) days after presentation of an itemized statement the owner fails to reimburse the state engineer for expenses incurred under this section, any unpaid balance of such expense shall automatically constitute a lien upon lands or other properties of the owner.

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.7; Laws 1992, ch. 23, § 1.

Editor's notes. —

Laws 1977, ch. 120, § 4, makes the act effective on May 27, 1977.

Cited in

Dechert v. Christopulos, 604 P.2d 1039, 1980 Wyo. LEXIS 223 (Wyo. 1980).

§ 41-3-314. Alterations or repairs of dams or diversion systems; emergency repairs or breaching.

1. In case of an emergency where the state engineer or his authorized representative declares that repairs or breaching of a dam or diversion system are immediately necessary to safeguard life and property, the necessary repairs or breaching shall be started immediately by the owner or by the state engineer or his representative at the owner’s expense, if the owner fails to do so. The state engineer and emergency response agencies shall be notified at once of any changes in the physical conditions of the dam, diversion system, or reservoir which significantly increase the probability of failure of the dam or diversion works or the danger to life or property, proposed emergency repairs or breaching to be instituted by the owner. These reporting requirements shall apply only to cases in which an emergency has been declared pursuant to this subsection.
2. If emergency repairs have been made and the emergency situation has passed, the owner shall commence all repairs necessary to return the dam or diversion system to a safe and usable condition, as provided in W.S. 41-3-308 through 41-3-310 .
3. All costs incurred by the state engineer during an emergency shall be payable by the owner or owners on receipt of the bill of costs from the state engineer. Costs not paid within thirty (30) days after presentation of the bill shall constitute a lien upon the dam or diversion system or other properties of the owner or owners and may be collected by appropriate action in any court of competent jurisdiction. The lien shall be filed as provided by W.S. 41-3-310(c).

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.8; Laws 1992, ch. 23, § 1.

§ 41-3-315. Alterations or repairs of dams or diversion systems; enforcement of provisions.

For any reservoir the state engineer may enforce any sections of this act in such manner and by such means as may be necessary to insure the safety of the public and protection of property.

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.9; Laws 1992, ch. 23, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 41-3-307(a)(xiii).

§ 41-3-316. Alterations or repairs of dams or diversion systems; actions brought against state, state engineer or employees prohibited.

1. No action shall be brought against the state or the state engineer or any of his agents or employees for the recovery of damages caused by the partial or total failure of any dam, reservoir or diversion system or damages caused by virtue of the operation of any dam, reservoir or diversion system upon the ground that such defendants are liable by virtue of any of the following:
   1. The approval of the dam, reservoir or diversion system or approval of flood handling plans during construction;
   2. The issuance or enforcement of orders relative to maintenance or operation of any dam or reservoir;
   3. Control and regulation of any dam, reservoir or diversion system;
   4. Measures taken to protect against failure during an emergency; or
   5. Failure to take an action required by the provisions of this act.

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.10; Laws 1992, ch. 23, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to in subsection (a)(v), see § 41-3-307(a)(xiii).

Cited in

Tillery v. West Side Canal, Inc., 719 P.2d 1384, 1986 Wyo. LEXIS 562 (Wyo. 1986).

§ 41-3-317. Alterations or repairs of dams or diversion systems; liability of owners.

Nothing in this act shall be construed to relieve an owner or owners of any reservoir, dam or diversion system of any legal duties, obligations or liabilities incident to their ownership or operation of or any damages resulting from the leakage or overflow of water or for floods resulting from the failure or rupture of the fill or structure for such works.

History. Laws 1977, ch. 120, § 1; W.S. 1957, § 41-30.11.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 41-3-307(a)(xiii).

Strict liability not imposed. —

This section was not intended to be, and is not, one which imposes absolute liability. Certainly, it was never intended to be more restrictive than Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), which itself carried exceptions and therefore was not a rule of liability insurance. Wheatland Irrigation Dist. v. McGuire, 537 P.2d 1128, 1975 Wyo. LEXIS 149 (Wyo. 1975).

Liability under this section is absolute only when the damage-causing forces are not acts of God or the public enemy, or when courts, for other reasons, might decide to make other exceptions. Wheatland Irrigation Dist. v. McGuire, 537 P.2d 1128, 1975 Wyo. LEXIS 149 (Wyo. 1975).

Owner of premises is charged with duty of reasonable care in constructing, maintaining and operating his irrigation works and facilities. Wheatland Irrigation Dist. v. McGuire, 537 P.2d 1128, 1975 Wyo. LEXIS 149 (Wyo. 1975).

Landowners have a right to rely upon reasonable care as a standard of conduct in responding to damage claims for escaping reservoir waters. Wheatland Irrigation Dist. v. McGuire, 537 P.2d 1128, 1975 Wyo. LEXIS 149 (Wyo. 1975).

Negligence determines liability of owners of failed canal headgate. —

Negligence, not strict liability, was the standard to be applied in determining the liability of the owners of a canal headgate which failed and allowed a ranch to be flooded. Tillery v. West Side Canal, 719 P.2d 1384, 1986 Wyo. LEXIS 562 (Wyo. 1986).

Unlawful act of third party deemed defense. —

The unlawful act of a third party, like an act of God or the act of a public enemy, may be shown as a defense to the charge that a reservoir owner's water has escaped to do damage to his neighbor's property. Wheatland Irrigation Dist. v. McGuire, 537 P.2d 1128, 1975 Wyo. LEXIS 149 (Wyo. 1975).

Burden of proof on owner. —

Where damage is shown from an irrigation works, the burden of proof is upon the reservoir owner to show one of the exceptions to the absolute liability concept. Wheatland Irrigation Dist. v. McGuire, 537 P.2d 1128, 1975 Wyo. LEXIS 149 (Wyo. 1975).

Damage from waste water. —

Where defendant constructed an irrigation canal, and in connection therewith, an extensive basin for storing of water, and for carrying off waste water, and to guard against injury to defendant's dam and works, erected spills, which continually drained water from the basin onto plaintiff's land, defendant was liable therefor at common law, regardless of whether the basin constituted a reservoir within this section. Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14, 81 P. 785, 1905 Wyo. LEXIS 27 (Wyo. 1905).

Law reviews. —

For case note, “Water Law — Wyoming Forfeiture Statute: Standing Requirement Under the Platte County Grazing Association v. State Board of Control, 675 P.2d 1279, 1984 Wyo. LEXIS 244 (Wyo. 1984),” see XIX Land & Water L. Rev. 485 (1984).

§ 41-3-318. Penalties, cancellation of permit, for failure to comply with W.S. 41-3-308 through 41-3-314.

Failure to comply with the provisions of W.S. 41-3-308 through 41-3-314 shall subject the permit to cancellation at any time pursuant to W.S. 41-3-616(c). Failure to comply with any valid order issued by the state engineer pursuant to W.S. 41-3-308 through 41-3-314 , shall subject the permit holder to penalty pursuant to W.S. 41-3-616(b).

History. Laws 1903, ch. 69, § 6; C.S. 1910, § 748; C.S. 1920, § 869; R.S. 1931, § 122-1507; C.S. 1945, § 71-607; W.S. 1957, § 41-32; Laws 1977, ch. 120, § 2; 1992, ch. 23, § 1; 2005, ch. 82, § 2.

The 2005 amendment, effective July 1, 2005, rewrote the section, which formerly provided possible penalties of a $500 fine per day of violation and possible cancellation of a permit for failure to comply with a valid order issued by the state engineer pursuant to §§ 41-3-308 through 41-3-314 .

Cited in

State ex rel. Leazenby v. True, 26 Wyo. 314, 184 P. 229, 1919 Wyo. LEXIS 22 (1919).

§ 41-3-319. Owners of ditches and reservoirs; general rights.

Each owner of a share or shares of the capital stock in an incorporated ditch company existing for the purpose of distributing water through such company’s ditch to the owners of such stock, shall have the right to carry, convey and transmit reservoir water, supplementing other water rights he may possess, through the ditch of such ditch company in which he may have such stock, to the full extent of the carrying capacity represented by such stock, but no greater. Each partner in a partnership ditch owned or used for a like purpose, shall have the right to carry, convey and transmit reservoir water, supplementing other water rights he may possess, through such partnership ditch, to the full extent of the carrying capacity represented by his interest, as a partner, in such ditch, but no greater. Every such person carrying, conveying and transmitting water through such ditch, or having the same done for his benefit, shall pay all expenses incurred by reason of all extra labor in cleaning such ditch, change of division boxes, and other additional expenses made necessary by reason of carrying such reservoir water through any such ditch. The right herein granted to any person, shall also extend to the owner, manager or lessee of a reservoir, who desires to use any such ditch to carry, convey or transmit water through such ditch for the benefit of any such person to whom the right herein mentioned has been granted as aforesaid.

History. Laws 1913, ch. 104, § 1; C.S. 1920, § 865; R.S. 1931, § 122-1503; C.S. 1945, § 71-603; W.S. 1957, § 41-33.

Cited in

State ex rel. Leazenby v. True, 26 Wyo. 314, 184 P. 229, 1919 Wyo. LEXIS 22 (1919).

§ 41-3-320. Owners of ditches and reservoirs; sale or lease of impounded water.

Except as otherwise provided by deed or other written instruments of the owner or owners of the right to impound water in any reservoir, such reservoir owner or owners shall, after the completion of the works in connection with such reservoir, be held to be the owner of the right to impound the water, and the right to sell or lease a portion or all his right to the impounded waters; provided, that the sale of any portion of the capacity of any reservoir shall carry with it an interest in the reservoir and works appurtenant thereto of such proportion as the portion sold bears to the total capacity of the reservoir; and provided, further, that the water stored in any reservoir cannot be used outside the boundaries of the state of Wyoming without special permit from the state engineer; and provided, further, that the state engineer may deny any use of water from any reservoir that would be detrimental to the public interest.

History. Laws 1921, ch. 141, § 1; R.S. 1931, § 122-1601; C.S. 1945, § 71-612; W.S. 1957, § 41-34.

Claim of United States to storage water. —

A decree of the United States supreme court which made an equitable apportionment of the natural flow of the North Platte river between Nebraska, Wyoming and Colorado did not constitute a cloud on the claim of the United States to storage water under Wyoming law. Nebraska v. Wyoming, 325 U.S. 589, 65 S. Ct. 1332, 66 S. Ct. 1, 89 L. Ed. 1815, 1945 U.S. LEXIS 2620 (U.S. 1945), modified, 345 U.S. 981, 73 S. Ct. 1041, 97 L. Ed. 1394, 1953 U.S. LEXIS 1909 (U.S. 1953).

Discretionary power of state engineer. —

This section invests state engineer with discretion to “deny any use of water from any reservoir that would be detrimental to public interest.” In re Utah-Idaho Sugar Co., 57 Wyo. 425, 120 P.2d 601, 1942 Wyo. LEXIS 2 (Wyo. 1942).

Where permits were granted conditioned upon obtaining rights-of-way across federal land and such rights-of-way were not obtained, state engineer's canceling permits and rejecting applications for amendments thereof was not abuse of discretion. In re Utah-Idaho Sugar Co., 57 Wyo. 425, 120 P.2d 601, 1942 Wyo. LEXIS 2 (Wyo. 1942).

Law reviews. —

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200 (1957).

§ 41-3-321. Owners of ditches and reservoirs; priority of right to store or impound.

The priority of right to store or impound water under this act [§§ 41-3-301 through 41-3-304 , 41-3-318 , 41-3-319 , 41-3-321 ] shall date from the filing of the application in the state engineer’s office.

History. Laws 1903, ch. 69, § 8; C.S. 1910, § 750; C.S. 1920, § 871; R.S. 1931, § 122-1509; C.S. 1945, § 71-609; W.S. 1957, § 41-35.

Municipal use. —

City, prior appropriator for municipal use before date of distinction between right of appropriation for water directly from stream and appropriation from reservoirs, was authorized to impound waters appropriated for use in emergency as against claim of subsequent appropriator that water was not used for beneficial purpose. Van Tassel Real Estate & Livestock Co. v. Cheyenne, 49 Wyo. 333, 54 P.2d 906, 1936 Wyo. LEXIS 49 (Wyo.), cert. denied, 299 U.S. 574, 57 S. Ct. 38, 81 L. Ed. 423, 1936 U.S. LEXIS 282 (U.S. 1936).

Cited in

Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912); State ex rel. Leazenby v. True, 26 Wyo. 314, 184 P. 229, 1919 Wyo. LEXIS 22 (1919).

§ 41-3-322. Owner's report of persons entitled to use water; superintendent's report of use of water.

The owner of each reservoir shall annually, in writing, before or during the irrigating season and before the releasing of the water from the reservoir, deliver to the water commissioner having jurisdiction over such reservoir a list or lists of parties entitled to use water from such reservoir during the irrigating season of such year, and also a list as near as may be of the lands proposed to be irrigated, and shall immediately notify such water commissioner of any changes in such list or lists. The superintendent of the water division in which such reservoir is situated shall annually on or before the first day of December in each year make a written report to the state engineer of the state, enumerating in detail the person or persons who during the irrigating season immediately preceding use any part of such reservoir water, and shall also enumerate therein the lands upon or uses for which said water was applied during such irrigating season so that the state engineer may be kept at all times advised as to whether or not such water has been applied to beneficial uses.

History. Laws 1921, ch. 141, § 3; R.S. 1931, § 122-1603; C.S. 1945, § 71-614; W.S. 1957, § 41-36.

Intention of section. —

This section is probably, in the main at least, intended to apply to cases in which the owner of a reservoir is ready to furnish water to a number of landowners other than himself. Sturgeon v. Brooks, 73 Wyo. 436, 281 P.2d 675, 1955 Wyo. LEXIS 11 (Wyo. 1955).

This section and § 41-3-324 were enacted for benefit of water commissioner. Hence, the failure of the reservoir owner to comply with these sections did not prejudice the owner of the land upon which the reservoir was constructed. Sturgeon v. Brooks, 73 Wyo. 436, 281 P.2d 675, 1955 Wyo. LEXIS 11 (Wyo. 1955).

Applied in

Stutzman v. Office of the Wyoming State Eng'r, 2006 WY 30, 130 P.3d 470, 2006 Wyo. LEXIS 33 (Wyo. Mar. 16, 2006).

§ 41-3-323. Deeds for water rights; attaching of rights to land; sale, lease, transfer or use.

The reservoir water and rights acquired under reservoir permits and adjudications shall not attach to any particular lands except by deed, or other sufficient instrument conveying such water or water rights, executed by the owner or owners of such reservoir, and such water and water rights, except when attached to particular lands as aforesaid, may be sold, leased, transferred and used in such manner and upon such lands as the owner of such rights or partial rights may desire, provided, that such water must be used for beneficial purposes.

History. Laws 1921, ch. 141, § 2; R.S. 1931, § 122-1602; C.S. 1945, § 71-613; W.S. 1957, § 41-37.

Primary purpose of section. —

Prior to the enactment of this section in 1921, all water rights, including reservoir rights, were attached to the land and could not be diverted therefrom. The primary purpose of the legislature in enacting this section was to permit the diversion of reservoir rights from the land. The means to accomplish this purpose under this section is by deed. Sturgeon v. Brooks, 73 Wyo. 436, 281 P.2d 675, 1955 Wyo. LEXIS 11 (Wyo. 1955).

Section deals with reservoir owner and owner of land to be irrigated. It does not purport to deal with third parties. A stranger to the transaction between the owner of a reservoir on the one hand and a landowner on the other, should not, ordinarily at least, be permitted to question the dealings between the latter, even though no deed was actually given for a reservoir. Sturgeon v. Brooks, 73 Wyo. 436, 281 P.2d 675, 1955 Wyo. LEXIS 11 (Wyo. 1955).

Conveyance of land and appurtenances without reservation of reservoir rights. —

Conceding that the landowner may sever his reservoir rights from his own lands, yet if he fails to do so and conveys his land with its appurtenances without reserving his reservoir rights which are appurtenant to the land, and does not in fact convey such rights to someone else or put the reservoir to use on other lands, there is no sound reason why the reservoir rights should not pass with the conveyance of the land. It would seem that in such case there is an implied intention to that effect, since the statute requires that water should be put to a beneficial use. Sturgeon v. Brooks, 73 Wyo. 436, 281 P.2d 675, 1955 Wyo. LEXIS 11 (Wyo. 1955).

Initiation of water right by trespass on land of another than initiator is voidable as against landowner, who has right to grant easement in land. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 1939 Wyo. LEXIS 37 (Wyo. 1939).

Description of land not required for permit. —

Statute does not require permits for reservoirs and storage water to incorporate description of lands to be irrigated. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Substitution possible. —

Under administrative law concerning storage water, irrigable acreage may be substituted for nonirrigable acreage included in original reservoir project. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Rights in surplus water. —

If reservoir has sufficient capacity above that required to satisfy contractual rights of owners of land in original project, reservoir owner has right to contract with others for use of storage water. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Quoted in

Condict v. Ryan, 79 Wyo. 231, 335 P.2d 792 (1959).

Stated in

Wheatland Irrigation Dist. v. Dodge, 387 P.2d 679, 1963 Wyo. LEXIS 130 (Wyo. 1963).

Cited in

Nebraska v. Wyoming, 325 U.S. 589, 65 S. Ct. 1332, 66 S. Ct. 1, 89 L. Ed. 1815, 1945 U.S. LEXIS 2620 (1945); Condict v. Ryan, 79 Wyo. 231, 335 P.2d 792 (1959).

Law reviews. —

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200 (1957).

For comment, “The Transfer of Water Rights for Use in the Oil Industry,” see V Land & Water L. Rev. 441 (1970).

Library References. —

American Law of Mining, 2nd Edition § 113.02 (Matthew Bender).

§ 41-3-324. Deeds and leases for water rights; execution and recording.

All deeds for reservoir water and water rights and all leases of the same for periods of three (3) years or more shall be executed and acknowledged as deeds are executed, and shall be recorded in the office of the county clerk of the county in which the reservoir is situated and also filed in the office of the state engineer. All leases of such water and water rights for a period less than three (3) years shall be in writing and filed in the office of the state engineer.

History. Laws 1921, ch. 141, § 4; R.S. 1931, § 122-1604; C.S. 1945, § 71-615; W.S. 1957, § 41-38.

Application. —

Federal land patents conveying land together with the right to use the water from a reservoir as an appurtenance to the irrigable lands fall within the meaning of this section and are, therefore, subject to the filing requirement. Stutzman v. Office of the Wyoming State Eng'r, 2006 WY 30, 130 P.3d 470, 2006 Wyo. LEXIS 33 (Wyo. 2006).

Filing not required. —

Although federal land patents conveying together with the right to use water from a reservoir as an appurtenance to irrigable lands fell under the mandatory filing requirements of this section, filing was properly denied when it had been previously adjudicated that no such rights existed. Stutzman v. Office of the Wyoming State Eng'r, 2006 WY 30, 130 P.3d 470, 2006 Wyo. LEXIS 33 (Wyo. 2006).

Mandatory filing. —

Pursuant to the clear language of this section, deeds for reservoir water and water rights must be filed in the state engineer's office. Stutzman v. Office of the Wyoming State Eng'r, 2006 WY 30, 130 P.3d 470, 2006 Wyo. LEXIS 33 (Wyo. 2006).

Law reviews. —

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200 (1957).

§ 41-3-325. Excess stored water to be furnished applicants; preferences; rates.

The owner or owners of a reservoir impounding a greater quantity of water than the owner or owners thereof necessarily use for irrigation and other beneficial purposes in connection with their own lands shall, when application is made to them for that purpose, furnish such surplus water at reasonable rates to the owners of lands lying under and capable of being irrigated from such reservoir for the purpose of irrigating and rendering the same productive, and maintaining their productiveness, and in case of refusal so to do, the owner or owners of such reservoir may be compelled by proper proceedings to furnish such water on such reasonable terms as to the court may seem meet and proper. The water user who may have used any water from such reservoir for any particular year shall have the preference as to the use of the same water for the next ensuing year. The state engineer, the water commissioner of the particular district and the water superintendent having jurisdiction over the region of any reservoir, shall together constitute a board of special commissioners, and shall have power, when application is made to them by either party interested, to establish reasonable maximum rates to be charged for the use of water from any reservoir, whether furnished by individuals or a corporation. The establishment of such rate shall be made only after notice given and public hearing had, at which hearing the applicants may produce witnesses and evidence, and such witnesses must be sworn and may be cross-examined. No commissioner shall sit upon such board and determine such rate who is employed by one (1) of the applicants or if the relationship of debtor or creditor exists between him and one (1) of the applicants. Nothing contained in this section shall be construed to deny the right to store water for use for more than one (1) year.

History. Laws 1921, ch. 141, § 5; R.S. 1931, § 122-1605; C.S. 1945, § 71-616; Laws 1947, ch. 24, § 1; 1955, ch. 223, § 1; W.S. 1957, § 41-39.

Section must be considered in pari materia with § 41-3-302 . Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Section take precedence over general statute. —

The specific provision of this section vesting jurisdiction over the region of any such reservoir in the board takes precedence over any general statute relating to common carriers, public utilities and rates in general. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Basic right to store reservoir water. —

The basic right to store reservoir water for irrigation purposes depends upon provisions for use of the water by the holders of primary permits, by the holders of secondary permits, and by the owners of other lands lying under and capable of being irrigated from the reservoir, in the order named. The constitution, statutes and decisions, fairly interpreted, mean that any rights to use such water in the state are based upon priority and beneficial use and are relevant to the rights of all interested parties. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Excess water controlled by state. —

Any water stored by a reservoir owner, over and above that covered by permits, is subject to control by the state in accordance with statute. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Meaning of “surplus water.” —

In an action to enforce payment for surplus water furnished as required by this section, the words “surplus water” will be taken to mean the water impounded by a reservoir owner, over and above that necessarily used for irrigation or other beneficial purposes in connection with his own lands. The definition in § 41-4-318 does not apply. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Individual rights to surplus water. —

Irrigation water, and more especially surplus water, cannot be treated as the absolute property of any individual. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Procedure for determining rates. —

The board, subject to the restrictions applicable to all administrative agencies, has reasonable latitude and discretion in determining the rates, as well as the elements and factors upon which the rates would depend. The functions of the board as to the rates to be charged for the use of surplus water and the functions of the public service commission of Wyoming as to the rates of various public utilities are not dissimilar. However, in reaching its determination the board must consider all relevant evidence and argument. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Hearing required even before 1955 amendment. —

Even before the 1955 amendment providing for certain requisite formalities for the meeting of the board to establish rates, thus insuring due process, this section by implication required a hearing by the board substantially similar to the one now required by law. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Board cannot ignore public interest and rights to beneficial use in regulated manner without encouraging monopoly and speculation. Therefore, any evidence or argument which bears on this phase of the situation is relevant in a surplus water rate hearing before the board. It tends to effectuate the control and supervision which the legislature meant to keep over surplus water. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Use outside boundaries. —

Contract under which district should convey specified number of acre-feet of storage capacity in its reservoir to named person for use on place outside district boundaries was not illegal. In re Greybull Valley Irrigation Dist., 52 Wyo. 479, 76 P.2d 339, 1938 Wyo. LEXIS 41 (Wyo.), reh'g denied, 52 Wyo. 479, 76 P.2d 339, 1938 Wyo. LEXIS 42 (Wyo. 1938).

Effect of lack of notice and brevity of hearing. —

Lack of notice and brevity of a rate hearing by the board would seem to deprive a purchaser of surplus water of the opportunity of presenting his view of the case to the board. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Disqualification of board member. —

The fact that a board member was paid money by the reservoir company and that the company owed him money for services rendered did not, per se, render a rate hearing unfair and impartial, but he should have disqualified himself. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Court must consider state's general public policy in construing irrigation district's powers incidental to its direct power to dispose of surplus water. In re Greybull Valley Irrigation Dist., 52 Wyo. 479, 76 P.2d 339, 1938 Wyo. LEXIS 41 (Wyo.), reh'g denied, 52 Wyo. 479, 76 P.2d 339, 1938 Wyo. LEXIS 42 (Wyo. 1938).

Abuse of discretion by court. —

In a suit filed by a reservoir company to compel payment for purchase of surplus water furnished the defendant based on rates established by the board pursuant to this section, a denial by the court of defendant's request for examination of the books and documents of the reservoir company constituted an abuse of discretion, where such denial deprived the defendant of a comprehensive review of the action of the board, and left defendant without having had an opportunity to be heard on what he considered was the crux of the case. Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Award of damages deemed error. —

Where repeated conduct of cotenants of reservoir gave impression that they regarded another cotenant as sole owner, their assertion thereafter of right in reservoir, without offering to pay proportionate share of expenses, absent any excuse for shift in their position, allowance of damages for cotenant's refusal to furnish water is error. Binning v. Miller, 55 Wyo. 478, 102 P.2d 64, 1940 Wyo. LEXIS 21 (Wyo.), reh'g denied, 56 Wyo. 129, 105 P.2d 278, 1940 Wyo. LEXIS 30 (Wyo. 1940).

§ 41-3-326. Applicability of ownership provisions.

The provisions of this act [§§ 41-3-320 , 41-3-322 through 41-3-327 ] shall apply to reservoirs heretofore lawfully constructed as well as to all reservoirs hereafter lawfully constructed.

History. Laws 1921, ch. 141, § 6; R.S. 1931, § 122-1606; C.S. 1945, § 71-617; W.S. 1957, § 41-40.

Editor's notes. —

Laws 1921, ch. 141, § 8, makes the act effective from and after passage. Approved February 23, 1921.

§ 41-3-327. Carey Act lands.

This act [§§ 41-3-320 , 41-3-322 through 41-3-327 ] shall not apply to Carey Act lands or reservoirs for their irrigation, nor to any water right or rights to the use of waters of natural streams of this state, initiated from such streams and used through any such reservoir. All acts and parts of acts in conflict herewith, excepting such as relate to Carey Act lands, are hereby repealed.

History. Laws 1921, ch. 141, § 7; R.S. 1931, § 122-1607; C.S. 1945, § 71-618; W.S. 1957, § 41-41.

Cross references. —

As to Carey Act lands generally, see chapter 7 of title 36.

Carey Act. —

The federal Carey Act, referred to in both sentences, appears as 43 U.S.C. § 641.

Cited in

Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Law reviews. —

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200 (1957).

§ 41-3-328. Witnesses' fees and mileage.

Every witness who shall attend before the court, or the judge thereof in vacation, or before the person appointed to take testimony in causes relating to water rights, under subpoena, by request of any party, shall be entitled to the same fees and mileage as witnesses in civil cases in the district court, and shall be paid by the party requiring the testimony.

History. Laws 1886, ch. 61, § 27; R.S. 1887, § 1357; R.S. 1899, § 975; C.S. 1910, § 752; C.S. 1920, § 873; R.S. 1931, § 122-1511; C.S. 1945, § 71-611; W.S. 1957, § 41-45.

Cross references. —

As to witness fees, see § 1-14-102 .

Cited in

State ex rel. Leazenby v. True, 26 Wyo. 314, 184 P. 229, 1919 Wyo. LEXIS 22 (1919); Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

§ 41-3-329. Change in point of diversion.

1. The storage of water by means of a reservoir is a diversion, and the point of diversion is the point defined in the permit where the longitudinal axis of the dam crosses the center of the streambed.
2. A change in point of diversion of a reservoir may be granted pursuant to W.S. 41-3-114 by the state engineer if the water right is unadjudicated, or by the state board of control if the water right has been adjudicated. No petition shall be granted if the rights of other appropriators shall be injuriously affected thereby or if the change is not within the original project concept. In deciding whether to grant or deny a proposed change in point of diversion of a reservoir within the original project concept, the state engineer or the board of control shall consider:
   1. The distance between the old point of diversion and the new point of diversion;
   2. The water administration problems which may be created by granting the change in the point of diversion;
   3. The effect of the petition upon Wyoming’s entitlement to water under compacts, court decrees and treaties;
   4. The rights of other appropriators; and
   5. The safety aspects of the new point of diversion.

History. Laws 1985, ch. 85, § 1.

§ 41-3-401. Failure to use water; extension of time; initiation by benefitted or injured user; hearing; appeal.

1. Where the holder of an appropriation of water from a surface, underground or reservoir water source fails, either intentionally or unintentionally, to use the water therefrom for the beneficial purposes for which it was appropriated, whether under an adjudicated or unadjudicated right, during any five (5) successive years, he is considered as having abandoned the water right and shall forfeit all water rights and privileges appurtenant thereto. Notwithstanding any provision in this section to the contrary, the holder of an appropriation for the diversion and storage of water in a reservoir, from which water or a portion thereof has not yet been beneficially used for the purposes for which appropriated, may apply to the board of control for an extension of time not to exceed five (5) years, within which to use water therefrom for the beneficial purposes for which it was appropriated. In the application the holder shall demonstrate the exercise of due diligence toward the utilization of the appropriation, and that notwithstanding the exercise of due diligence, reasonable cause exists for nonuse. Reasonable cause includes but is not limited to delay due to court or administrative proceedings, time required in planning, developing, financing and constructing projects for the application of stored water to beneficial use which require in excess of five (5) years to complete, delay due to requirement of state and federal statutes and rules and regulations thereunder and any other causes beyond the control of the holder of the appropriation. Upon receipt of an application for extension, the board of control shall proceed under the provisions of W.S. 16-3-101 through 16-3-115 and may grant an extension of time as it finds proper, not to exceed five (5) years, for the application of the appropriated water to the beneficial use for which it was appropriated. A prior grant of extension of time hereunder does not preclude the holder from applying for additional extensions of time, each not to exceed five (5) years, upon similar application and showing. The granting of an extension of time precludes the commencement of an abandonment action against the appropriation during the period of extension.
2. When any water user who might be benefitted by a declaration of abandonment of existing water rights or who might be injured by the reactivation of the water right, desires to bring about a legal declaration of abandonment, he shall present his case in writing to the state board of control. The board has exclusive original jurisdiction in water right abandonment proceedings. The board shall, if the facts so justify, refer the matter to the superintendent of the water division where the abandonment is claimed to have occurred for public hearing. The total absence of water to divert during an irrigation season precludes the inclusion of any such period of nonuse resulting therefrom in the computation of the successive five (5) year period under this section. The following persons have standing to petition the state board of control to declare the abandonment of existing water rights under this section:
   1. Any person who has a valid adjudicated water right or is the holder of a valid permit from the same source of supply which is equal to or junior in date of priority to the right for which abandonment is sought; or
   2. The holder of a valid water right entitled to surplus water under W.S. 41-4-318 through 41-4-324 , petitioning to abandon a water right from the same source of supply if the right sought to be abandoned has a priority date of March 1, 1945, or earlier.
3. The superintendent shall notify the holders of water rights sought to be abandoned by certified mail that a hearing will be held. The hearing shall be conducted pursuant to all applicable provisions of the Wyoming Administrative Procedure Act. All notices shall advise interested parties of the time, place and purpose of the hearing. Parties initiating abandonment actions are designated as contestants. Water right holders or other persons with interests in the rights allegedly abandoned are designated as contestees. In any case where notice by certified mail cannot be accomplished an advertisement published once a week for three (3) consecutive weeks in a newspaper of general circulation in the county in which the abandonment is alleged to have occurred, naming the parties in the case and setting forth the time, place and purpose of the hearing is sufficient. Cost of advertising shall be paid by the contestant.
4. A transcript shall be made of the hearing and delivered to the superintendent. The contestant shall provide and pay for the costs of the record. At the conclusion of the hearing the transcript, all other evidence and the report of the superintendent shall be transmitted to the board by the superintendent. At its next meeting the board shall vote to declare the right in question abandoned, either wholly or partially, or to decline to do so.
5. The board shall enter an order reflecting its action on the abandonment hearing, and shall, within sixty (60) days, send a certified copy of the declaration to each contestant and contestee. Appeals may be taken as provided by law.
6. An appropriation for irrigation use is not subject to partial abandonment for failure of the appropriator to irrigate part of the lands described in his permit or certificate of appropriation during the successive five (5) year period if:
   1. Facilities to divert the water and to apply it to beneficial use upon the lands which were not irrigated existed in usable form during the period of nonuse; and
   2. There was not a sufficient supply of water available, because of regulation for prior water rights or because shortage of supply resulted in insufficient water to satisfy the appropriation in full, to irrigate the lands for which abandonment is sought provided that a diligent effort was made to use the supply which was available.

History. Laws 1973, ch. 176, § 1; W.S. 1957, § 41-47.1; Laws 1977, ch. 100, § 1; ch. 126, § 1; 1985, ch. 203, § 1.

Wyoming Administrative Procedure Act. —

See § 16-3-101(a), (b)(xi).

Abandonment not shown. —

Owner's predecessor-in-interest waived any right he had to water under a canal permit when, in order to obtain a ditch enlargement permit, the predecessor submitted an affidavit requesting a canal permit be cancelled; that decision was made final when a ditch enlargement certificate of appropriation was issued in 1922. Abandonment was not shown because there was no formal abandonment or forfeiture procedure, as contemplated by prior and current law. General Adjudication of All Rights to Use Water in the Big Horn River Sys. & All Other Sources v. State, 2015 WY 104, 355 P.3d 1222, 2015 Wyo. LEXIS 119 (Wyo. 2015).

Purpose of statute. —

Statute providing for forfeiture by nonuser is aimed at the nonuser of the water and not to the nonuse of any particular ditch, canal or reservoir. Van Tassel Real Estate & Livestock Co. v. City of Cheyenne, 49 Wyo. 333, 54 P.2d 906, 1936 Wyo. LEXIS 49 (1935), cert. denied, 299 U.S. 574, 57 S. Ct. 38, 81 L. Ed. 423, 1936 U.S. LEXIS 282 (1936) (decided under prior law).

Waters subject to abandonment. —

Waters from sources within the classifications of Wyo. Const., art. 8, § 1 are subject to appropriation and, likewise, abandonment. Bruegman v. Johnson Ranches, Inc., 520 P.2d 489, 1974 Wyo. LEXIS 193 (Wyo. 1974).

Rights acquired by territorial decree are not vested, but could be lost by abandonment. Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (Wyo. 1925) (decided under prior law).

Supplemental water rights are subject to abandonment. Hofeldt v. Eyre, 849 P.2d 1295, 1993 Wyo. LEXIS 69 (Wyo. 1993).

An irrigation district, in challenging a state board of control decision that a portion of the district's water supply had been abandoned, failed to explain how a substantial injustice would befall it if the decision in Mishler v. State Bd. of Medical Examiners, 109 Nev. 287, 849 P.2d 291, 1993 Nev. LEXIS 49, was applied retroactively. Goshen Irrigation Dist. v. Wyoming State Bd. of Control, 926 P.2d 943, 1996 Wyo. LEXIS 158 (Wyo. 1996).

Subsection (a) amounts to forfeiture by statute if the facts fit the mandate. It leaves the board and the courts no room to save an appropriator from an abandonment petition where his water has not been used for the beneficial purposes for which it was appropriated for the “five (5) successive years” contemplated by the statute. Wheatland Irrigation Dist. v. Laramie Rivers Co., 659 P.2d 561, 1983 Wyo. LEXIS 285 (Wyo. 1983).

Abandonment must be effected by voluntary act and cannot be accomplished by enforced discontinuance. Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P.2d 572, 1939 Wyo. LEXIS 22 (Wyo. 1939) (decided under prior law).

Provisions of statute that failure to use water appropriated for period of two (now five) years is to be construed as an abandonment applies to a voluntary act, and not to an enforced discontinuance. Morris v. Bean, 146 F. 423, 1906 U.S. App. LEXIS 4115 (D. Mont. 1906), aff'd, 159 F. 651, 1908 U.S. App. LEXIS 4109 (10th Cir. 1908), aff'd, 221 U.S. 485, 31 S. Ct. 703, 55 L. Ed. 821, 1911 U.S. LEXIS 1749 (1911) (decided under prior law).

Forfeitures are not favored in law, and in cases of abandonment, the evidence must be clear and convincing that it was the intent of the owner to abandon. Ramsay v. Gottsche, 51 Wyo. 516, 69 P.2d 535, 1937 Wyo. LEXIS 35 (Wyo. 1937) (decided under prior law).

A water right cannot be held to be abandoned if nonuse caused by facts beyond user's control. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 1939 Wyo. LEXIS 37 (Wyo. 1939) (decided under prior law).

Water right would not be declared abandoned, where holder was forced to discontinue using water because upstream neighbor blocked ditches which would have supplied water to holder's property. Scott v. McTiernan, 974 P.2d 966, 1999 Wyo. LEXIS 32 (Wyo. 1999), reh'g denied, 1999 Wyo. LEXIS 49 (Wyo. Apr. 27, 1999).

Intent must be shown. —

In order that an initiated inchoate water right may be held to be abandoned, such intention must be shown. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (1940), rehearing denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (1940) (decided under prior law).

Forfeiture may only be avoided by application of water to beneficial use. Wheatland Irrigation Dist. v. Laramie Rivers Co., 659 P.2d 561, 1983 Wyo. LEXIS 285 (Wyo. 1983).

Undertaking repairs before filing of petition does not prevent forfeiture; only the use of the water will prevent a forfeiture. Wheatland Irrigation Dist. v. Laramie Rivers Co., 659 P.2d 561, 1983 Wyo. LEXIS 285 (Wyo. 1983).

Beneficial use deemed continuing obligation. —

Beneficial use is not a concept which is considered only at the time an appropriation is obtained. The concept represents a continuing obligation which must be satisfied in order for the appropriation to remain viable. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Continuously irrigated. —

For purposes of a dispute over a state water rights permit, it was determined that this statute provided guidance as to the meaning of “continuously irrigated,” and that the party with the burden of proving continuous irrigation had to provide affirmative proof that the property to be adjudicated was irrigated at least once every five years. State v. Hat Bar Cattle Co. (In re General Adjudication of All Rights to Use Water in the Big Horn River Sys.), 2015 WY 126, 358 P.3d 1265, 2015 Wyo. LEXIS 143 (Wyo. 2015).

Statutory procedure. —

The board and the courts have concurrent jurisdiction over questions of abandonment of water rights, but abandonment proceedings should be initiated before the board. Upon completion of the board's proceedings, the findings, conclusions and order determining the matter, including the record made if a party or the parties desire it, could then be certified by the board to the court. Upon completion of that task, the court would then be enabled to consider and dispose of whatever matters remained for disposal of the litigation. Kearney Lake, Land & Reservoir Co. v. Lake De Smet Reservoir Co., 487 P.2d 324, 1971 Wyo. LEXIS 230 (Wyo. 1971) (decided under prior law).

Lawful appropriation will not be declared lost in absence of plea of abandonment. —

Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (Wyo. 1925) (decided under prior law).

Burden of proving abandonment. —

The burden of proving abandonment rests upon the contestant. Ramsay v. Gottsche, 51 Wyo. 516, 69 P.2d 535, 1937 Wyo. LEXIS 35 (Wyo. 1937) (decided under prior law).

Burden of proving water was not available, excusing nonuse in an abandonment hearing, is on the contestee. In re North Laramie Land Co., 605 P.2d 367, 1980 Wyo. LEXIS 228 (Wyo. 1980).

Standing of petitioner. —

Subsection (b) confers standing to a petitioner who alleges and proves three essential facts: (1) That he possesses a valid water right of equal or junior status to the water right sought to be abandoned; (2) that the water right relied upon by the petitioner and the water right for which a declaration of abandonment is sought are from the same source of supply; and (3) that the petitioner stands to benefit from a declaration of abandonment or to sustain injury by reactivation of the contested water right. Schulthess v. Carollo, 832 P.2d 552, 1992 Wyo. LEXIS 63 (Wyo. 1992).

Plaintiffs lacked standing. —

Evidence was not sufficient to reasonably find that the creek was limited in supply as would have indicated a reasonable likelihood of regulation and, if anything, the evidence indicated more than an adequate supply, and there was not sufficient evidence that the creek experienced historical shortages. Thus, plaintiffs' injury was too speculative to indicate a reasonable likelihood of injury or benefit, and they failed to meet the standing requirements for filing a petition of abandonment. Snider v. Kirchhefer, 2005 WY 71, 115 P.3d 1, 2005 Wyo. LEXIS 83 (Wyo. 2005).

Requisite of “tangible” interest. —

This section requires that a petitioner have a “tangible” as opposed to a “theoretical” interest at stake to establish standing, and the petitioner must prove a reasonable likelihood that the abandonment of another person's water rights will either benefit or injure the surplus water right of the petitioner. Schulthess v. Carollo, 832 P.2d 552, 1992 Wyo. LEXIS 63 (Wyo. 1992); Goshen Irrigation Dist. v. Wyoming State Bd. of Control, 926 P.2d 943, 1996 Wyo. LEXIS 158 (Wyo. 1996).

Conservation district was not user “who might be affected by declaration of abandonment,” as it appears that its own rights would not thereby be enlarged. Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P.2d 572, 1939 Wyo. LEXIS 22 (Wyo. 1939) (decided under prior law).

Where there was nonuser of water right for 20 years prior to 1908, while thereafter appropriator used all water available thereunder, conservation district was not entitled, in 1933, to have the water right declared abandoned. Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P.2d 572, 1939 Wyo. LEXIS 22 (Wyo. 1939) (decided under prior law).

Appropriator's rights not “affected” unless injury shown. —

An appropriator's rights are not “affected” for the purpose of bringing abandonment unless he is able to show injury. Cremer v. State Bd. of Control, 675 P.2d 250, 1984 Wyo. LEXIS 241 (Wyo. 1984) (decided prior to 1985 amendment).

Injury factor is the jurisdictional requirement which must be present before one water user may bring an abandonment petition against the water rights of others; the complainant must be able to allege and prove that his water right has been abridged by the use or misuse that the contestee makes of the water in which the contestant has a protective interest. Platte County Grazing Ass'n v. State Bd. of Control, 675 P.2d 1279, 1984 Wyo. LEXIS 244 (Wyo. 1984) (decided prior to 1985 amendment).

Speculation is an issue during an application proceeding, pursuant to § 41-4-503 , and during the final stages leading to a certificate of appropriation, pursuant to § 41-4-511 , and it may also be an issue during an abandonment proceeding, pursuant to this section. Denius v. T R Twelve, Inc., 589 P.2d 374, 1979 Wyo. LEXIS 345 (Wyo. 1979).

Improvement of priority not a “benefit.” —

Improvement of priority is too speculative, uncertain and tenuous to demonstrate a benefit; a relative improvement in priority, standing alone, is not sufficient to show a benefit. Joe Johnson Co. v. Wyoming State Bd. of Control, 857 P.2d 312, 1993 Wyo. LEXIS 131 (Wyo. 1993).

“Same source of supply.” —

Nothing in subsection (b) of this section specifically, or in title 41 generally, indicates that the legislature intended that the words “same source of supply” mean “same stream system.” Quite to the contrary, review of title 41 demonstrates that “stream system” and “source of supply” are terms of art employed by the legislature depending upon the result to be achieved. Schulthess v. Carollo, 832 P.2d 552, 1992 Wyo. LEXIS 63 (Wyo. 1992).

The phrase “same source of supply” in subsection (b) requires that a petitioner for abandonment allege and prove that the respondent's water right, if not from an identical water source, is from a water source which contributes significantly to the water source upon which the petitioner relies to satisfy his appropriation. Schulthess v. Carollo, 832 P.2d 552, 1992 Wyo. LEXIS 63 (Wyo. 1992).

Junior water-rights holders may contest administration of unquantified stream water. —

The holders of junior water rights in a stream certainly had standing to contest the administration of the stream water that was not quantified by the prior adjudication of the water right. The junior water rights would not have been satisfied, absent some requested relief, due to the lack of water in the stream to satisfy all appropriators. Zezas Ranch v. Board of Control, 714 P.2d 759, 1986 Wyo. LEXIS 481 (Wyo. 1986).

No abandonment where senior appropriators consistently diverted full amount of available water. —

Contestants failed to prove an abandonment. The senior appropriators consistently diverted the full amount of water that was available when the flow of water fell below a certain amount, and contacted a water official for administrative regulation. Lewis v. State Bd. of Control, 699 P.2d 822, 1985 Wyo. LEXIS 483 (Wyo. 1985).

Contestee's failure to use available water not excused by order limiting water storage. —

The fact that the state engineer had issued an order limiting the contestee's storage of water did not excuse the contestee's failure to fully use the water available under its appropriation and did not constitute a defense under subsection (b) to an action for a declaration of abandonment. Additionally, the board had no obligation to determine the exact volume of water available, but not used, for storage during the years in contest. The only defense to a forfeiture proceeding where nonuse of water is established is proof of the “total” absence of water to divert. Laramie Rivers Co. v. Wheatland Irrigation Dist., 708 P.2d 20, 1985 Wyo. LEXIS 572 (Wyo. 1985).

Water right “affected” where contestee's unused water used to fulfill contestant's appropriation. —

A contestant junior downstream reservoir appropriator possessed standing to bring partial abandonment under subsection (b) against a senior reservoir appropriator where the junior undertook to establish that his appropriation was “affected” (as contemplated by subsection (b)) by the senior's failure to apply water for beneficial use for the statutory period of time under facts which showed: (1) that the junior's existing water right had historically been unfulfilled by the stream flow, whether the senior diverted the contested water or not; but (2) that the undiverted flow of contested water has in the past served, and would in the future serve, to more nearly approximate the fulfillment of the reservoir authority of the junior. “Injury” to the contestant's water rights resulted from the ever-present danger and probability that the contestee would one day exercise its prerogative of “resuscitating” its abandoned reservoir water right by reapplication to beneficial use, thereby depriving the contestant's lawful utilization of the abandoned water. Laramie Rivers Co. v. Wheatland Irrigation Dist., 708 P.2d 20, 1985 Wyo. LEXIS 572 (Wyo. 1985) (decided under facts existing prior to 1985 amendment).

But not where contestant has used contestee's water in excess of contestant's appropriation. —

The board did not identify a water right of the contestant which would have been abridged by the reapplication, after five years, of the contestee's water to beneficial use, but only said that the contestant established a pattern of use of the contestee's water, in excess of the contestant's appropriation, which would have been interrupted in the event abandonment by the contestee was not declared. Thus, the contestant was not possessed of standing to seek a declaration of abandonment. Board of Land Comm'rs v. Lonesome Fox Corp., 707 P.2d 167, 1985 Wyo. LEXIS 577 (Wyo. 1985) (decided under facts existing prior to 1985 amendment).

No standing where effect of abandonment would be to enlarge contestant's appropriation. —

A water user may not bootstrap standing for the purpose of bringing abandonment of his neighbor's water rights when the only effect of the abandonment would be to enlarge the contestant's appropriation as distinguished from protecting his right to use his previously appropriated water. Cremer v. State Bd. of Control, 675 P.2d 250, 1984 Wyo. LEXIS 241 (Wyo. 1984) (decided prior to 1985 amendment).

Contestant's burden to establish actual volume of water in contestee's reservoir. —

The contestant bore the burden of establishing the actual volume of water in the contestee' reservoir represented by a certain elevation, which elevation was the limitation set by the state engineer. Proof of such storage volume identified the portion of the contestee's storage rights above that elevation which were subject to a declaration of abandonment. Laramie Rivers Co. v. Wheatland Irrigation Dist., 708 P.2d 20, 1985 Wyo. LEXIS 572 (Wyo. 1985).

Evidence insufficient to support board's finding. —

Evidence did not support the board of control's determination of the amount of supplemental water that an irrigation district was diverting in the preceding five-year period where the pumping was not measured in any definitive way. Goshen Irrigation Dist. v. Wyoming State Bd. of Control, 926 P.2d 943, 1996 Wyo. LEXIS 158 (Wyo. 1996).

Surplus Water Law cannot bestow junior appropriator standing upon base right senior appropriator. —

Since a 1945 surplus water appropriation may not be abandoned for nonuse without abandoning the water right upon which it depends and to which it is attached, and since § 41-4-324 prohibits use of the surplus water provisions to attack base rights, the Surplus Water Law (§§ 41-4-317 through 41-4-324 ) may not be used for the purpose of bestowing junior appropriator standing upon a base right senior appropriator so that such senior appropriator may establish that he is “affected” within the purview of this section. Cremer v. State Bd. of Control, 675 P.2d 250, 1984 Wyo. LEXIS 241 (Wyo. 1984) (decided prior to 1985 amendment).

Formal declaration prerequisite to forfeiture of vested rights. —

Before the forfeiture of vested water rights provided for by this section should be construed to be operative, there should be a formal declaration thereof procured by someone clothed by law with proper authority to invoke it. It is quite obvious, too, that until a declaration of forfeiture has been made the owner of the water right still retains the title to it and is justified, of course, in his continued use thereof. Sturgeon v. Brooks, 73 Wyo. 436, 281 P.2d 675, 1955 Wyo. LEXIS 11 (Wyo. 1955) (decided under prior law).

Until a declaration of forfeiture is obtained pursuant to this section, it is obvious that owner of a water right retains title. Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P.2d 572, 1939 Wyo. LEXIS 22 (Wyo. 1939) (decided under prior law).

Statutory exception. —

An irrigation district's contention that partial abandonment of its supplemental water supply was prohibited by subsection (f) was without merit where it did not have the facilities in place to divert its entire appropriation. Goshen Irrigation Dist. v. Wyoming State Bd. of Control, 926 P.2d 943, 1996 Wyo. LEXIS 158 (Wyo. 1996).

Implicit repeal not established. —

The legislature did not implicitly repeal this section by making appropriations of two new pumps to an irrigation district, notwithstanding evidence of abandonment. Goshen Irrigation Dist. v. Wyoming State Bd. of Control, 926 P.2d 943, 1996 Wyo. LEXIS 158 (Wyo. 1996).

Board does not have jurisdiction to consider contractual matters. Bruegman v. Johnson Ranches, Inc., 520 P.2d 489, 1974 Wyo. LEXIS 193 (Wyo. 1974).

Applied in

Wallis v. Luman, 625 P.2d 759, 1981 Wyo. LEXIS 310 (Wyo. 1981).

Quoted in

Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 656 P.2d 1144, 1983 Wyo. LEXIS 270 (Wyo. 1983).

Stated in

In re Various Water Rights in Lake De Smet Reservoir, 623 P.2d 764, 1981 Wyo. LEXIS 288 (Wyo. 1981); Wyoming v. United States, 933 F. Supp. 1030, 1996 U.S. Dist. LEXIS 11526 (D. Wyo. 1996).

Cited in

Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Law reviews. —

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200.

For article, “Administrative Law, Wyoming Style,” see XVIII Land & Water L. Rev. 223 (1983).

For case note, “Water Law — The State Engineer's Authority with Reference to Change of Use, Place of Use, Point of Diversion and Means of Conveyance of Water Embraced by Water Permits: Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983),” see XIX Land & Water L. Rev. 59 (1984).

For case note, “Water Law — Statutory Forfeiture of Water Rights in Wyoming: Wheatland Irr. Dist. v. Laramie Rivers Co., 659 P.2d 561, 1983 Wyo. LEXIS 285 (Wyo. 1983),” see XIX Land & Water L. Rev. 93 (1984).

For comment, “Solar Access Rights in Wyoming,” see XIX Land & Water L. Rev. 419 (1984).

For casenote, “Water Law — Standing Requirement Under the Wyoming Forfeiture Statute: Platte County Grazing Association v. State Board of Control, 675 P.2d 1279, 1984 Wyo. LEXIS 244 (Wyo. 1984),” see XIX Land & Water L. Rev. 485 (1984).

For comment, “The Doctrine of Sovereign Immunity in Wyoming: Current Status of the Doctrine and Arguments for Abrogation,” see XX Land & Water L. Rev. 221 (1985).

For comment, “Forfeiture Proceedings in Wyoming Water Law: The Legislature Revives Private Standing,” see XX Land & Water L. Rev. 459 (1985).

For article, “An Essay on Wyoming Constitutional Interpretation,” see XXI Land & Water L. Rev. 527 (1986).

For article, “Wyoming's Groundwater Laws: Quantity and Quality Regulation,” see XXIV Land & Water L. Rev. 39 (1989).

For article, “A Critical Look at Wyoming Water Law,” see XXIV Land & Water L. Rev. 307 (1989).

For article, “Waist Deep in the Big Muddy: Property Rights, Public Values and Instream Waters,” see XXVI Land & Water L. Rev. 535 (1991).

Library References. —

American Law of Mining, 2nd Edition § 113.02 (Matthew Bender).

§ 41-3-402. Initiation by state engineer; hearing; appeal.

1. When any appropriator has failed, intentionally or unintentionally, to use any portion of surface, underground or reservoir water appropriated by him, whether under an adjudicated or unadjudicated right, for a period of five (5) successive years, the state engineer may initiate forfeiture proceedings against the appropriator with the state board of control, to determine the validity of the unused right. The state engineer shall designate the area to be affected by the proceedings, not to contain in area more than one (1) water division. The total absence of water to divert during an irrigation season precludes the inclusion of any period of nonuse resulting therefrom in the computation of the successive five (5) year period. The secretary of the board shall refer the matter for a hearing to the superintendent of the water division where the forfeiture is alleged to have occurred. This section does not apply to any reservoir for which an extension has been granted during the period of extension under W.S. 41-3-401(a).
2. The superintendent shall send notices, by certified mail, of the time, place, and purpose of the hearing to all owners of lands covered by the appropriations involved in the forfeiture proceeding. Such persons shall be joined as parties to the forfeiture proceedings as contestees. The state shall be designated as contestant. In a case where notice by certified mail cannot be accomplished, an advertisement published once a week for three (3) consecutive weeks in a newspaper of general circulation in the county in which the forfeiture is alleged to have occurred, naming the parties in the case and setting forth the time, place, and purpose of the hearing, and a general description of the water rights whose status is under consideration, shall answer the requirements of notice. Notice by certified mail shall first be attempted before notice by advertisement is employed. Advertisement costs shall be paid by the state engineer. In addition, whenever it appears necessary for full and proper notice, the superintendent may post a notice of the hearing in a conspicuous place on the land or at the place where the water rights are attached or utilized, or on the point of diversion.
3. Any use of a contested water right, easement, privilege, or portion thereof, by the water user, his lessees, agents, transferees or assignees on or after the date of the notice shall be inadmissible as evidence of beneficial use in all hearings or appeals arising out of the alleged forfeiture.
4. A transcript shall be made of the hearing. The record shall be delivered to the superintendent. The state engineer shall provide and pay for the costs of such record. At the conclusion of the hearing, the transcript, all other evidence, and the report of the superintendent shall be transmitted to the board of control by the superintendent. At its next meeting, the board shall vote by secret written ballot to declare the right in question forfeited or to decline to do so. Any forfeiture requires three (3) affirmative votes by the board.
5. Whenever the state engineer has initiated forfeiture proceedings, he shall not participate as a voting member of the board of control in any determination of whether any water right, easement, or privilege is to be forfeited, all other laws to the contrary notwithstanding.
6. Such proceedings shall not be initiated by the state engineer after the use of a water right, easement or privilege has occurred.
7. Any time within two (2) years after the date the board has entered an order forfeiting a water right, any person who can demonstrate to the satisfaction of the board by written petition, proof, or affidavits, that he was an owner, lessee or beneficiary of the forfeited right, that he had no actual or constructive notice of the forfeiture hearings, and that he has been damaged thereby, may require the board to reopen the case for a determination of whether such right shall remain forfeited or be reactivated without loss of priority.
8. Whenever the board has declared any water right forfeited, it shall send a certified copy of the declaration to each contestee within sixty (60) days. Such party may within thirty (30) days after the date of mailing, appeal to the district court of the district wherein the hearing was originally held or in the district court of Laramie county.
9. Nothing in this section shall be construed to allow the state engineer to initiate forfeiture proceedings against water rights which are being put to beneficial use, wholly or in part.

History. Laws 1973, ch. 176, § 1; W.S. 1957, § 41-47.2; Laws 1977, ch. 126, § 1.

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

Abandonment not shown. —

Owner's predecessor-in-interest waived any right he had to water under a canal permit when, in order to obtain a ditch enlargement permit, the predecessor submitted an affidavit requesting a canal permit be cancelled; that decision was made final when a ditch enlargement certificate of appropriation was issued in 1922. Abandonment was not shown because there was no formal abandonment or forfeiture procedure, as contemplated by prior and current law. General Adjudication of All Rights to Use Water in the Big Horn River Sys. & All Other Sources v. State, 2015 WY 104, 355 P.3d 1222, 2015 Wyo. LEXIS 119 (Wyo. 2015).

Beneficial use deemed continuing obligation. —

Beneficial use is not a concept which is considered only at the time an appropriation is obtained. The concept represents a continuing obligation which must be satisfied in order for the appropriation to remain viable. Basin Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 1978 Wyo. LEXIS 285 (Wyo. 1978).

Law reviews. —

For article, “Administrative Law, Wyoming Style,” see XVIII Land & Water L. Rev. 223 (1983).

For case note, “Water Law — The State Engineer's Authority with Reference to Change of Use, Place of Use, Point of Diversion and Means of Conveyance of Water Embraced by Water Permits: Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983),” see XIX Land & Water L. Rev. 59 (1984).

For case note, “Water Law — Statutory Forfeiture of Water Rights in Wyoming: Wheatland Irr. Dist. v. Laramie Rivers Co., 659 P.2d 561, 1983 Wyo. LEXIS 285 (Wyo. 1983),” see XIX Land & Water L. Rev. 93 (1984).

For comment, “Solar Access Rights in Wyoming,” see XIX Land & Water L. Rev. 419 (1984).

For casenote, “Water Law — Standing Requirement Under the Wyoming Forfeiture Statute: Platte County Grazing Association v. State Board of Control, 675 P.2d 1279, 1984 Wyo. LEXIS 244 (Wyo. 1984),” see XIX Land & Water L. Rev. 485 (1984).

For comment, “Forfeiture Proceedings in Wyoming Water Law: The Legislature Revives Private Standing,” see XX Land & Water L. Rev. 459 (1985).

For article, “Wyoming's Groundwater Laws: Quantity and Quality Regulation,” see XXIV Land & Water L. Rev. 39 (1989).

For article, “A Critical Look at Wyoming Water Law,” see XXIV Land & Water L. Rev. 307 (1989).

§ 41-3-501. Water divisions defined.

1. The state of Wyoming is hereby divided into four (4) water divisions, as follows:
   1. Water Division No. 1 shall consist of all lands within this state, drained by the North Platte River, and the tributaries of the North Platte River and the South Platte River, Snake River, (a tributary of Green River) and its tributaries, and Running Water Creek and its tributaries;
   2. Water Division No. 2 shall consist of all lands within this state, drained by the tributaries of the Yellowstone and Missouri Rivers north of the water shed of the North Platte River and Running Water Creek, and east of the summit of the Big Horn Mountains;
   3. Water Division No. 3 shall consist of all lands within this state drained by the Big Horn River and its tributaries, and by Clark’s Fork and its tributaries;
   4. Water Division No. 4 shall consist of all lands within this state drained by the Green, Bear and Snake Rivers, and the tributaries thereof; except Snake River, (a tributary of Green River), and its tributaries.

History. Laws 1890-91, ch. 8, §§ 1-5; 1895, ch. 62, §§ 1-3; R.S. 1899, § 848; C.S. 1910, § 753; C.S. 1920, § 874; R.S. 1931, § 122-201; C.S. 1945, § 71-101; W.S. 1957, § 41-54.

History of section. —

The basic law concerning the regulation and control of water rights was Laws 1890-91, ch. 8, which repealed the bulk of the previously existing laws on the subject. As amended and supplemented, Laws 1890-91, ch. 8, appears in this compilation as §§ 9-1-902 , 41-3-501 through 41-3-504 , 41-3-506 through 41-3-602 , 41-3-604 through 41-3-609 , 41-3-611 , 41-3-613 through 41-3-615 , 41-4-101 , 41-4-201 , 41-4-206 , 41-4-301 through 41-4-309 , 41-4-312 through 41-4-314 , 41-4-316 , 41-4-317 , 41-4-325 , 41-4-401 through 41-4-512 and 41-4-517 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Powers and duties of water commissioners. —

Water commissioners are not vested with arbitrary control; instead, they are required to see that water is divided among the several appropriators in strict accordance with adjudicated or determined rights. Mitchell Irr. Dist. v. Sharp, 121 F.2d 964, 1941 U.S. App. LEXIS 3370 (10th Cir. Wyo.), cert. denied, 314 U.S. 667, 62 S. Ct. 129, 86 L. Ed. 534, 1941 U.S. LEXIS 241 (U.S. 1941).

Division superintendents and water commissioners are charged exclusively with administrative duties in superintending diversion and distribution of water in strict conformity with adjudicated or determined priorities. Mitchell Irr. Dist. v. Sharp, 121 F.2d 964, 1941 U.S. App. LEXIS 3370 (10th Cir. Wyo.), cert. denied, 314 U.S. 667, 62 S. Ct. 129, 86 L. Ed. 534, 1941 U.S. LEXIS 241 (U.S. 1941).

Suit against state. —

Nebraska irrigation district action to restrain Wyoming water officials from unlawfully permitting junior appropriators to take water and to compel distribution in proper order is not suit against state. Mitchell Irr. Dist. v. Sharp, 121 F.2d 964, 1941 U.S. App. LEXIS 3370 (10th Cir. Wyo.), cert. denied, 314 U.S. 667, 62 S. Ct. 129, 86 L. Ed. 534, 1941 U.S. LEXIS 241 (U.S. 1941).

Stated in

In re General Adjudication of All Rights to Use Water in Big Horn River Sys., 753 P.2d 76, 1988 Wyo. LEXIS 26 (Wyo. 1988).

Cited in

Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Law reviews. —

For comment, “Wyoming's Experience With Federal Non-Indian Reserved Rights: The Big Horn Adjudication,” see XXI Land & Water L. Rev. 433 (1986).

For article, “Aldo Leopold and Western Water Law: Thinking Perpendicular to the Prior Appropriation Doctrine,” see XXIV Land & Water L. Rev. 1 (1989).

§ 41-3-502. Superintendents; appointment; removal; number; qualifications; examination.

There shall be one (1) superintendent for each division, who shall be appointed by the governor and who shall be a resident of the water division for which he is appointed. The governor may remove any superintendent as provided in W.S. 9-1-202 . The state engineer shall from time to time conduct examinations for candidates for the position of division superintendents, and a list of those who qualify shall be filed with the governor and the governor, from that list, shall appoint division superintendents for the various divisions as vacancies occur. No candidate is eligible for appointment as division superintendent unless he is qualified by training and experience. The examination shall consist of questions relative to the irrigation laws and their administration, the measurement of flowing water, evaporation, seepage, drainage and the hydrographic features of the water division in which the candidate seeks appointment.

History. Laws 1890-91, ch. 8, § 13; R.S. 1899, § 849; Laws 1907, ch. 86, § 3; C.S. 1910, § 754; C.S. 1920, § 875; Laws 1925, ch. 166, § 1; R.S. 1931, § 122-202; Laws 1941, ch. 118, § 1; C.S. 1945, § 71-102; W.S. 1957, § 41-55; Laws 1963, ch. 125, § 1; 1971, ch. 190, § 20; 1987, ch. 175, § 1.

Duties are executive. —

Duties and powers of water commissioners and superintendents of water divisions, in respect to division of water among appropriators according to their prior rights, are executive and not judicial, though sometimes a limited judicial discretion may be necessary. Ryan v. Tutty, 13 Wyo. 122, 78 P. 661, 1904 Wyo. LEXIS 30 (Wyo. 1904).

Removal of officers. —

A state superintendent of a water district is a state officer who may be removed by the governor, as the impeachment provisions of the constitution do not apply. State ex rel. Hamilton v. Grant, 14 Wyo. 41, 81 P. 795, 1905 Wyo. LEXIS 29 (Wyo.), reh'g denied, 14 Wyo. 41, 81 P. 795, 1905 Wyo. LEXIS 30 (Wyo. 1905).

§ 41-3-503. Superintendents; duties generally.

Said division superintendent shall have general control over the water commissioners of the several districts within his division. He shall, under the general supervision of the state engineer, execute the laws relative to the distribution of water in accordance with the rights of priority of appropriation, and perform such other functions as may be assigned to him by the state engineer. It shall be the duty of said division superintendent to regulate and control the storage and use of water under all rights of appropriation which have been adjudicated by the board of control or by the courts, and to regulate and control the storage and use of water under all permits approved by the state engineer, whether the rights acquired thereunder have been adjudicated or not.

History. Laws 1890-91, ch. 8, § 14; R.S. 1899, § 850; C.S. 1910, § 755; Laws 1917, ch. 36, § 1; C.S. 1920, § 876; R.S. 1931, § 122-203; C.S. 1945, § 71-103; W.S. 1957, § 41-57.

Adjudications. —

A decision of a commissioner and superintendent as to right to use of water, though not appealed from, is not an adjudication conclusive on the courts. Ryan v. Tutty, 13 Wyo. 122, 78 P. 661, 1904 Wyo. LEXIS 30 (Wyo. 1904).

Adjudications by the board were prima facie correct, though not binding on persons not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Presumptions by appropriator. —

Appropriator may presume not only that appropriators above him are taking only amount of water to which they are entitled, but also that officials who regulate and distribute waters of the state are doing their duty. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Cited in

State ex rel. Hamilton v. Grant, 14 Wyo. 41, 81 P. 795, 1905 Wyo. LEXIS 29 (1905); In re The General Adjudication of All Rights to Use Water in the Big Horn River System and All Other Sources, State of Wyoming, 835 P.2d 273, 1992 Wyo. LEXIS 71 (Wyo. 1992).

Law reviews. —

For article, “Wyoming's Groundwater Laws: Quantity and Quality Regulation,” see XXIV Land & Water L. Rev. 39 (1989).

§ 41-3-504. Superintendents; powers generally.

Said division superintendent shall have authority to order, in writing, the construction of suitable ditches to carry the return waters from any ditch or lands to the main stream or proper waste way; he shall have the authority, and it shall be his duty, to close or cause to be closed the headgate of any person, persons or corporation so ordered, until such time as said order is complied with; he shall have authority to instruct the water commissioners in his division to brand, number or mark the headgate of any and all canals, ditches, laterals and reservoir outlets in such manner that the owner or owners of said canals, ditches, laterals or reservoir outlets may be readily determined; he shall, in the distribution of water, be governed by the provisions of law relating to water rights, but for the better discharge of his duties, he shall have authority to make such other regulations to secure the equal and fair distribution of water in accordance with the rights of priority of appropriation as may, in his judgment, be needed in his division; provided, such regulations shall not be in violation of the laws of the state, but shall be merely supplementary to and necessary to enforce the provisions of the general laws and amendments thereto.

History. Laws 1890-91, ch. 8, § 15; R.S. 1899, § 851; Laws 1909, ch. 61, § 1; C.S. 1910, § 756; Laws 1915, ch. 70, § 1; C.S. 1920, § 877; R.S. 1931, § 122-204; C.S. 1945, § 71-104; W.S. 1957, § 41-58.

Duties are executive. —

Duties and powers of water commissioners and superintendents of water divisions, in respect to division of water among appropriators according to their prior rights, are executive and not judicial, though sometimes a limited judicial discretion may be necessary. Ryan v. Tutty, 13 Wyo. 122, 78 P. 661, 1904 Wyo. LEXIS 30 (Wyo. 1904).

§ 41-3-505. Superintendents; compensation and traveling expenses; full time devoted to duties.

Each division superintendent of a water division shall receive an annual salary as determined by the human resources division of the department of administration and information, payable in monthly installments in full compensation for all his services, and shall, in addition thereto, be paid his actual traveling expenses when called away from home in the performance of his duties. Such superintendents shall devote their full time to the performance of their duties as division water superintendents. Their salaries and expenses shall be paid by the state on vouchers approved by the state engineer as president of the state board of control.

History. Laws 1899, ch. 59, § 2; R.S. 1899, § 855; Laws 1903, ch. 41, § 1; 1907, ch. 49, § 1; C.S. 1910, § 759; C.S. 1920, § 880; Laws 1921, ch. 95, § 28; R.S. 1931, § 122-207; Laws 1933, ch. 103, § 8; 1945, ch. 142, § 1; C.S. 1945, § 71-107; Laws 1953, ch. 139, § 32; 1957, ch. 157, § 39; W.S. 1957, § 41-59; Laws 1963, ch. 125, § 2; 1969, ch. 168, § 38; 1971, ch. 190, § 19; 1997, ch. 178, § 1.

Cross references. —

As to salaries and fees of public officers, see Wyo. Const. art. 14, §§ 1 and 2.

Repealing clauses. —

Laws 1899, ch. 59, § 3, repealed all laws and parts of laws in conflict therewith.

§ 41-3-506. Superintendents; appeal from order or regulations.

Any person, ditch company, or ditch owner, who may deem himself injured or discriminated against by any such order or regulations of such division superintendent, shall have the right to appeal from the same to the state engineer, by filing with the state engineer a copy of the order or regulations complained of, and a statement of the manner in which the same injuriously affects the petitioner’s interest. The state engineer shall, after due notice, hear whatever testimony may be brought forward by the petitioner, either orally or by affidavit and, through the division superintendent, shall have power to suspend, amend or confirm the order complained of.

History. Laws 1890-91, ch. 8, § 16; R.S. 1899, § 852; C.S. 1910, § 757; C.S. 1920, § 878; R.S. 1931, § 122-205; C.S. 1945, § 71-105; W.S. 1957, § 41-60.

§ 41-3-601. Division of state into districts.

The board of control shall divide the state into water districts, said water districts to be so constituted as to secure the best protection to the claimants for water and the most economical supervision on the part of the state; in laying out such districts each stream system of practicable administrative scope shall be included within a single district.

History. Laws 1890-91, ch. 8, § 40; R.S. 1899, § 888; C.S. 1910, § 799; C.S. 1920, § 920; R.S. 1931, § 122-301; Laws 1933, Sp. Sess., ch. 26, § 1; C.S. 1945, § 71-301; W.S. 1957, § 41-61.

Adjudication. —

Under this section and the following sections, a decision of a commissioner and superintendent as to right to use of water, though not appealed from, is not an adjudication conclusive on the courts. Ryan v. Tutty, 13 Wyo. 122, 78 P. 661, 1904 Wyo. LEXIS 30 (Wyo. 1904).

Adjudication means the determination of priorities by the board and need not cover all appropriations on the streams and tributaries involved. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Authority to divide. —

Where the board adjudicated waters between two streams in separate proceedings, the water commissioner had authority to divide the water between the two streams though the proceedings were not binding on persons on one stream who were not parties to the adjudication proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Where board adjudicated priorities on a stream and the tributary in separate proceedings, though appropriators on one stream were not parties to the action respecting the other, adjudications were sufficient to give power to the water commissioner to divide the water between the streams, though the proceedings were not binding on those not parties. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Water commissioners are not vested with arbitrary control; instead they are required to see that water is divided among the several appropriators in strict accordance with adjudicated or determined rights. Mitchell Irr. Dist. v. Sharp, 121 F.2d 964, 1941 U.S. App. LEXIS 3370 (10th Cir. Wyo.), cert. denied, 314 U.S. 667, 62 S. Ct. 129, 86 L. Ed. 534, 1941 U.S. LEXIS 241 (U.S. 1941).

Suit against state. —

Nebraska irrigation district action to restrain Wyoming water officials from unlawfully permitting junior appropriators to take water and to compel distribution in proper order is not suit against state. Mitchell Irr. Dist. v. Sharp, 121 F.2d 964, 1941 U.S. App. LEXIS 3370 (10th Cir. Wyo.), cert. denied, 314 U.S. 667, 62 S. Ct. 129, 86 L. Ed. 534, 1941 U.S. LEXIS 241 (U.S. 1941).

Cited in

Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Law reviews. —

For article, “Priority and Progress — Case Studies in the Transfer of Water Rights,” see I Land & Water L. Rev. 1 (1966).

For article, “Transfer of Water Rights — Errata and Addenda — Sales for Recreational Purposes and to Districts,” see II Land & Water L. Rev. 321 (1967).

§ 41-3-602. Commissioners; appointment; term; removal; filling of vacancies; hydrographers.

1. The governor shall appoint a water commissioner for each water district, if needed, who shall be selected from persons recommended by the superintendent of the water division in which the water district is situated with the advice of the board of county commissioners of the county or counties, lying wholly or partly within the water district. The water commissioner shall be an employee of the state engineer. Each commissioner shall hold his office until his successor is appointed and shall have qualified, and the governor shall, by like selection and appointment, fill all vacancies which shall occur in the office of water commissioners, and may, at any time, remove any water commissioner as provided in W.S. 9-1-202 .
2. The governor may appoint a water commissioner to more than one (1) district on recommendation of the division superintendent and the county commissioners of the interested county or counties.
3. Also, where the legislature has appropriated state funds for payment of full time water commissioners, the governor may appoint water commissioners to be known as hydrographer water commissioners for one (1) or more water districts on recommendation of the state engineer and the superintendent of the water division in which any such district is located. The governor may remove any commissioner appointed under this subsection as provided in W.S. 9-1-202 .

History. Laws 1890-91, ch. 8, § 41; R.S. 1899, § 889; Laws 1907, ch. 86, § 6; C.S. 1910, § 800; C.S. 1920, § 921; R.S. 1931, § 122-302; Laws 1933, Sp. Sess., ch. 26, § 2; C.S. 1945, § 71-302; Laws 1957, ch. 79, § 1; W.S. 1957, § 41-62; Laws 1987, ch. 175, § 1; 1991, ch. 157, § 1.

Cited in

Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911).

§ 41-3-603. Commissioners; general powers and duties; appeals from decisions.

1. The water commissioner shall, as near as may be practicable, divide, regulate and control the use of the water of all streams, springs, lakes or other sources of water within his district as will prevent the waste of water or its use in excess of the volume to which the appropriator is lawfully entitled. The water commissioner has the authority to require the filling of any reservoir whenever practical and whenever water is available for storage from the stream from which the appropriation is established.
2. Any person who may be injured by the action or inaction of the water commissioner has the right to appeal to the division superintendent and, from his decision, the person aggrieved may appeal to the state engineer. From the decision of the state engineer, an appeal may be taken to the district court of the county where the ditch or ditches, reservoir, well or wells over which the controversy arises are situated.

History. Laws 1886, ch. 61, § 29; R.S. 1887, § 1359; R.S. 1899, § 891; Laws 1901, ch. 102, § 1; C.S. 1910, § 802; C.S. 1920, § 923; Laws 1925, ch. 84, § 1; R.S. 1931, § 122-304; C.S. 1945, § 71-306; W.S. 1957, § 41-63; Laws 1971, ch. 27, § 16; 1979, ch. 88, § 1.

Cross references. —

As to judicial review of administrative action, see Rule 12, W.R.A.P.

Commissioners cannot exercise police power vested in them beyond state lines. Mitchell Irrigation Dist. v. Whiting, 59 Wyo. 52, 136 P.2d 502, 1943 Wyo. LEXIS 5 (Wyo. 1943), cert. denied, 322 U.S. 727, 64 S. Ct. 944, 88 L. Ed. 1563, 1944 U.S. LEXIS 821 (U.S. 1944).

Presumptions by appropriator. —

Appropriator may presume not only that appropriators above him are taking only amount of water to which they are entitled, but also that officials who regulate and distribute waters of the state are doing their duty. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

“Volume” of water. —

“The volume (of water) to which an appropriator is lawfully entitled” is at any time the quantity within the limits of his appropriation, which an appropriator then can and does apply to the uses stated in his certificate. Parshall v. Cowper, 22 Wyo. 385, 143 P. 302, 1914 Wyo. LEXIS 22 (Wyo. 1914).

Indispensable parties. —

In mandatory injunction action to compel commissioner to prevent diversion of water from river by junior appropriators, it was imperative that latter be given their day in court before water should be shut off from their ditches. Mitchell Irrigation Dist. v. Whiting, 59 Wyo. 52, 136 P.2d 502, 1943 Wyo. LEXIS 5 (Wyo. 1943), cert. denied, 322 U.S. 727, 64 S. Ct. 944, 88 L. Ed. 1563, 1944 U.S. LEXIS 821 (U.S. 1944).

Mandamus does not lie where section provides appeal. —

Issues involved could not be disposed of in mandamus proceedings, but by appeal under this section or by an appropriate legal or equitable action. Le Beau v. State, 377 P.2d 302, 1963 Wyo. LEXIS 67 (Wyo. 1963).

Mandatory injunction. —

Substantial evidence supported judgment declining mandatory injunction sought by Nebraska irrigation district which had headgate and diversion works in Wyoming, where injunction would have compelled commissioners to prevent water diversion by junior appropriators though ample water passed headgate and injunction would not benefit Nebraska district. Mitchell Irrigation Dist. v. Whiting, 59 Wyo. 52, 136 P.2d 502, 1943 Wyo. LEXIS 5 (Wyo. 1943), cert. denied, 322 U.S. 727, 64 S. Ct. 944, 88 L. Ed. 1563, 1944 U.S. LEXIS 821 (U.S. 1944).

Unsigned “memo” contemplating arrangement whereby if plaintiff irrigation district was successful in closing Wyoming canals, another district having prior rights would permit plaintiff additional water, was insufficient to establish plaintiff would benefit by injunction, memo being without consideration and subject to termination upon 24 hours notice to Nebraska officials. Mitchell Irrigation Dist. v. Whiting, 59 Wyo. 52, 136 P.2d 502, 1943 Wyo. LEXIS 5 (Wyo. 1943), cert. denied, 322 U.S. 727, 64 S. Ct. 944, 88 L. Ed. 1563, 1944 U.S. LEXIS 821 (U.S. 1944).

Cited in

Ryan v. Tutty, 13 Wyo. 122, 78 P. 661, 1904 Wyo. LEXIS 30 (1904); Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911); Bales v. Ankney, 382 P.2d 386, 1963 Wyo. LEXIS 92 (Wyo. 1963); In re The General Adjudication of All Rights to Use Water in the Big Horn River System and All Other Sources, State of Wyoming, 835 P.2d 273, 1992 Wyo. LEXIS 71 (Wyo. 1992).

Law reviews. —

For case note on Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 487 P.2d 324, 1971 Wyo. LEXIS 230 (Wyo. 1971), see VII Land & Water L. Rev. 599 (1972).

§ 41-3-604. Commissioners; additional powers and duties; defense by county attorney.

It shall be the duty of the said water commissioner to divide the water of the natural stream or streams of his district among the several ditches and reservoirs taking water therefrom, according to the prior right of each, respectively, in whole or in part, and to shut and fasten, or cause to be shut and fastened, the headgates of ditches and shall regulate or cause to be regulated the controlling works of reservoirs, in times of scarcity of water, as may be necessary by reason of the priorities of right existing from said streams of his district. Such water commissioner shall have authority to regulate the distribution of water among the various users under any partnership or incorporated ditch or any ditch owned by joint owners not incorporated and not in a partnership, or partnership or incorporated reservoir or reservoir owned by joint owners not incorporated or not included in a partnership, where rights have been adjudicated, in accordance with existing decrees. Whenever, in the pursuance of his duties, the water commissioner regulates a headgate to a ditch or the controlling works of reservoirs, it shall be his duty to attach to such headgate or controlling works a written notice, properly dated and signed, setting forth the fact that such headgate or controlling works has been properly regulated and is wholly under his control and such notice shall be a legal notice to all parties interested in the division and distribution of the water of such ditch or reservoir. It shall be the duty of the county attorney to appear and defend the division superintendent or any water commissioner who shall be made a defendant in any case which may arise in the pursuance of the official duties of any such officer within the county of such county attorney.

History. Laws 1890-91, ch. 8, § 42; R.S. 1899, § 890; Laws 1907, ch. 86, § 7; C.S. 1910, § 801; C.S. 1920, § 922; Laws 1931, ch. 109, § 1; R.S. 1931, § 122-303; C.S. 1945, § 71-303; W.S. 1957, § 41-64; Laws 1965, ch. 168, § 1; 1981, Sp. Sess., ch. 22, § 1.

Administrative officers. —

In distributing water by the commissioners they act as administrative officers only, under the police power of the state. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Commissioners are not vested with arbitrary control; instead they are required to see that water is divided among the several appropriators in strict accordance with adjudicated or determined rights. Mitchell Irr. Dist. v. Sharp, 121 F.2d 964, 1941 U.S. App. LEXIS 3370 (10th Cir. Wyo.), cert. denied, 314 U.S. 667, 62 S. Ct. 129, 86 L. Ed. 534, 1941 U.S. LEXIS 241 (U.S. 1941).

Division superintendent and water commissioners are charged exclusively with administrative duties in superintending diversion and distribution of water in strict conformity with adjudicated or determined priorities. Mitchell Irr. Dist. v. Sharp, 121 F.2d 964, 1941 U.S. App. LEXIS 3370 (10th Cir. Wyo.), cert. denied, 314 U.S. 667, 62 S. Ct. 129, 86 L. Ed. 534, 1941 U.S. LEXIS 241 (U.S. 1941).

Authority to divide. —

Where the board adjudicated priorities on a stream and the tributary in separate proceedings, though appropriators on one stream were not parties to the action respecting the other, adjudications were sufficient to give power to the commissioner to divide the water between the streams, though the proceedings were not binding on those not parties. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Power of courts not superseded. —

The board is primarily an administrative body, and its implied power to adjudicate water right priorities is not exclusive; the power of the courts has not been superseded, and an action to determine priorities may be brought in the courts. Simmons v. Ramsbottom, 51 Wyo. 419, 68 P.2d 153, 1937 Wyo. LEXIS 29 (Wyo. 1937).

Notice mentioned herein was not objectionable as taking of property without due process of law in that no hearing of the owner is provided for. Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (Wyo. 1911).

Presumption that commissioners act legally. —

It will be generally presumed that the acts of the water commissioners in distributing water are legal. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Appropriator may presume not only that appropriators above him are taking only amount of water to which they are entitled, but also that officials who regulate and distribute waters of the state are doing their duty. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Illegal closing of headgates. —

In an action by plaintiff, claiming priority rights, to recover damages and enjoin water commissioner and state engineer for closing headgates of plaintiff's irrigation ditch, the presumption in favor of legality of acts of defendants was overcome where pleadings showed that the defendants closed the headgates to enforce rights of persons claiming junior priorities. Under the pleadings such acts were illegal and in violation of this section. Merrill v. Bishop, 69 Wyo. 45, 237 P.2d 186, 1951 Wyo. LEXIS 3 (Wyo. 1951).

Proper parties in action for damages for closing headgates. —

Plaintiff, a senior appropriator of waters as successor in interest of Indian allottees and patentees, filed an action for damages and an injunction against water commissioner and state engineer for closing of the headgates to his irrigation district. It was held that he was not required to join junior appropriators as parties to the action, but that other parties, allottees and patentees or their successors in interest who had an equal right to the waters should be made parties to the action. Merrill v. Bishop, 69 Wyo. 45, 237 P.2d 186, 1951 Wyo. LEXIS 3 (Wyo. 1951).

Stated in

Le Beau v. State, 377 P.2d 302, 1963 Wyo. LEXIS 67 (Wyo. 1963).

Cited in

Willey v. Decker, 11 Wyo. 496, 73 P. 210, 1903 Wyo. LEXIS 22 (1903); Ryan v. Tutty, 13 Wyo. 122, 78 P. 661, 1904 Wyo. LEXIS 30 (1904); Van Buskirk v. Red Buttes Land & Livestock Co., 24 Wyo. 183, 156 P. 1122, 1916 Wyo. LEXIS 18 (1916).

Law reviews. —

For article, “Wyoming's Groundwater Laws: Quantity and Quality Regulation,” see XXIV Land & Water L. Rev. 39 (1989).

§ 41-3-605. Commissioners; power to arrest; procedure following arrests.

The water commissioners or their assistants, within their districts shall have power to arrest any person or persons offending, and turn them over to the sheriff of the proper county, and immediately upon delivering the person so arrested into the custody of the sheriff, it shall be the duty of the water commissioner making the arrest, to immediately in writing and upon oath, make complaint before the court of proper jurisdiction against the person arrested.

History. Laws 1890-91, ch. 8, § 42; R.S. 1899, § 972; C.S. 1910, § 818; C.S. 1920, § 939; R.S. 1931, § 122-1206; C.S. 1945, § 71-305; W.S. 1957, § 41-65; Laws 2004, ch. 42, § 1.

The 2004 amendment substituted “court of proper jurisdiction” for “proper justice of the peace,” and made stylistic changes.

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

§ 41-3-606. Commissioners; performance of duties; requests for regulation.

Each water commissioner shall perform his duties under the general direction and supervision of the superintendent of his water division. Any holder of a Wyoming water right may request that the source of supply for his water rights be regulated by a water commissioner as authorized by law and in accordance with established priorities. Requests for regulation shall be in writing submitted to a water commissioner or water superintendent.

History. Laws 1890-91, ch. 8, § 45; R.S. 1899, § 894; Laws 1901 ch. 102, § 2; 1907, ch. 86, § 10; C.S. 1910, § 805; C.S. 1920, § 926; R.S. 1931, § 122-307; C.S. 1945, § 71-309; W.S. 1957, § 41-66; Laws 1991, ch. 157, § 1.

Superintendent may, under any condition, call upon commissioner for work within district whenever the necessity therefor may in his judgment arise. Van Buskirk v. Red Buttes Land & Livestock Co., 24 Wyo. 183, 156 P. 1122, 1916 Wyo. LEXIS 18 (1916).

Cited in

Ryan v. Tutty, 13 Wyo. 122, 78 P. 661, 1904 Wyo. LEXIS 30 (1904); Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911).

§ 41-3-607. Commissioners; salaries and expenses.

Water commissioners shall be paid a salary recommended by the state engineer and the division superintendent and approved by the governor. Water commissioners shall be paid by the state according to the procedures established by the human resources division of the department of administration and information. Funding for water commissioner salaries and expenses shall be provided by the state.

History. Laws 1890-91, ch. 8 § 43; R.S. 1899, § 892; Laws 1907, ch. 86, § 8; C.S. 1910, § 803; Laws 1917, ch. 60, § 1; C.S. 1920, § 924; R.S. 1931, § 122-305; Laws 1933, Sp. Sess, ch. 20, § 1; C.S. 1945, § 71-307; Laws 1946, Sp. Sess., ch. 7, § 1; 1953, ch. 33, § 1; 1957, ch. 32, § 1; W.S. 1957, § 41-67; Laws 1973, ch. 130, § 1; 1991, ch. 157, § 1; 1997, ch. 178, § 1.

Cited in

Van Buskirk v. Red Buttes Land & Livestock Co., 24 Wyo. 183, 156 P. 1122, 1916 Wyo. LEXIS 18 (1916).

§ 41-3-608. Commissioners; reports.

1. All water commissioners, when on duty, shall make reports whenever called upon to do so, by the division superintendent of their division. Said reports shall contain the following information:
   1. The amount of water actually coming into the district to supply ditches, canals and reservoirs;
   2. Whether such supply is on the increase or decrease;
   3. What ditches, canals and reservoirs are at that time without their proper supply; and
   4. Such other and further information as the division superintendent of that division may require.

History. Laws 1890-91, ch. 8, § 17; R.S. 1899, § 853; Laws 1907, ch. 86, § 4; C.S. 1910, § 758; C.S. 1920, § 879; R.S. 1931, § 122-206; C.S. 1945, § 71-106; W.S. 1957, § 41-68.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-3-609. Commissioners; disqualification for personal interest or prejudice.

Whenever an affidavit is filed with the state engineer by a water user stating that the water commissioner of a district has a personal interest or prejudice in the use of water from a stream and that the person making the affidavit believes that because of the commissioner’s interest or prejudice he cannot obtain a fair and just division of water, the state engineer may designate a water commissioner from another district as substitute commissioner.

History. Laws 1961, ch. 142, § 1; W.S. 1957, § 41-68.1.

Presumptions by appropriator. —

Appropriator may presume not only that appropriators above him are taking only amount of water to which they are entitled, but also that officials who regulate and distribute waters of the state are doing their duty. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

§ 41-3-610. Commissioners; authority and duties of substitute.

The substitute commissioner shall thereby be invested with the authority and duties possessed by the disqualified commissioner as to the portion of the stream in which the conflict of interest or prejudice is involved, subject to the same rights of appeal as are provided in other cases.

History. Laws 1961, ch. 142, § 2; W.S. 1957, § 41-68.2.

§ 41-3-611. Commissioners; assistants.

Subject to legislative appropriation, a division superintendent may, in cases of emergency, employ suitable assistants to aid a water commissioner in the discharge of his duties. Assistants shall take the same oath as the water commissioner, shall obey his instructions, and each shall be compensated in an amount approved by the superintendent. The term of service of assistant commissioners may be terminated at any time by the water commissioner or the division superintendent, and shall in no event continue after the emergency has ceased to exist.

History. Laws 1890-91, ch. 8, § 44; R.S.1899, § 893; Laws 1903, ch. 28, § 1; 1907, ch. 86, § 9; C.S. 1910, § 804; C.S. 1920, § 925; R.S. 1931, § 122-306; C.S. 1945, § 71-308; Laws 1946, Sp. Sess., ch. 7, § 2; 1953, ch. 32, § 2; 1957, ch. 32, § 2; W.S. 1957, § 41-69; Laws 1973, ch. 130, § 1; 1991, ch. 157, § 1.

Cited in

Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911).

§ 41-3-612. Rotation among water users; approval of commissioner.

1. To bring about a more economical use of the available water supply, it is lawful for water users owning lands to which are attached water rights, to rotate in the use of supply to which they may be collectively entitled, or a single water user, having lands to which water rights of a different priority attach, may in like manner rotate in use, provided that all water rights subject to rotation are in priority. Rotation of water will be allowed only if it can be accomplished without injury to other appropriators.
2. Prior to the commencement of any rotation in the use of water pursuant to this section, the owner or owners of the water rights to be rotated shall file a notice of intention to rotate with the appropriate water commissioner, on the form provided for that purpose by the commissioner, and shall obtain the water commissioner’s written approval which shall be endorsed on the form.
3. Performance of the rotation shall be enforced by the water commissioner in accordance with the terms and conditions included in the form signed and approved by the water commissioner. The state engineer may adopt such rules and regulations as are necessary for him to efficiently administer this section.

History. Laws 1909, ch. 108, § 1; C.S. 1910, § 806; C.S. 1920, § 927; Laws 1921, ch. 24, § 1; R.S. 1931, § 122-308; C.S. 1945, § 71-310; Laws 1957, ch. 208, § 1; W.S. 1957, § 41-70; Laws 1973, ch. 132, § 1.

§ 41-3-613. Headgates, flumes or measuring devices; owners to construct and maintain; failure to comply.

The owner or owners of any ditch or canal shall maintain, to the satisfaction of the division superintendent of the division in which the irrigation works are located, a substantial headgate at the point where the water is diverted, which shall be of such construction that it can be locked and kept closed by the water commissioner; and such owners shall construct and maintain, when required by the division superintendent, flumes or other measuring devices at such points along such ditch as may be necessary for the purpose of assisting the water commissioner in determining the amount of water that is to be diverted into said ditch from the stream, or taken from it by the various users. Any and every owner or manager of a reservoir, located across or upon the bed of a natural stream, shall be required to construct and maintain, when required by the division superintendent, a flume or measuring device of a plan to be approved by the state engineer, below such reservoir at a point not to exceed six hundred (600) feet distant therefrom, and a flume or measuring device above such reservoir or each and every stream or source of supply discharging into such reservoir, for the purpose of assisting the water commissioner or superintendent in determining the amount of water to which prior appropriators are entitled and thereafter diverting it for such prior appropriators’ use. When it may be necessary, for the protection of other water users, the division superintendent has authority to require flumes to be installed along the line of any ditch. If any such owner or owners of irrigation works shall refuse or neglect to construct and put in such headgates, flumes or measuring devices after ten (10) days notice to do so by division superintendent, it shall be the duty of the water commissioner of the district in which such headgate is located, on order of the division superintendent, to close such ditch to the passage of water, and the same shall not be opened or any water diverted from the source of supply, under the penalties prescribed by W.S. 41-3-614 , until the requirements of the division superintendent as to such headgate, flumes or measuring device have been complied with, and if any owner, or manager of a reservoir located across the bed of a natural stream shall neglect or refuse to put in such measuring device after ten (10) days notice to do so by the division superintendent, the water commissioner shall open the sluice gate or outlet of such reservoir and the same shall not be closed under penalties pursuant to W.S. 41-3-614 , until the requirements of the division superintendent as to such measuring devices are complied with.

History. Laws 1890-91, ch. 8, § 46; R.S. 1899, § 930; Laws 1901, ch. 92, § 1; 1907, ch. 86, § 15; C.S. 1910, § 740; C.S. 1920, § 851; R.S. 1931; § 122-420; C.S. 1945, § 71-311; W.S. 1957, § 41-71; Laws 2005, ch. 82, § 2.

The 2005 amendment, effective July 1, 2005, in the last sentence substituted provisions that penalties would be imposed pursuant to § 41-3-614 rather than penalties would be imposed as prescribed by law for the opening of headgates lawfully closed or penalties would be imposed as prescribed by law for changing or interfering with headgates.

Abandonment. —

Where ditches of water appropriator had for many years been abandoned and useless, and subsequently he applied for and acquired new permits, evidence sustained findings of nonuse for more than statutory period, together with an intention to abandon appropriation rights. Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (Wyo. 1925).

Headgates. —

This section only requires a headgate where water is diverted from the stream and does not require individual users of an irrigation project to install and maintain headgates when an allocation of water is made to the irrigation project as a whole. Dechert v. Christopulos, 604 P.2d 1039, 1980 Wyo. LEXIS 223 (Wyo. 1980).

Decision of the State Engineer that a power company's headgate satisfied the requirements of Wyo. Stat. Ann. § 41-3-613 was not contrary to law; while Wyo. Stat. Ann. § 41-3-613 might allow the State Engineer to require the power company to install a headgate at or near the site of its diversion dam, the statute did not mandate that the State Engineer do so. Because of the undisputed facts of the case, in particular the historical use of the dual diversion and the location of a suitable headgate at the adjudicated point of diversion, the State Engineer found the system to be maintained to his satisfaction, which was all that the statute required. Wilson v. Tyrrell, 2011 WY 7, 246 P.3d 265, 2011 Wyo. LEXIS 8 (Wyo. 2011).

Applied in

Laramie Rivers Co. v. Pioneer Canal Co., 565 P.2d 1241, 1977 Wyo. LEXIS 266 (Wyo. 1977).

Cited in

Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911).

§ 41-3-614. Well, headgate or waterbox; prohibited acts; penalty for violation.

It shall be unlawful for any person to willfully use or possess water which has been lawfully denied by the water commissioner or other competent authority or to open, close, change or interfere with any well, pump, reservoir outlet valve, dam, diversion, headgate or waterbox without authority. Any violation of this section shall be punishable pursuant to W.S. 41-3-616 .

History. Laws 1890-91, ch. 8, § 42; R.S. 1899, § 971; Laws 1901, ch. 86, § 1; C.S. 1910, § 817; C.S. 1920, § 938; R.S. 1931, § 122-1205; C.S. 1945, § 71-304; W.S. 1957, § 41-72; Laws 1979, ch. 88, § 1; Laws 2005, ch. 82, § 2.

The 2005 amendment, effective July 1, 2005, rewrote the section, which formerly imposed a fine of up to $500 for willful opening, closing, changing, interfering, or using water lawfully denied, and which provided that possession or use of water lawfully denied was prima facie evidence of guilt.

Law reviews. —

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

For article, “Wyoming's Groundwater Laws: Quantity and Quality Regulation,” see XXIV Land & Water L. Rev. 39 (1989).

§ 41-3-615. Approval of diversion dam plans.

Plans for any diversion dam across the channel of a running stream, above five (5) feet in height, or of any other diversion dam intended to retain water above ten (10) feet in height, shall be submitted to the state engineer for his approval, and it shall be unlawful to construct such diversion dam until the said plans have been approved.

History. Laws 1890-91, ch. 8, § 48; 1895, ch. 45, § 3; R.S. 1899, § 931; C.S. 1910, § 825; C.S. 1920, § 947; R.S. 1931, § 122-1401; Laws 1939, ch. 68, § 2; 1943, ch. 24, § 1; C.S. 1945, § 71-312; W.S. 1957, § 41-73; Laws 2005, ch. 15, § 2.

Cross references. —

As to application for permit to construct reservoir, see § 41-3-302 .

The 2005 amendment, effective July 1, 2005, deleted “Duplicate” from the beginning of the section.

Section does not relate to question of compensation for taking of water rights. Thayer v. Rawlins, 594 P.2d 951, 1979 Wyo. LEXIS 407 (Wyo. 1979).

Duty of state engineer. —

While this section requires the submission of plans on the part of applicants, it is no less the duty of the state engineer to exact them and he has the burden to enforce the administrative features of the law. The presumption is that he has performed his duties. Laramie Rivers Co. v. Levasseur, 65 Wyo. 414, 202 P.2d 680, 1949 Wyo. LEXIS 28 (Wyo. 1949).

Date of application. —

Where application for a reservoir permit was returned by the engineer for additional information, and amended application was filed containing the information, date of filing was to be considered as date of the first application. Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (Wyo. 1912).

Deviation from plans creates nuisance. —

Under this section, dam built, deviating from plans approved by state engineer, so that water was set back upon a nearby railroad, seriously endangering its operation in times of freshet, was a public nuisance, open to abatement on suit of the state. Big Horn Power Co. v. State, 23 Wyo. 271, 148 P. 1110, 1915 Wyo. LEXIS 25 (Wyo. 1915).

Dam more than 10-feet high may be abated as nuisance even though it is not in natural stream, but only as to the excess and reasonably without infliction of unnecessary injury. State v. Hiber, 48 Wyo. 172, 44 P.2d 1005, 1935 Wyo. LEXIS 32 (Wyo. 1935).

Railroad could complain of dam completed before railroad. —

Railroad company holding order of state engineer limiting height of power dam could complain of superstructure, notwithstanding dam and its superstructure were completed before construction of the railroad. Clarke v. Boysen, 39 F.2d 800, 1930 U.S. App. LEXIS 4152 (10th Cir. Wyo.), cert. denied, 282 U.S. 869, 51 S. Ct. 75, 75 L. Ed. 768 (U.S. 1930).

Change of diversion point. —

City did not lose its adjudicated rights of priority by changing its point of diversion, and an adjudication by board of control of subsequent rights of diversion at the new point did not constitute a new appropriation, and the change of the point of diversion was not a nonuse so as to operate as a forfeiture. Van Tassel Real Estate & Livestock Co. v. Cheyenne, 49 Wyo. 333, 54 P.2d 906, 1936 Wyo. LEXIS 49 (Wyo.), cert. denied, 299 U.S. 574, 57 S. Ct. 38, 81 L. Ed. 423, 1936 U.S. LEXIS 282 (U.S. 1936).

Law reviews. —

For article, “Riparian Rights in Appropriation States,” see 4 Wyo. L.J. 130.

For case note, “Importation Doctrine Applied to Water Transfers Within a River System: A Step Too Far,” see XV Land & Water L. Rev. 99 (1980).

§ 41-3-616. Penalties for violation of water laws.

1. Unless otherwise provided, any person violating any of the provisions of W.S. 41-3-112 , 41-3-208 , 41-3-301 , 41-3-614 , 41-3-914 , 41-3-919 , 41-3-938 , 41-4-501 , 41-4-504 , 41-5-107 , 41-5-108 or 41-5-110 after receipt of a written notice of violation from the state engineer’s office or the board of control is guilty of a misdemeanor punishable by a fine not to exceed one thousand two hundred fifty dollars ($1,250.00). Each day of noncompliance with the provisions of these sections after receipt of a written notice of violation from the state engineer’s office or the board of control shall be deemed a separate violation. The possession, use or presence upon any person’s land of water lawfully denied by the water commissioner or other competent authority is prima facie evidence of guilt.
2. Failure to comply with a written order issued by the state engineer pursuant to W.S. 41-3-112 , 41-3-208 , 41-3-301 , 41-3-318 , 41-3-614 , 41-3-914 , 41-3-919 , 41-3-938 , 41-4-501 , 41-5-107 , 41-5-108 or 41-5-110 , shall be a misdemeanor punishable by a fine not to exceed one thousand two hundred fifty dollars ($1,250.00), or imprisonment for not more than three (3) months, or both. Each day of noncompliance with the order shall be deemed a separate violation.
3. Whenever, after notice and an opportunity to be heard, the state engineer finds the holder of any permit is willfully violating or has willfully violated any provision of a permit or any provision of W.S. 41-3-112 , 41-3-208 , 41-3-301 , 41-3-318 , 41-3-614 , 41-3-914 , 41-3-919 , 41-3-937 , 41-3-938 , 41-4-501 , 41-5-107 , 41-5-108 or 41-5-110 , or of any order issued pursuant thereto, the state engineer may cancel or suspend the permit or impose conditions on the future use thereof to prevent further violation. An appeal from any decision of the state engineer may be made to the board of control.
4. Whenever, after notice and opportunity to be heard, the board of control finds the holder of any certificate of registration or certificate of appropriation is willfully violating or has willfully violated any provision of the certificate or any provisions of W.S. 41-3-112 , 41-3-208 , 41-3-301 , 41-3-614 , 41-3-914 , 41-3-919 , 41-3-937 , 41-3-938 , 41-4-501 , 41-5-107 , 41-5-108 or 41-5-110 , or of any order issued pursuant thereto, the board of control may cancel or suspend the certificate or impose conditions on the future use thereof to prevent further violation. An appeal from any decision of the board of control may be taken to the district court.

History. Laws 2005, ch. 82, § 1.

Effective dates. —

Laws 2005, ch. 82, § 3, makes the act effective July 1, 2005.

§ 41-3-701. Purpose.

1. It is hereby declared that to provide for the conservation of the water resources of the state of Wyoming and for the greatest beneficial use of water within this state, the organization of water conservancy districts and the construction of works as herein defined by such districts are a public use and will:
   1. Be essentially for the public benefit and advantage of the people of the state of Wyoming;
   2. Indirectly benefit all industries of the state;
   3. Indirectly benefit the state of Wyoming in the increase of its taxable property valuation;
   4. Directly benefit municipalities by providing adequate supplies of water for domestic use;
   5. Directly benefit lands to be irrigated or drained from works to be constructed;
   6. Directly benefit lands now under irrigation by stabilizing the flow of water in streams and by increasing flow and return flow of water to such streams;
   7. Promote the comfort, safety and welfare of the people of the state of Wyoming, and it is therefore declared to be the policy of the state of Wyoming:
      1. To control, make use of and apply to beneficial use all unappropriated waters in this state to a direct and supplemental use of such waters for domestic, transportation, industrial, manufacturing, irrigation, power, recreation and other beneficial uses;
      2. To obtain from water in Wyoming the highest duty for domestic uses and irrigation of lands in Wyoming within the terms of interstate compacts;
      3. To cooperate with the United States under the federal reclamation laws or other federal laws now existing, or hereafter enacted, and agencies of the state of Wyoming for the construction and financing of works in the state of Wyoming as herein defined and for the operation and maintenance thereof;
      4. To promote the greater prosperity and general welfare of the people of the state of Wyoming by encouraging the organization of water conservancy districts as provided in this act [§§ 41-3-701 through 41-3-779 ].

History. Laws 1957, ch. 101, § 1; W.S. 1957, § 41-77.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

“Supplemental” is defined generally as “servicing, to supply what is lacking; that which is added to a thing to complete it; that which supplies the deficiency or meets a want.” In re Bridger Valley Water Conservancy Dist., 401 P.2d 289, 1965 Wyo. LEXIS 136 (Wyo. 1965).

The bringing of water from an outside source is not a necessary requisite to its being supplemental. It could well be that which is conserved by the proper handling of that which has always been there but has been improvidently utilized. In re Bridger Valley Water Conservancy Dist., 401 P.2d 289, 1965 Wyo. LEXIS 136 (Wyo. 1965).

Contract relating to disposition of excess lands. —

The provisions of a contract between a water conservancy district and the United States, relating to the disposition of excess lands, were not ultra vires, but on the contrary were within the purposes of this section. In re Bridger Valley Water Conservancy Dist., 401 P.2d 289, 1965 Wyo. LEXIS 136 (Wyo. 1965).

Law reviews. —

For comment, “Water Appropriation for Recreation,” see I Land & Water L. Rev. 209 (1966).

For article, “Transfer of Water Rights — Errata and Addenda — Sales for Recreational Purposes and to Districts,” see II Land & Water L. Rev. 321 (1967).

Library references. —

17 Nat. Resources & Env't Law Review 73.

§ 41-3-702. Short title; definitions.

1. This act [§§ 41-3-701 through 41-3-779 ] may be known and cited as “Water Conservancy Act”; the districts created hereunder may be termed “water conservancy districts”; and the bonds which may be issued hereunder may be called “water conservancy bonds”, and such designation may be engraved or printed on their face. Wherever the term “publication” is used in this act and no manner specified therefor, it shall be taken to mean once a week for three (3) consecutive weeks in at least one (1) newspaper of general circulation in each county wherein such publication is to be made. It shall not be necessary that publication be made on the same day of the week in each of the three (3) weeks, but not less than fourteen (14) days (excluding the day of the first publication), shall intervene between the first publication and the last publication, and the publication shall be complete on the date of the last publication.
2. Whenever the term “person” is used in this act, and not otherwise specified, it shall be taken to mean a person, firm, co-partnership, association or corporation, other than a county, town, city, city and county, or other political subdivision. Similarly, the words “public corporation” shall be taken to mean counties, city and counties, towns, cities, school districts, irrigation districts, water districts, part districts, subdistricts, and all governmental agencies, clothed with the power of levying or providing for the levy of general or special taxes or special assessments.
3. Whenever the word “board” is used in this act and not otherwise specified, it shall be taken to mean the board of directors of the district.
4. Whenever the term “works” is used in this act, it shall unless otherwise specified, be held to mean dams, storage reservoirs, compensatory and replacement reservoirs, canals, conduits, pipelines, drains, tunnels, power plants and any and all works, facilities, improvements and property necessary or convenient for the supplying of water for domestic, transportation, industrial, manufacturing, irrigation, power, recreation and other beneficial uses.
5. Whenever the term “court” is used in this act, and not otherwise specified, it shall be taken to mean the district court of that judicial district of the state of Wyoming wherein the petition for the organization of a water conservancy district shall be filed.
6. Whenever the term “property” is used in this act, it shall unless otherwise specified, be held to mean real estate and personal property.
7. Whenever the term “land” or “real estate” is used in this act, it shall unless otherwise specified, be held to mean real estate as the words “real estate” are defined by the laws of the state of Wyoming, and shall embrace all railroads, tramroads, highways, electrical roads, street and interurban railroads, roads, streets, and street improvements, telephone, telegraph, and transmission lines, gas, sewer and water systems, water rights, pipelines and rights-of-way of public service corporations, and all other real property whether held for public or private use.
8. Whenever the term “land” or “property” is used in this act with reference to benefit, appraisals, assessments, or taxes, public corporations shall as political entities, according to benefits received, be considered as included in such reference in the same manner as “land” or “property”.

History. Laws 1957, ch. 101, § 2; W.S. 1957, § 41-78.

§ 41-3-703. Effect of improper notice of judicial proceeding.

In any and every case where a notice is provided for in this act [§§ 41-3-701 through 41-3-779 ], if the court finds for any reason that due notice was not given, the court shall not thereby lose jurisdiction, and the proceeding in question shall not thereby be void or be abated, but the court shall in that case order due notice to be given, and shall continue the hearing until such time as notice shall be properly given, and thereupon shall proceed as though notice had been properly given in the first instance.

History. Laws 1957, ch. 101, § 39; W.S. 1957, § 41-79.

§ 41-3-704. Hearings on validity of districts.

All cases in which there may arise a question of the validity of the organization of a water conservancy district, or a question of the validity of any proceeding under this act [§§ 41-3-701 through 41-3-779 ] shall be advanced as a matter of immediate public interest and concern, and heard at the earliest practicable moment. The courts shall be open at all times for the purposes of this act.

History. Laws 1957, ch. 101, § 40; W.S. 1957, § 41-80.

§ 41-3-705. Liberal construction.

This act [§§ 41-3-701 through 41-3-779 ] being necessary to secure and preserve the public health, safety, convenience and welfare, and for the security of public and private property, it shall be liberally construed to effect the purposes of this act.

History. Laws 1957, ch. 101, § 41; W.S. 1957, § 41-81.

Severability. —

Laws 1957, ch. 101, § 42, reads: “Should the courts of the state or of the United States declare any section, provision, paragraph, clause, sentence, phrase, or part thereof, of this act invalid or unconstitutional, or in conflict with any other section, provision, paragraph, clause, sentence, phrase, or part thereof, of this act, then such decision shall affect only the section, provision, paragraph, clause, sentence, phrase, or part thereof, declared to be unconstitutional or unauthorized; and shall not affect any other part whatsoever of this act. The legislature of the state of Wyoming hereby declares that it would have passed this act and each section, provision, paragraph, clause, sentence, or phrase hereof irrespective of the fact that any one or more of the other sections, provisions, paragraphs, clauses, sentences or phrases, or parts thereof, be declared invalid or unconstitutional.”

§ 41-3-720. Power of district court.

The district court sitting in and for any county in this state, or any judge thereof in vacation is hereby vested with jurisdiction, power and authority when the conditions stated in W.S. 41-3-721 are found to exist, to establish water conservancy districts which may be entirely within or partly within and partly without the judicial district in which said court is located, for conserving, developing and stabilizing supplies of water for domestic, transportation, industrial, manufacturing, irrigation, power, recreation, and other beneficial uses as herein provided.

History. Laws 1957, ch. 101, § 3; W.S. 1957, § 41-82.

§ 41-3-721. Petition for creation; conditions affecting inclusion of city or city and county.

1. Before any water conservancy district shall be established under this act [§§ 41-3-701 through 41-3-779 ], a petition shall be filed in the office of the clerk of the court vested with jurisdiction, in a county in which all or part of the lands embraced in such proposed water conservancy district are situated, signed by not fewer than twenty-five percent (25%) of the owners or entrymen on having not less than twenty-five percent (25%) of the irrigated lands or lands susceptible of irrigation under the works proposed for construction, to be included in the district, but not embraced within the incorporated limits of a city or town; and each tract (or tracts), of land shall be listed opposite the name of the signer, each such tract (or tracts), together with the improvements thereon, to have an assessed valuation of not less than one hundred dollars ($100.00); and be also signed by not fewer than five percent (5%) of the owners owning not less than five percent (5%) of nonirrigated land and/or lands embraced in the incorporated limits of a city or town, all situated in the proposed district; and each tract (or tracts) of land shall be listed opposite the name of the signer, each such tract (or tracts), together with improvements thereon, to have an assessed valuation of not less than one hundred dollars ($100.00).
2. In the event a petitioner shall sign such petition both as owner of irrigated or irrigable and nonirrigated land or lands situated within a municipality, his name shall be counted only as an owner of irrigated or irrigable lands. A signing petitioner shall not be permitted, after filing a petition, to withdraw his name therefrom.
3. No city, or city and county, of the first class as now, or hereafter defined, by the laws of the state of Wyoming, shall be included within such district unless by and with the written consent of the chief executive officer of such city, or city and county, with the approval of the legislative body of such municipality, and such consent may specify that the rate of taxation on the assessed valuation of property within said city, or city and county, under W.S. 41-3-771 shall not exceed a maximum rate which may be less than the rates set out in W.S. 41-3-771 , and in such case the district shall not have power to levy assessment on the property in said city, or city and county, at a greater rate than that specified in said consent.
4. The petition shall set forth:
   1. The proposed name of said district;
   2. That property within the proposed district will be benefited by the accomplishment of the purposes enumerated in W.S. 41-3-720 ;
   3. A general description of the purpose of the contemplated improvement, and of the territory to be included in the proposed district. Said description need not be given by metes and bounds or by legal subdivision, but it shall be sufficient to enable a property owner to ascertain whether his property is within the territory proposed to be organized as a district. Said territory need not be contiguous, provided it is so situated that the organization of a single district of the territory described is calculated to promote one (1) or more of the purposes enumerated in W.S. 41-3-720 ;
   4. The assessed value of all irrigated land within the boundaries of the proposed district;
   5. A general designation of divisions of the district and the number of directors of the district proposed for each subdivision;
   6. Said petition shall pray for the organization of the district by the name proposed.
5. No petition with the requisite signatures shall be declared null and void on account of alleged defects, but the court may at any time permit the petition to be amended to conform to the facts by correcting any errors in the description of the territory, or in any other particular. However, similar petitions or duplicate copies of the same petition for the organization of the same district may be filed and shall together be regarded as one (1) petition. All such petitions filed prior to the hearing on the first petition filed, shall be considered by the court the same as though filed with the first petition placed on file.
6. In determining whether the requisite number of landowners have signed the petition, the court shall be governed by the names as they appear upon the assessment records which shall be prima facie evidence of such ownership.

History. Laws 1957, ch. 101, § 4; W.S. 1957, § 41-83.

Law reviews. —

For comment, “Improvement of Existing Water Rights Through Unification — A Case Study on the Consolidation of Appropriations,” see II Land & Water L. Rev. 327 (1967).

§ 41-3-722. Bond for expenses of proceedings.

At the time of filing the petition or at any time subsequent thereto, and prior to the time of hearing on said petition a bond shall be filed, with security approved by the court, sufficient to pay all expenses connected with the proceedings in case the organization of the district be not effected. If at any time during the proceeding the court shall be satisfied that the bond first executed is insufficient in amount, it may require the execution of an additional bond within a time to be fixed to be not less than ten (10) days distant and upon failure of the petitioners to execute the same, the petition shall be dismissed.

History. Laws 1957, ch. 101, § 5; W.S. 1957, § 41-84.

§ 41-3-723. Hearing procedure generally.

1. Immediately after the filing of such petition, the court wherein such petition is filed or a judge thereof in vacation, shall by order fix a place and time, not less than sixty (60) days nor more than ninety (90) days after the petition is filed, for hearing thereon and thereupon the clerk of said court shall cause notice by publication to be made of the pendency of the petition and of the time and place of hearing thereon; the clerk of said court shall also forthwith cause a copy of said notice to be mailed by U.S. registered mail to the board of county commissioners of each of the several counties having territory within the proposed district. At the same time, and in the same manner, the clerk of said court aforesaid shall forward to the state engineer, at his office in the capital, a copy of the notice of hearing, and a certified copy of such petition.
2. The district court in and for the county in which the petition for the organization of a water conservancy district has been filed, shall thereafter for all purposes of this act [§§ 41-3-701 through 41-3-779 ], except as hereinafter otherwise provided, maintain and have original and exclusive jurisdiction, coextensive with the boundaries of said water conservancy district, and of land and other property proposed to be included in said district or affected by said district without regard to the usual limits of its jurisdiction.
3. The state engineer, in his official capacity, upon the filing of the petition for the organization of a water conservancy district, shall become an interested party in all court proceedings thereafter involving the validity, or invalidity, of such petition, and he shall have the right to participate as a party in all such proceedings either in person, by counsel, or both. Not later than ten (10) days prior to the date fixed by the court for the hearing on the pending petition, the state engineer shall file a formal answer in the proceedings, with copies of his answer to the attorneys representing the sponsors of the petition, in which said answer the state engineer shall indicate his approval, or disapproval, of said petition, or any part or parts thereof. If the state engineer disapproves the petition or any part or parts thereof, he shall set forth in detail in his answer his reasons for the disapproval. No replication, or other pleading, by the sponsors of the petition, to the answer of the state engineer, shall be permitted; but such sponsors at the hearing on the petition will be permitted to offer whatever material testimony or evidence they desire to present to the court with respect to the answer of the state engineer. The district judge who has jurisdiction over the proceedings may, in his discretion, request, or subpoena, the state engineer to appear as a witness in support of the answer filed by the state engineer.
4. No judge of such court wherein such petition is filed shall be disqualified to perform any duty imposed by this act by reason of ownership of property within any water conservancy district or proposed water conservancy district, or by reason of ownership of any property that may be benefited, taxed or assessed therein.

History: Laws 1957, ch. 101, § 6; W.S. 1957, § 41-85; 2014 ch. 40, Laws 2014, ch. 40, § 2, effective March 6, 2014; 2014 ch. 40, § 2, effective March 6, 2014.

The 2014 amendment, in (a), substituted “capital” for “capitol building, in Cheyenne, Wyoming” in the second sentence.

Laws 2014, ch. 40, § 10, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved March 6, 2014.

§ 41-3-724. Protesting creation.

1. At any time after the filing of a petition for the organization of a conservancy district, and not less than thirty (30) days prior to the time fixed by the order of court for the hearing upon said petition, and not thereafter, a petition may be filed in the office of the clerk of the court wherein the proceeding for the creation of said district is pending, signed by not fewer than twenty percent (20%) of the owners of or entrymen on the irrigated lands, or lands susceptible of irrigation under the works proposed for construction, to be included in said proposed district, but not embraced within the incorporated limits of a city or town, who have not signed the petition for creating such district, and each tract (or tracts), of land shall be listed opposite the name of the signer, each such tract (or tracts), together with the improvements thereon, to have an assessed valuation of not less than one hundred dollars ($100.00) and also signed by not fewer than five percent (5%) of owners of nonirrigated lands and/or lands embraced in the incorporated limits of a city or town, all situated in the proposed district who have not signed the petition for creating such district, and each tract (or tracts) of land shall be listed opposite the name of the signer, each such tract (or tracts), together with improvements thereon, to have an assessed valuation of not less than one hundred dollars ($100.00), protesting the creating of said district. The signers of said protesting petition shall state therein the land owned by each, and shall also state the value thereof as shown by the last preceding assessment.
2. In the event a petitioner shall sign such petition both as owner of irrigated or irrigable and nonirrigated land or lands situated within a municipality his name shall be counted only as an owner of irrigated or irrigable lands.
3. Upon the filing of such protesting petition, it shall be the duty of the clerk of the court forthwith to make as many certified copies thereof, including the signatures thereto, as there are counties in which any part of said proposed district extends, and forthwith to place in the hands of the county assessor of each of such counties one (1) of said certified copies; and likewise, one (1) of said certified copies shall be forwarded promptly to the state engineer at his office in Cheyenne, Wyoming. Thereupon it shall be the duty of each of such county assessors to determine from the assessment records of his county in his hands, and to certify to the said district court under his official seal, prior to the day fixed for the hearing as aforesaid, the total assessed valuation of the several tracts of land listed in the protest, situated in said proposed district within his county. Upon the day set for the hearing upon the original petition, if it shall appear to the court from such certificate, or certificates, and from such other evidence as may be adduced by any party in interest, that said protesting petition is not signed by the requisite number of owners of lands and of the requisite value as herein set forth, the court shall thereupon dismiss said protesting petition and shall proceed with the original hearing as in this section provided.
4. If the court shall find from the evidence that said protesting petition is signed by the requisite number of owners of lands, and of the requisite values, the court shall forthwith dismiss the original petition praying for the creation of the district. The finding of the court upon the question of such total valuation, the genuineness of the signatures, and all matters of law and fact incident to such determination shall be final and conclusive on all parties in interest whether appearing or not.
5. Any owner, whether individual or corporate, of real property in said proposed district not having individually signed a petition for the organization of a conservancy district, and desiring to object to the organization and incorporation of said district, may, on or before the date set for the cause to be heard, file objection to the organization and incorporation of the district.
6. Such objection shall be limited to a denial of the statements in the petition and shall be heard by the court as an advanced case without unnecessary delay.
7. Upon the said hearing, if it shall appear that a petition for the organization of a water conservancy district has been signed and presented, as hereinabove provided, in conformity with this act [§§ 41-3-701 through 41-3-779 ] and that the allegations of the petition are true, and that no protesting petition has been filed, or if filed has been dismissed as hereinabove provided, and the state engineer has not objected to the petition or any part thereof, or his objections have not been sustained, the court shall, by order duly entered of record, adjudicate all questions of jurisdiction, declare the district organized and give it a corporate name, by which in all proceedings it shall thereafter be known, and thereupon the district shall be a political subdivision of the state of Wyoming and a body corporate with all the powers of a public or municipal corporation.
8. In such decree the court shall designate the place where the office or principal place of business of the district shall be located, which shall be within the corporate limits of the district, and which may be changed by order of court from time to time. The regular meetings of the board shall be held at such office or place of business, but for cause may be adjourned to any convenient place. The official records and files of the district shall be kept at the office so established.
9. If the court finds that no petition has been signed and presented in conformity with this act, or that the material facts are not as set forth in the petition filed, it shall dismiss said proceedings and adjudge the costs against the signers of the petition in such proportion as it shall deem just and equitable. No appeal or writ of error shall lie from an order dismissing the said proceeding; but nothing herein shall be construed to prevent the filing of a subsequent petition or petitions for similar improvements or for a similar water conservancy district, and the right so to renew such proceeding is hereby expressly granted and authorized.
10. If an order be entered establishing the district, such order shall be deemed final and no appeal or writ of error shall lie therefrom, and the entry of such order shall finally and conclusively establish the regular organization of said district against all persons except the state of Wyoming, in an action in the nature of a writ of quo warranto, commenced by the attorney general within three (3) months after said decree declaring such district organized as herein provided, and not otherwise. The organization of said district shall not be directly nor collaterally questioned in any suit, action or proceeding except as herein expressly authorized.

History. Laws 1957, ch. 101, § 7; W.S. 1957, § 41-86.

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

§ 41-3-725. Filing of decree and copies of findings.

Within thirty (30) days after the said district has been declared a corporation by the court, the clerk of the court shall transmit to the secretary of state, to the state engineer, and to the county clerk and recorder in each of the counties having lands in said district, copies of the findings and the decree of the court incorporating said district. The same shall be filed in the office of the secretary of state in the same manner as articles of incorporation are now required to be filed under the general laws concerning corporations, and copies shall also be filed in the office of the county clerk and recorder of each county in which a part of the district may be, where they shall become permanent records; and the clerk and recorder in each county, and the secretary of state, shall receive for filing said copies such fees as now are or hereafter may be provided by law for like services in similar cases.

History. Laws 1957, ch. 101, § 8; W.S. 1957, § 41-87.

Cross references. —

As to fees collected by secretary of state, see § 9-1-305 .

As to filing of articles of incorporation, see § 17-8-103 .

§ 41-3-726. Procedure for organizing subdistricts.

Subdistricts may be organized upon the petition of the owner of real property, within or partly within and partly without the district, which petition shall fulfill the same requirements concerning the subdistricts as the petition outlined in W.S. 41-3-721 is required to fulfill, concerning the organization of the main district and shall be filed with the clerk of the court, and shall be accompanied by a bond as provided for in W.S. 41-3-722 . All proceedings relating to the organization of such subdistricts shall conform in all things to the provision of this act [§§ 41-3-701 through 41-3-779 ] relating to the organization of districts; provided, that not more than a majority of the owners of lands, having one-half or more of the aggregate assessed value of the lands in the proposed subdistrict, shall be required to sign the petition for the creation of a subdistrict, and not more than twenty-five percent (25%) of the owners of lands in the proposed subdistrict shall be required to sign the protesting petition against the creation of such subdistrict. Whenever the court shall by its order duly entered of record, declare the [or] decree such subdistricts to be organized, the clerk of said court shall thereupon give notice of such order to the directors of the district who shall thereupon act also as directors of the subdistrict. Thereafter, the proceedings in reference to the subdistrict shall in all matters conform to the provision of this act except that in the appraisal of benefits for the purpose of such subdistricts, in the issuance of bonds, in levying of assessments and in all other matters affecting only the subdistrict, the provisions of this act shall apply to the subdistrict as though it were an independent district, and it shall not in these things be amalgamated with the main district. The said petition for organization of a subdistrict shall also contain a statement of the amount or quantity of water for which said subdistrict desires to acquire the perpetual use and the amount of money that said subdistrict is willing to pay therefor, and the court shall, prior to the entry of its decree organizing any territory into a subdistrict obtain the verified consent of the board to furnish such perpetual use of water for the purposes therein specified to such subdistrict at a price and upon the terms mentioned in the petition, then the court shall be authorized to enter its decree of organization of such subdistrict.

History. Laws 1957, ch. 101, § 15; W.S. 1957, § 41-88.

§ 41-3-740. Appointment and qualifications; number; term; election of successors; vacancies; bond.

1. Within thirty (30) days after entering the decree incorporating said district, the court shall appoint a board of directors of the district consisting of not less than five (5) or more than nine (9) persons who are residents of the county or counties in which the water conservancy district is situated, all of whom shall be owners of real property in said district. The terms of office of said directors shall be staggered over a five (5) year period, but not more than two (2) of such directors may be appointed for a full five (5) year term.
2. At the expiration of their respective terms of office as fixed by the court, their successors in office shall be elected in the manner provided for the election of irrigation district commissioners in W.S. 41-7-103 , 41-7-104 and 41-7-316 through 41-7-318 , as amended, or as may be amended by the legislature of Wyoming hereafter, except that they shall be elected for a term of five (5) years. The court shall fill all vacancies which may occur at any time on said board, but such court appointees shall only serve until the next succeeding regular election for board members. Each director shall hold office during the term for which he is appointed or elected, and until his successor is duly appointed or elected, and has qualified; and shall furnish a corporate surety bond at the expense of the district; in amount and form fixed and approved by the court, conditioned for the faithful performance of his duties as such director.

History. Laws 1957, ch. 101, § 9; W.S. 1957, § 41-89.

§ 41-3-741. Oath; election of officers; seal; records; compensation and expenses.

1. Each director, before entering upon his official duties, shall take and subscribe to an oath before an officer authorized to administer oaths, that he will support the constitution of the United States and the state of Wyoming and will honestly, faithfully and impartially perform the duties of his office and that he will not be interested directly or indirectly in any contract let by said district, which said oath shall be filed in the office of the clerk of said court in the original case.
2. Upon taking the oath, the board shall choose one (1) of their number chairman of the board and president of the district, and shall elect some suitable person secretary of the board and of the district, who may or may not be a member of the board. Such board shall adopt a seal and shall keep in a well-bound book a record of all of its proceedings, minutes of all meetings, certificates, contracts, bonds given by employees and all corporate acts which shall be open to inspection of all owners of property within the district, as well as to all other interested parties.
3. Each member of the board shall receive as compensation for his service such sum as shall be ordered by the court, not in excess of the sum of six hundred dollars ($600.00) per annum, payable monthly, and necessary traveling expenses actually expended while engaged in the performance of his duties.

History. Laws 1957, ch. 101, § 10; W.S. 1957, § 41-90.

Cross references. —

As to officers authorized to administer oaths, see § 1-2-102 .

§ 41-3-742. Powers generally.

1. The board shall have power on behalf of said districts:
   1. To have perpetual succession;
   2. To take by appropriation, grant, purchase, bequest, devise or lease, and to hold and enjoy water, water works, water rights and sources of water supply; and any and all real and personal property of any kind within or without the district necessary or convenient to the full exercise of its powers; and to sell, lease, encumber, alien or otherwise, dispose of water, water works, water rights and sources of water supply for use within the district, and any and all real and personal property of any kind within or without the district; also to acquire, construct or operate, control and use any and all works, facilities and means necessary or convenient to the exercise of its power, both within and without the district for the purpose of providing for the use of such water within the district and to do and perform any and all things necessary or convenient to the full exercise of the power herein granted. Title to all rights and property acquired by any water conservancy district organized under this act [§§ 41-3-701 through 41-3-779 ] shall immediately and by operation of law vest in such district in its corporate name; such property shall be held for the uses and purposes of the district, and shall be exempt from all state, county, municipal, school, and other taxes imposed by any taxing authority of the state of Wyoming;
   3. To have and to exercise the power of eminent domain and in the manner provided by law for the condemnation of private property for public use to take any property necessary to the exercise of the powers herein granted;
   4. To construct and maintain works and establish and maintain facilities across or along any public street or highway, and in, upon, or over any vacant state lands which lands are now, or may become, the property of the state of Wyoming and to construct works and establish and maintain facilities across any stream of water or water course; providing, however, that the district shall promptly restore any such street or highway to its former state of usefulness as nearly as may be, and shall not use the same in such manner as to completely or unnecessarily impair the usefulness thereof. The grant of the right to use such vacant lands shall be effective upon the filing by such district with the state board of land commissioners of an application showing the boundaries, extent and locations of the lands, rights-of-way, or easements desired for such purposes. If the land, rights-of-way or easements for which application shall be made is for the construction of any aqueduct, ditch, pipeline, conduit, drains, tunnel, or other works for the conveyance of water, or for roads, or for poles or towers, and wires for the conveyance of electrical energy or for telephonic or telegraphic communication no compensation shall be charged the district therefor, unless in the opinion of the state board of land commissioners the construction of such works will render the remainder of the legal subdivision through which such works are to be constructed valueless or unsaleable, in which event the district shall pay for the lands to be taken and for such portion of any legal subdivision which in the opinion of the board is rendered valueless or unsaleable, at the rate of ten dollars ($10.00) per acre. If the lands for which application is made are for the purposes other than the construction of roads or works for the conveyance of water, or electricity or telephonic or telegraphic communication, such district shall pay to the state for such lands at the rate of ten dollars ($10.00) per acre. Upon filing such application, accompanied by map or plat showing the location or proposed location of such works and/or facilities, the fee title to so much of such state lands as shall be necessary or convenient to enable such district efficiently and without interference to construct, maintain and operate its works and to establish, maintain and operate its facilities, shall be conveyed to said district by patent. If an easement for right-of-way only over such lands be sought by the district, such easement or right-of-way shall be evidenced by permit or grant executed by or on behalf of the state board of land commissioners. The state board of land commissioners may reserve easements and/or rights-of-way, in the public, across any lands in such patents, grants or permits described for streets, roads and highways theretofore established according to law. Before any such patent, grant or permit shall be executed, any compensation due to the state under the provisions hereof, must be paid. No fee shall be exacted from the district for any patent, permit or grant so issued or for any service rendered hereunder. In the use of streets, the district shall be subject to the reasonable rules and regulations of the county, city or town where such streets lie, concerning excavation and the refilling of excavation, the relaying of pavements and the protection of the public during periods of construction; provided, that the district shall not be required to pay any license or permit fees, or file any bonds. The district may be required to pay reasonable inspection fees;
   5. To contract with the government of the United States or any agency thereof or with an agency of the state of Wyoming for the construction, preservation, operation and maintenance of water supply works, drains, pipelines, tunnels, reservoirs, regulating basins, diversion canals and works, dams, power plants and all necessary works incidental thereto, including supply canals, farm laterals, and distribution and drainage systems of all kinds, and to acquire perpetual rights to the use of water from such works, to sell and dispose of perpetual rights to the use of water from such works to persons and corporations, public and private;
   6. To list in separate ownership the lands within the district which are susceptible of irrigation from district sources and to make an allotment of water to all such lands, which allotment of water shall not exceed the maximum amount of water that the board determines could be beneficially used on such lands; to levy assessments as hereinafter provided, against the lands within the district to which water is allotted on the basis of the value per acre-foot of water allotted to said lands within the district; provided, that the board may divide the district into units and fix a different value per acre-foot of water in the respective units, with due regard to land classification, and in such case shall assess the lands within each unit upon the same basis of value per acre-foot of water allotted to land within such unit;
   7. To fix rates at which water not allotted to lands as hereinbefore provided shall be sold, leased or otherwise disposed of; provided, however, that rates shall be equitable although not necessarily equal or uniform, for like classes of service throughout the district;
   8. To enter into contracts, employ and retain personal services and employ laborers; to create, establish and maintain such offices and positions as shall be necessary and convenient for the transaction of the business of the district; and to elect, appoint and employ such officers, attorneys, agents and employees therefor as shall be found by the board to be necessary and convenient;
   9. To adopt plans and specifications for the works for which the district was organized, which plans and specifications may at any time be changed or modified by the board. Such plans shall include maps, profiles, and such other data and descriptions as may be necessary to set forth the location and character of the works, and a copy thereof shall be kept in the office of the district and open to public inspection;
   10. To appropriate and otherwise acquire water and water rights within or without the state; to develop, store and transport water; to subscribe for, purchase and acquire stock in canal companies, water companies and water users’ associations; to provide, sell, lease, and deliver water for municipal, domestic, transportation, industrial, manufacturing, irrigation, power, recreation, and any and all other beneficial uses and to derive revenue and benefits therefrom; to fix the terms and rates therefor; and to make and adopt plans for and to acquire, construct, operate and maintain irrigation, and water distribution and drainage systems, dams, reservoirs, canals, conduits, pipelines, tunnels, power plants and any and all works, facilities, improvements and property necessary or convenient therefor, and in the doing of all of said things to obligate itself and execute and perform such obligations according to the tenor thereof; provided, however, the sale, leasing and delivery of water for irrigation, domestic, and transportation purposes as hereinbefore provided shall only be made for use within the district;
   11. 1. To invest any surplus money in the district treasury, including such money as may be in any sinking fund established for the purpose of providing for the payment of the principal or interest of any contract, or bonded, or other indebtedness or for any other purpose, not required for the immediate necessities of the district in its own bonds, or in treasury notes or bonds of the United States, or of this state, and such investment may be made by direct purchase of any issue of such bonds or treasury notes, or part thereof, at the original sale of the same, or by the subsequent purchase of such bonds or treasury notes. Any bonds or treasury notes thus purchased and held may, from time to time be sold and the proceeds reinvested in bonds or treasury notes as above provided. Sales of any bonds or treasury notes thus purchased and held shall, from time to time, be made in season so that the proceeds may be applied to the purposes for which the money with which the bonds or treasury notes were originally purchased were placed in the treasury of the district; (xi) (A) To invest any surplus money in the district treasury, including such money as may be in any sinking fund established for the purpose of providing for the payment of the principal or interest of any contract, or bonded, or other indebtedness or for any other purpose, not required for the immediate necessities of the district in its own bonds, or in treasury notes or bonds of the United States, or of this state, and such investment may be made by direct purchase of any issue of such bonds or treasury notes, or part thereof, at the original sale of the same, or by the subsequent purchase of such bonds or treasury notes. Any bonds or treasury notes thus purchased and held may, from time to time be sold and the proceeds reinvested in bonds or treasury notes as above provided. Sales of any bonds or treasury notes thus purchased and held shall, from time to time, be made in season so that the proceeds may be applied to the purposes for which the money with which the bonds or treasury notes were originally purchased were placed in the treasury of the district;
       2. The functions and duties authorized by subdivision (xi)(A) of this section shall be performed under such rules and regulations as shall be prescribed by the board.
   12. To refund bonded indebtedness incurred by the district under and pursuant to such rules and regulations as shall be prescribed by the board;
   13. To borrow money and incur indebtedness and to issue bonds or other evidence of such indebtedness;
   14. To adopt bylaws not in conflict with the constitution and laws of the state for carrying on the business, objects and affairs of the board and of the district.

History. Laws 1957, ch. 101, § 13; W.S. 1957, § 41-91; Laws 2007, ch. 33, § 1; Laws 2008, ch. 116, § 1.

The 2007 amendment, effective July 1, 2007, in (a)(iv) substituted “state” for “public” or similar language.

The 2008 amendment, substituted “subdivision (xi)(A) of this section” for “this paragraph” in (a)(xi)(B).

Laws 2008, ch. 116, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 13, 2008.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-3-743. Duties of secretary and chief engineer; other employees.

The secretary shall be custodian of the records of the district and of its corporate seal, and shall assist the board in such particulars as it may direct in the performance of its duties. The secretary shall attest, under the corporate seal of the district, all certified copies of the official records and files of the district that may be required of him by this act [§§ 41-3-701 through 41-3-779 ], or by any person ordering the same and paying the reasonable cost of transcription, and any portion of the record, so certified and attested shall prima facie import verity. The secretary shall serve also as treasurer of the district, unless a treasurer is otherwise provided for by the board. The board may also employ a chief engineer, who may be an individual, copartnership or corporation; an attorney, and such other engineers, attorneys and other agents and assistants as may needful; and may provide for their compensation which, with all other necessary expenditures, shall be taken as a part of the cost of maintenance of the improvement. The chief engineer shall be superintendent of all the works and improvements, and shall make a full report to the board each year, or oftener if required by the board, and may make such suggestions and recommendations to the board as he may deem proper. The secretary and treasurer and such other agents or employees of the district as the court may direct, shall furnish corporate surety bonds, at the expense of the district, in amount and form fixed and approved by the court, conditioned upon the faithful performance of their respective duties.

History. Laws 1957, ch. 101, § 12; W.S. 1957, § 41-92.

Cross references. —

As to employment of attorneys, agents and employees, see § 41-3-742(a)(viii).

§ 41-3-744. Quorum.

A majority of the directors shall constitute a quorum and a concurrence of a majority of those in attendance, in any matter, within their duties, shall be sufficient for its determination, except as otherwise herein provided.

History. Laws 1957, ch. 101, § 11; W.S. 1957, § 41-93.

§ 41-3-745. Acquisition of rights-of-way.

Whenever, pursuant to this act [§§ 41-3-701 through 41-3-779 ], the electors of a water conservancy district shall have authorized a contract with the United States for construction and acquisition of works and water rights, which contract shall have obligated the district to acquire rights-of-way therefor to be conveyed by the district to the United States upon reimbursement by the United States, then the district, without further election and through its board of directors, shall have power to do all acts for acquiring such rights-of-way, including borrowing of and paying interest upon, such sums of money as shall be required to make deposits fixed by the court for the possession and to pay awards on condemnation of said rights-of-way as well as amounts up to the appraised values of the particular rights-of-way as shall have been fixed by the appraisers for the United States in each instance of negotiated purchases, notwithstanding the sum borrowed shall be greater than the ordinary annual incomes and revenues of the district.

History. Laws 1957, ch. 101, § 14; W.S. 1957, § 41-94.

§ 41-3-746. Contracts for use of water; power of board to sell or lease water; securing of payments generally.

The board may sell, lease or otherwise dispose of the use of water by term contracts or by contracts for the perpetual use of such water to persons, public corporations, mutual ditch companies, water users’ associations and other private corporations for irrigation or commercial use as shall be provided by contracts, in writing, authorized and entered into by the board; and the board shall require that security be given to secure the payments to be made under such contract or contracts.

History. Laws 1957, ch. 101, § 26; W.S. 1957, § 41-95.

§ 41-3-747. Contracts for use of water; means of owners meeting annual installment payments.

1. To meet the annual installments as provided in contracts for the use of water:
   1. A water users’ association may bind itself to levy an annual assessment on the use of water and to secure same by liens on land and water rights or in such manner as may be provided by law;
   2. Mutual ditch or irrigation company may bind itself by mortgage upon its irrigation works and system and/or to levy annual assessments upon its stockholders; and
   3. Any person or corporation landowner may create a mortgage lien upon lands and/or give other security satisfactory to the board; and all such contracts shall provide for forfeiture of the use of water for nonpayment of assessments and/or installments in the same manner and procedure as provided by statute for forfeiture of stock in a mutual ditch company.

History. Laws 1957, ch. 101, § 27; W.S. 1957, § 41-96.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-3-748. Surplus funds.

Whenever a contract of indebtedness has been created by the district, it shall be lawful for the board to make the annual levy of taxes and special assessments in such amount as will create a surplus of funds to meet the annual installments of indebtedness and/or the payment of bonds and interest, and the necessary maintenance and operating charges, and the board shall cause such surplus funds to be placed in a sinking fund which may be used for the payments of contingencies, defaults and delinquencies, and to pay the future annual installments of indebtedness on contract and/or bonds and interest.

History. Laws 1957, ch. 101, § 28; W.S. 1957, § 41-97.

§ 41-3-749. Use and distribution of water generally.

1. The board shall have the following powers concerning the management, control, delivery, use and distribution of water by the district, to wit:
   1. To make and enforce all reasonable rules and regulations for the management, control, delivery, use and distribution of water;
   2. To withhold the delivery of water upon which there are any defaults or delinquencies of payment;
   3. To provide for and declare forfeitures of rights to the use of water upon default or failure to comply with any order, contract or agreement for the purchase, lease or use of water and to resell, lease or otherwise dispose of water upon which forfeiture has been declared;
   4. To allocate and reallocate the use of water to lands within the district;
   5. To provide for and grant the right, upon terms, to transfer water from lands to which water has been allocated to other lands within the district and to discharged liens from lands to which the same was theretofore attached and to create liens, as provided in this act [§§ 41-3-701 through 41-3-779 ], upon lands to which the use of such water is transferred.

History. Laws 1957, ch. 101, § 29; W.S. 1957, § 41-98.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-3-750. Allotment of water to landowner under disability.

Where the landowner in a water conservancy district, organized under this act [§§ 41-3-701 through 41-3-779 ] is under disability by reason of infancy, insanity or otherwise, or lands are held under administration, executorship, guardianship, conservatorship, trusteeship, receivership or other similar proceeding, the administrator, executor, guardian, conservator, trustee, receiver or other like officer shall be considered the “landowner” for all purposes within the terms of this act, and when authorized by the court having jurisdiction of the estate or lands, such administrator, executor, guardian, conservator, trustee, receiver or other like officer may petition for an allotment of water, in such quantity as determined by such court, as will, together with the present supply of water for irrigation purposes make an adequate supply for the irrigation of such lands; or in the event such administrator, executor, guardian, conservator, trustee, receiver or other like officer has heretofore petitioned for a supply of water for irrigation of lands so held as aforesaid, the court having jurisdiction of the estate or lands, may ratify or confirm the petition for such quantity of water as it may determine will make an adequate supply for the irrigation of such lands, and such petition so made and authorized or ratified and confirmed as aforesaid shall have the same effect and be binding upon all parties interested in such lands to the same extent as though made by a “landowner” while not under disability.

History. Laws 1957, ch. 101, § 30: W.S. 1957, § 41-99.

§ 41-3-751. District boundary changes.

The boundaries of any district organized under the provision of this act [§§ 41-3-701 through 41-3-779 ] may be changed in the manner herein prescribed, but the change of boundaries of the district shall not impair or affect its organization or its rights in or to property, or any of its rights or privileges whatsoever; nor shall it affect or impair or discharge any contract, obligation, lien or charge for or upon which it might be liable or chargeable had such change of boundaries not been made. The owners of lands may file with the board a petition, in writing, praying that such lands be included in the district. The petition shall describe the tracts or body of land owned by the petitioners, and such petition shall be deemed to give assent of the petitioners to the inclusion in said district of the lands described in the petition, and such petition must be acknowledged in the same manner that conveyances of land are required to be acknowledged. The secretary of the board shall cause notice of filing of such petition to be given and published in the county in which the lands are situated, which notice shall state the filing of such petition, names of petitioners, descriptions of lands mentioned and the prayer of said petitioners; giving notice to all persons interested to appear at the office of the board at the time named in said notice and show cause in writing, if any they have, why the petition should not be granted. The board shall at the time and place mentioned or at such time or times at which the hearing may be adjourned, proceed to hear the petition and all objections thereto, presented, in writing, by any person showing cause why said petition should not be granted. The failure of any person interested to show cause, in writing, shall be deemed and held and taken as an assent on his part to the inclusion of such lands in the district as prayed for in the petition. If the petition be granted, the board shall make an order to that effect and file same with the clerk of the court and upon order of the court said lands shall be included in the district.

History. Laws 1957, ch. 101, § 31; W.S. 1957, § 41-100.

§ 41-3-752. Petition for exclusion of lands.

The owner or owners in fee of any lands constituting a portion of the district may file with the board a petition praying that such lands be excluded and taken from said district. Petitions shall describe the lands which the petitioners desire to have excluded. Such petition must be acknowledged in the same manner and form as required in case of a conveyance of land and be accompanied by a deposit of money sufficient to pay all costs of the exclusion proceedings. The secretary of the board shall cause a notice of filing of such petition to be published in the county in which said lands, or the major portion thereof, are located. The notice shall state the filing of such petition, the names of petitioners, descriptions of lands mentioned in said petition, and the prayer of said petitioners; and it shall notify all persons interested to appear at the office of said board at the time named in said notice, showing cause in writing, if any they have, why said petition should not be granted. The board at the time named in said notice, or at the time or times at which the hearing of said petition may be adjourned, shall proceed to hear the petition and all objections thereto, presented, in writing, by any person showing cause as aforesaid, why the prayer of the petition should not be granted. The filing of such petition shall be deemed and taken as an assent by each and all such petitioners to the exclusion from the district of the lands mentioned in the petition, or any part thereof. The board, if they deem it not for the best interests of the district that the lands mentioned in the petition, or portion thereof, shall be excluded from the district, shall order that said petition be denied, but if they deem it for the best interest of the district that the lands mentioned in the petition, or some portion thereof, be excluded from the district, and if there are no outstanding bonds of the district, then the board may order the lands mentioned in the petition or some portion thereof, to be excluded from the district. Provided, further, that in case a contract has been made between the district and the United States or any agency thereof, no change shall be made in the boundaries of the district unless the secretary of the interior shall assent thereto in writing and such assent be filed with the board. Upon such assent, any lands excluded from the district shall upon order of the court be discharged from all liens in favor of the United States under the contract with the United States or under bonds deposited with its agents. Upon allowance of such petition, the board shall file a certified copy of the order of the board making such change with the clerk of the court and upon order of the court said lands shall be excluded from the district.

History. Laws 1957, ch. 101, § 32; W.S. 1957, § 41-101.

§ 41-3-753. Bonds; authority of board to issue; purpose; terms; execution; tax exemptions.

To pay for construction, operation and maintenance of the works and expenses preliminary and incidental thereto, the board is hereby authorized to enter into contract with the United States or an agency thereof, providing for payment in installments or to issue negotiable bonds of the district. If bonds are authorized, the same shall bear interest payable semiannually and shall be due and payable not less than ten (10) nor more than fifty (50) years from their dates. The form, terms and provisions of bonds, provisions for their payment and conditions for their retirement and calling, not inconsistent with law, shall be vested and determined by the board and they shall be issued as hereinafter provided in payment of the works, equipment, expenses and interest during the period of construction. Bonds shall be executed in the name of and on behalf of the district and signed by the president of the board with the seal of the district affixed thereto and attested by the secretary of the board. Bonds shall be in denominations as the board determines and shall be payable to the bearer and may be registered in the office of the county treasurer of the county wherein the organization of the district has been effected, with the interest coupons payable to bearer, which shall bear the facsimile signature of the president of the board. The bonds are exempt from all state, county, municipal, school and other taxes imposed by any taxing authority of the state of Wyoming and shall not be sold at less than par and accrued interest.

History. Laws 1957, ch. 101, § 33; W.S. 1957, § 41-102; Laws 1971, ch. 254, § 34; 1981, ch. 143, § 1; 1982, ch. 28, § 1.

§ 41-3-754. Bonds; election prior to issuance generally.

Whenever the board incorporated under this act shall by resolution adopted by a majority of the said board, determine that the interests of said district and the public interest or necessity demand the acquisition, construction or completion of any source of water supply, water works, or other improvements, or facility, or the making of any contract with the United States or other persons or corporation, to carry out the objects or purposes of said district, wherein the indebtedness or obligation shall be created, to satisfy which shall require a greater expenditure than the ordinary annual income and revenue of the district shall permit, said board shall order the submission of the proposition of insuring the obligation or bonded or other indebtedness for the purposes set forth in said resolution, to the qualified electors of the district as shall have paid a tax on property in the district in the year preceding the election, at an election held for that purpose. Any election held for the purpose of submitting any proposition or propositions of incurring the obligation or indebtedness shall be held at an election as permitted for bond elections by the Political Subdivision Bond Election Law, W.S. 22-21-101 through 22-21-112 . The declaration of public interest or necessity herein required and the provision for the holding of the election may be included within one (1) and the same resolution, which resolution, in addition to the declaration of public interest or necessity shall recite the objects and purposes for which the indebtedness is proposed to be incurred, the estimated cost of the works or improvements, as the case may be, the amount of principal of the indebtedness to be incurred therefor, and the maximum rate of interest to be paid on the indebtedness. The resolution shall also recite the date upon which the election shall be held and the manner of holding the same and the method of voting for or against the incurring of the proposed indebtedness. The resolution shall also fix the compensation to be paid the officers of the election and shall designate the precincts and polling places and shall appoint for each polling place, the officers of the election, which officers shall be registered electors and shall consist of three (3) judges, one (1) of whom shall act as clerk, who shall constitute a board of election for each polling place. The description of precincts may be made by reference to any order or orders of the board of county commissioners of the county or counties in which the district or any part thereof is situated or by reference to any previous order, or resolution of the board or by detailed description of the precincts. Precincts established by the boards of the various counties may be consolidated for special elections held hereunder. In the event any election under this section shall be called to be held concurrently with any other election or shall be consolidated therewith, the resolution calling the election hereunder need not designate precincts or polling places or the names of officers of election, but shall contain reference to the act or order calling the other election and fixing the precincts and polling places and appointing election officers.

History. Laws 1957, ch. 101, § 34; W.S. 1957, § 41-103; Laws 1996, ch. 97, § 2; 2002, Sp. Sess., ch. 18, § 2.

§ 41-3-755. Bonds; election prior to issuance; publication of resolution.

The resolution provided in W.S. 41-3-754 shall be published once a week for two (2) consecutive weeks, the last publication of which shall be at least ten (10) days prior to the date set for said election, in a newspaper of general circulation printed and published within the district, and no other or further notice of such election or publication of the names of election officers or of the precincts or polling places need be given or made.

History. Laws 1957, ch. 101, § 35; W.S. 1957, § 41-104.

§ 41-3-756. Bonds; election prior to issuance; conduct of election; canvassing of returns; declaration of results.

The respective election boards shall conduct the election in their respective precincts in the manner prescribed by law for the holding of general elections, and shall make their returns to the secretary of the district. At any regular or special meeting of the board held not earlier than five (5) days following the date of such election, the returns thereof, shall be canvassed and the results thereof declared. In the event that any election held hereunder shall be consolidated with any primary or general election, the returns thereof shall be made and canvassed at the time and in the manner provided by law for the canvass of the returns of such primary or general election. It shall be the duty of such canvassing body or bodies to promptly certify and transmit to the board a statement of the results of the vote upon the proposition submitted thereunder. Upon receipt of such certificate, it shall be the duty of the board to tabulate and declare the results of the election held thereunder.

History. Laws 1957, ch. 101, § 36; W.S. 1957, § 41-105.

§ 41-3-757. Bonds; election prior to issuance; approval.

In the event that it shall appear from said returns that a majority of said qualified electors of the district who shall have voted on any proposition submitted hereunder at such election voted in favor of such proposition, the district shall thereupon be authorized to incur such indebtedness or obligations, enter into such contract, and/or issue and sell such bonds of the district, all for the purpose or purposes and object or objects provided for in the proposition submitted hereunder, and the resolution therefor, and in the amount so provided and at a rate of interest not exceeding the rate of interest recited in such resolution. Submission of the proposition of incurring such obligation or bonded or other indebtedness at such an election shall not prevent or prohibit submission of the same or other propositions at subsequent election or elections called for such purpose.

History. Laws 1957, ch. 101, § 37; W.S. 1957, § 41-106.

§ 41-3-758. Judicial examination and determination of board's powers.

The board may, in its discretion, at any time file a petition in the court, praying a judicial examination and determination of any power conferred hereby or by any amendment hereto or of any tax or assessment levied or of any act, proceeding or contract of the district, whether or not said contract shall have been executed, including proposed contracts for the acquisition, construction, maintenance and/or operation of works for the district. Such petition shall set forth the facts whereon the validity of such power, assessment, act, proceeding or contract is founded and shall be verified by the president of the board. Notice of the filing of said petition shall be given by the clerk of the court, under the seal thereof, stating in brief outline the contents of the petition and showing where a full copy of any contract or contracts, therein mentioned, may be examined. Said notice shall be served by publication in at least five (5) consecutive issues of a weekly newspaper of general circulation published in the county in which the principal office of the district is located, and by posting the same in the office of the district at least thirty (30) days prior to the date fixed in said notice for the hearing on said petition. Any owner of property in the district or person interested in the contract or proposed contract may appear and demur to or answer said petition at any time prior to the date fixed for said hearing or within such further time as may be allowed by the court; and the petition shall be taken as confessed by all persons who fail so to appear. The said petition and notice shall be sufficient to give the court jurisdiction and upon hearing, the court shall examine into and determine all matters and things affecting the question submitted, shall make such findings, with reference thereto, and render such judgment and decree thereon as the case warrants. Costs may be divided or apportioned among the contesting parties in the discretion of the trial court. Review of the judgment of the court may be had as in other similar cases, except that such review must be applied for within thirty (30) days after the time of the rendition of such judgment, or within such additional time as may be allowed by the court within thirty (30) days. The Code of Civil Procedure [title 1] shall govern in matters of pleading and practice where not otherwise specified herein. The court shall disregard any error, irregularity or omission which does not affect the substantial rights of the parties.

History. Laws 1957, ch. 101, § 38; W.S. 1957, § 41-107.

§ 41-3-770. Methods of levying and collecting; classifications generally.

1. In addition to the other means of providing revenue for such districts as herein provided, the board shall have power and authority to levy and collect taxes and special assessments for maintaining and operating such works and paying the obligations and indebtedness of the district by any one (1) or more of the methods or combinations thereof, classified as follows:
   1. Class A. — To levy and collect taxes upon all property within the district as hereinafter provided;
   2. Class B. — To levy and collect assessments for special benefits accruing to property within municipalities for which use of water is allotted as hereinafter provided;
   3. Class C. — To levy and collect assessments for special benefits accruing to lands within irrigation districts for which use of water is allotted as hereinafter provided;
   4. Class D. — To levy and collect assessments for special benefits accruing to lands for which use of water is allotted as hereinafter provided.

History. Laws 1957, ch. 101, § 16; W.S. 1957, § 41-108.

Cross references. —

As to surplus funds, see § 41-3-748 .

As to bonds, see §§ 41-3-753 through 41-3-757 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-3-771. Methods of levying and collecting; class A.

To levy and collect taxes under class A as provided in W.S. 41-3-770 , the board shall, in each year, determine the amount of money necessary to be raised by taxation, taking into consideration other sources of revenue of the district, and shall fix a rate of levy which when levied upon every dollar of assessed valuation of property within the district, and with other revenues will raise the amount required by the district, to supply funds for paying expenses of organization, for surveys and plans, paying the costs of construction, operating and maintaining the works of the district; provided, however, that said rate shall not exceed one-half (1/2) mill on the dollar, prior to the delivery of water from the works, and thereafter not to exceed one (1) mill on the dollar, of assessed valuation of the property within the district, except in the event of accruing defaults and/or deficiencies where an additional levy may be made as provided in W.S. 41-3-775 . The board shall on or before the third Monday of July of each year, certify to the board of county commissioners of each county within the district or having a portion of its territory in the district, the rate so fixed with direction that at the time and in the manner required by law for levying of taxes for county purposes, such board of county commissioners shall levy such tax upon the assessed valuation of all property within the district, in addition to such other taxes as may be levied by such board of county commissioners, at the rate so fixed and determined; provided, however, that said assessment and tax levied under the provisions of this act [§§ 41-3-701 through 41-3-779 ] shall not be construed as being a part of the general county mill levy.

History. Laws 1957, ch. 101, § 17; W.S. 1957, § 41-109.

§ 41-3-772. Methods of levying and collecting; class B.

1. To levy and collect special assessments under class B as provided in W.S. 41-3-770 , the board shall make an allotment of water to each petitioning municipality in the district in the manner as hereinafter provided, in such quantity as will in the judgment of the board, when added to the then present supply of water of such municipality, make an adequate supply for such municipality, and shall fix and determine the rate or rates per acre-foot, and terms at and upon which such water shall be sold, leased, or otherwise disposed of, for use by such municipalities; provided, however, that such rates shall be equitable although not necessarily equal or uniform for like classes of services throughout the district. In the event any city, city and county, or town shall desire to purchase, lease or otherwise obtain the beneficial use of waters of the district for domestic or irrigation purposes, the legislative body of such municipality shall by ordinance authorize and direct its mayor and clerk to petition the board for an allotment of water, upon terms prescribed by the board, which petition shall contain inter alia, the following:
   1. Name of municipality;
   2. Quantity of water to be purchased or otherwise acquired;
   3. Price per acre-foot to be paid;
   4. Whether payments are to be in cash or annual installments;
   5. Agreement by the municipality to make payments for the beneficial use of such water together with annual maintenance and operating charges and to be bound by the provisions of this act [§§ 41-3-701 through 41-3-779 ] and the rules and regulations of the board.
2. The secretary of the board shall cause notice of the filing of such petition to be given and published once each week for two (2) successive weeks, in a newspaper published in the county in which said municipality is situated, which notice shall state the filing of such petition and giving notice to all persons interested to appear at the office of the board, at a time named in said notice and show cause, in writing, if any they have, why the petition should not be granted.
3. The board at the time and place mentioned in said notice or at such time or times at which the hearing of said petition may adjourn, shall proceed to hear the petition and objections thereto, presented, in writing, by any person showing cause as aforesaid why said petition should not be granted. The failure of any person interested to show cause in writing, as aforesaid, shall be deemed and taken as an assent on his part to the granting of said petition. The board may at its discretion, accept or reject the said petition, but if it deems it for the best interest of the district that said petition be granted, shall enter an order granting the said petition and from and after such order the said municipality shall be deemed to have purchased, leased, or otherwise acquired the beneficial use of water as set forth in said order. If said petition is granted, the board shall, in each year, determine the amount of money necessary to be raised by taxation from property within such municipality to pay the annual installments and a fair proportionate amount of estimated operating and maintenance charges for the next succeeding year as provided in the order granting said petition, and prepare a statement showing the tax rate to be applied to all property in such municipality, which rate shall be the rate fixed by resolution of the board modified to the extent necessary to produce from each such municipality only the amount of money apportioned thereto in said resolution, less any amount paid or undertaken to be paid by such municipality in cash or as credited thereto by payments from the general funds of such municipality. Upon receipt by the board of county commissioners of each county, wherein such municipality is located, of a certified copy of such resolution showing the tax rate to be applied to all property in each municipality and showing the municipalities and the property which is exempt therefrom, if any, it shall be the duty of the county officers to levy and collect such tax in addition to such other tax as may be levied by such board of county commissioners at the rate so fixed and determined.

History. Laws 1957, ch. 101, § 18; W.S. 1957, § 41-110.

§ 41-3-773. Methods of levying and collecting; class C.

1. To levy and collect special assessments upon lands under class C as provided in W.S. 41-3-770 , the board shall make an allotment of water to each of the petitioning irrigation districts within the district in the manner as hereinafter provided in such quantity as will in the judgment of the board, when added to the present supply of water of such irrigation district, make an adequate supply of water for such irrigation district, and shall fix and determine the rate or rates per acre-foot and terms at and upon which water shall be sold, leased, or otherwise disposed of to such irrigation district; provided, however, that such rates shall be equitable although not necessarily equal or uniform for like classes of services throughout the district. In the event any irrigation district shall desire to purchase, lease or otherwise obtain the beneficial use of waters of the district, the board of such irrigation district shall by resolution authorize and direct its president and secretary to petition the board for an allotment of water, upon terms prescribed by the board, which petition shall contain inter alia, the following:
   1. Name of irrigation district;
   2. Quantity of water to be purchased or otherwise acquired;
   3. Price per acre-foot to be paid;
   4. Whether payments are to be made in cash or annual installments;
   5. Agreement by such irrigation district to make payments for the beneficial use of such water, together with annual maintenance and operating charges, and to be bound by the provision of this act [§§ 41-3-701 through 41-3-779 ] and the rules and regulations of the board.
2. The secretary of the board shall cause notice of the filing of such petition to be given and published, which notice shall state the filing of such petition and giving notice to all persons interested to appear at the office of the board at a time named in said notice and show cause in writing, if any they have, why the petition should not be granted. The board at the time and place mentioned in said notice, or at such times at which the hearing of said petition may be adjourned, shall proceed to hear the petition and objections thereto, presented, in writing, by any person showing cause as aforesaid why said petition should not be granted. The failure of any person interested to show cause, in writing, as aforesaid, shall be deemed and taken as an assent on his part to the granting of said petition. The board may, at its discretion, accept or reject the said petition, but if it deems it for the best interest of the district that said petition shall be granted, shall enter an order to that effect granting the said petition and from and after such order, the irrigation district and/or persons therein shall be deemed to have purchased, leased, or otherwise acquired the beneficial use of water as set forth in said order. If said petition is granted, the board shall, in each year, determine the amount of money necessary to be raised by special assessment on lands within such irrigation district and shall certify to the board of county commissioners of the county in which the lands of such irrigation district are located the amount of the assessment, plus a fair proportionate amount of the estimated operating and maintenance charges for the next succeeding year on each tract of land on or before the third Monday in July of each year. Thereupon the county commissioners shall certify to and deliver said assessment roll to the county assessor of such county and such county assessor shall extend the amount of such special assessment, plus said operating and maintenance charges, on the tax roll as a special assessment against the lands upon which said special assessment is made. If a subdistrict or subdistricts are organized as herein provided, assessments of special benefits shall be made, spread on the tax rolls and collected in the same manner provided in the case of irrigation districts. A district may elect to establish the special assessment, operating and maintenance amount and due date after the third Monday of July and on or before the third Monday of October, provided the district shall be responsible for the billing and collection of special assessments, operating and maintenance charges.

History. Laws 1957, ch. 101, § 19; W.S. 1957, § 41-111; Laws 2010, ch. 19, § 1.

The 2010 amendment, effective July 1, 2010, added the last sentence in (b).

§ 41-3-774. Method of levying and collecting; class D.

1. To levy and collect special assessments upon lands under class D as provided in W.S. 41-3-770 , the board shall make an allotment of water to petitioning owners of lands in the district, upon which water can be beneficially used in the manner as hereinafter provided, in such amount as will, in the judgment of the board, together with the present supply of water for irrigation purposes on such lands, make an adequate water supply for irrigation of such lands, and shall fix and determine the rate or rates per acre-foot and the terms at and upon which water shall be sold, leased or otherwise disposed of, for use on said lands. In the event that any person or private corporation shall elect to purchase, lease or otherwise obtain the beneficial use of waters of the district for irrigation of lands, such person or corporation shall petition the board for an allotment of water upon terms prescribed by the board, which petition shall contain inter alia, the following:
   1. Name of applicant;
   2. Quantity of water to be purchased or otherwise acquired;
   3. Description of lands upon which the water will be used and attached;
   4. Price per acre-foot to be paid;
   5. Whether payment will be made in cash or annual installments;
   6. Agreement that the annual installments and the charges for maintenance and operating shall become a tax lien upon the lands for which such water is petitioned and allotted and to be bound by the provision of this act [§§ 41-3-701 through 41-3-779 ] and the rules and regulations of the board.
2. The board may, in its discretion, accept or reject the said petition, but if it deems it for the best interests of the district that said petition be granted, shall enter an order granting the said petition and from and after such order, the said petitioner shall have deemed to have agreed to the purchase, lease or other means of acquiring the beneficial use of water under the terms set forth in said petition and order. Such order shall provide for payment on the basis of rate per acre-foot of water allotted to said lands within the district, providing that the board may divide the district into units and fix a different rate per acre-foot of water in the respective units and provided, further, that such rates shall be equitable although not necessarily equal or uniform for like classes of services through the district.
3. The secretary of the board shall cause notice of the filing of such petition to be given and published, which notice shall state the filing of such petition and giving notice to all persons interested to appear at the office of the board at a time named in said notice and show cause in writing, if any they have, why the petition should not be granted. The board at the time and place mentioned in said notice, or at such time or times at which the hearing on said petition may be adjourned, shall proceed to hear the petition and objections thereto, presented, in writing, by any person showing cause as aforesaid, why said petition should not be granted. The failure of any person interested to show cause, in writing, as aforesaid, shall be deemed and taken as an assent on his part to the granting of said petition. The board may, at its discretion, accept or reject the said petition, but if it deems it for the best interest of the district that said petition shall be granted, shall enter an order to that effect granting said petition, and from and after such order the petitioner and/or persons interested therein, shall be deemed to have purchased, leased or otherwise acquired the beneficial use of water as set forth in said order. If such petition is granted, the board shall cause a certified copy of the order granting said petition to be recorded in the county in which said lands are located and thereafter, the annual installments and annual operating and maintenance charges shall be a perpetual tax lien upon such lands. The board shall on or before the third Monday in July of each year, certify to the board of county commissioners of the county within the district in which such lands are located the amount of the annual installments, plus a fair proportionate amount of the estimated operating and maintenance charges apportioned to said lands for the next succeeding year. Thereupon, the county commissioners shall certify to and deliver said assessment roll to the county assessor of such county and such county assessor shall extend the amount so certified on the tax roll as a flat special assessment against the lands for which such water is petitioned and allowed.

History. Laws 1957, ch. 101, § 20; W.S. 1957, § 41-112.

§ 41-3-775. Considerations affecting annual levies and assessments; deficiencies; additional assessments.

The board in making the annual assessments and levies as herein provided, shall take into account the maturing indebtedness for the ensuing year as provided in its contracts and/or the maturing of bonds and interest on all bonds, and deficiencies and defaults of prior years, and shall make ample provision for the payment thereof. In case the proceeds of such levies and assessments made under the provisions of this act [§§ 41-3-701 through 41-3-779 ], together with other revenues of the district, are not sufficient to punctually pay the annual installments on its contracts and/or bonds, and interest thereon and to pay defaults and deficiencies, then the board shall make such additional levies of taxes and/or assessments as may be necessary for such purposes and notwithstanding any limitations by contract, order, tax lien, or otherwise, such taxes and assessments shall be made to continue until the indebtedness of the district shall be fully paid; provided, however, that the amount of such additional levies of taxes under class A as provided in W.S. 41-3-770 , shall not in any one (1) year exceed an amount that would be raised by a levy of one-half (1/2) mill against the assessed value of such property as fixed for general tax purposes; provided, that such levies for defaults and deficiencies shall not at any time be so made as to impose upon class A as herein provided, payments in excess of twenty-five percent (25%) of the anticipated revenue from all sources to be raised for the specific purpose of payment of existing defaults and deficiencies; and provided further, that in making such additional levies and/or assessments, the board shall take into account all sources of revenue and equitably distribute the burden of such defaults and deficiencies according to the uses and benefits as provided in this act.

History. Laws 1957, ch. 101, § 21; W.S. 1957, § 41-113.

§ 41-3-776. Objections to assessments.

1. Prior to the third Monday in July of each year in which assessments are made, the board shall appoint a time and place or places where it will meet within the district for the purposes of hearing objections to assessments and prior notice of such hearing shall be given by publication in two (2) issues a week apart, in some newspaper of general circulation published in each county; provided that if there is any county in the district in which there is no newspaper published, then such notice shall be published in an adjoining county. Said notice shall notify the owners of property in the district that in the secretary’s office may be found and examined a description of the property so assessed, the amount of the assessment thereon fixed by the board, and the time and place or places fixed by the board for the hearing of objections to such assessments. It shall not be necessary for said notice to contain separate descriptions of the lots or tracts of real estate, but it shall be sufficient if the notice shall contain such descriptions as will inform the owner whether or not his real estate is covered by such descriptions, and to inform the owners where can be found of record the amount of assessments. If in the opinion of any person whose property is assessed, his property has been assessed too high, or has been erroneously or illegally assessed, he may at any time before the date of such hearing, file written objections to such assessments, stating the grounds of such objections, which statement shall be verified by the affidavit of said person or his agent. In such hearing the board shall hear such evidence and arguments as may be offered concerning the correctness or legality of such assessment and may modify or amend the same. Any owner of property desiring to appeal from the findings of the board as to assessment shall, within thirty (30) days from the finding of the board, file with the clerk of the court a written notice making demand for trial by the court. The appellant at the same time shall file a bond with good and sufficient security to be approved by the clerk of said court in the sum not exceeding two hundred dollars ($200.00) to the effect that if the finding of the court be not more favorable to the appellant than the finding of the board, the appellant will pay the cost of the appeal. The appellant shall state definitely from what part of the order the appeal is taken. In case more than one (1) appeal is taken, the court may upon its showing that the same may be consolidated without injury to the interests of any one, consolidate and try the same together.
2. The court shall not disturb the findings of the board unless the findings of the board in any case are manifestly disproportionate to the assessments imposed upon other property in the district created under this act [§§ 41-3-701 through 41-3-779 ]. The trial shall be to the court and the matter shall take precedence before the court and shall be taken up as promptly as may be after the appeal is filed. If no appeal is taken from the findings of the board within the time prescribed in this section, or after the finding of the court in case an appeal is taken from the findings of the board, then the assessment shall be final and conclusive evidence that said assessments have been made in proportion to the benefits conferred upon the property in said district by reason of the improvements to be constructed under the provisions of this act and such assessments shall constitute a perpetual lien upon such property so assessed until paid.

History. Laws 1957, ch. 101, § 22; W.S. 1957, § 41-114.

Cross references. —

As to actions to enjoin collection of or to recover back taxes, see § 39-13-109 .

§ 41-3-777. Duties of city and county taxing officials.

It shall be the duty of the officer or body having authority to levy taxes within each county, city and county, or town, to levy the taxes and special assessments as provided in this act [§§ 41-3-701 through 41-3-779 ] and it shall be the duty of all county, or city and county officials, charged with the duty of collecting taxes, to collect such taxes and special assessments in the time, form and manner and with like interest and penalties as county or city and county taxes are collected and when collected to pay the same to the district, ordering its levy and/or collection, and the payment of such collections shall be made through the secretary of the district and paid into the depository thereof to the credit of the district. All taxes and assessments made under this act together with all interest thereon and penalties for default in payment thereof, and all costs in collection of the same, shall, until paid, constitute a perpetual lien on a parity with the tax lien of general, state, county, city, town or school taxes and no sale of such property to enforce any general, state, county, city, town or school tax or other liens shall extinguish the perpetual lien of such taxes and assessments.

History. Laws 1957, ch. 101, § 23; W.S. 1957, § 41-115.

§ 41-3-778. Exemptions.

All property of whatever kind and nature owned by the state and by towns, cities, school districts, drainage districts, irrigation districts, park districts, water districts, or any other governmental agency or agencies within the said district, shall be exempt from assessment and levy by the board as provided in this act [§§ 41-3-701 through 41-3-779 ] for the purposes herein contained.

History. Laws 1957, ch. 101, § 25; W.S. 1957, § 41-116.

§ 41-3-779. Nonpayment.

If the taxes and/or assessments levied are not paid as herein provided, then the real property shall be sold at the regular tax sale for the payment of such taxes and assessments, interest and penalties, in the manner provided by the statutes of the state of Wyoming for selling property for nonpayment of general taxes. If there are no bids at said tax sale for the property so offered under class A and class B, said property shall be struck off to the county, and the county shall account to the district in the same manner as provided by law for accounting for school, town and city taxes. And if there are no bids for the property so offered under class C and class D, said property shall be struck off to the district and the tax certificate shall be issued in the name of the district and the board shall have the same power with reference to sale of said tax certificate, as now vested in county commissioners and county treasurer when property is struck off to the counties.

History. Laws 1957, ch. 101, § 24; W.S. 1957, § 41-117.

§ 41-3-801. Petition for establishment; notice of election; qualifications of voters; conduct of election.

A flood control district may be established under the procedures for petitioning, hearing and election of special districts, and subsequent elections shall be held, as set forth in the Special District Elections Act of 1994. The petition and notice of publication shall describe by metes and bounds, following as nearly as possible established school district boundaries, the lands to be included in said district.

History. Laws 1955, ch. 167, § 1; W.S. 1957, § 41-118; Laws 1994, ch. 99, § 2; 1996, ch. 97, § 2; 1998, ch. 115, § 2.

Cross references. —

As to construction of Glendo Reservoir and storage of water by United States, see § 41-1-101 .

As to public works and contractor's bond, see §§ 16-6-101 through 16-6-121 .

As to county bond elections, see § 18-4-302 et seq.

As to registration of voters generally, see §§ 22-3-101 through 22-3-118 .

§ 41-3-802. Election of board of directors; number; term; quorum; bond; powers and duties generally; election of officers.

1. If the formation of the district is approved the board of county commissioners shall enter a finding to that effect upon its records after which the district shall be considered to be established and shall be empowered through its governing board of directors to acquire personal property and equipment for control purposes by gift, devise, bequest, donation, or purchase and to enter into contracts for the acquisition by purchase or lease, or otherwise, of personal property and equipment; to convey, lease and otherwise dispose of its property for flood control purposes and to establish sinking funds for the replacement of worn out or obsolete equipment; and upon the vote of a majority of the voters of the district voting at an election held as provided by W.S. 22-21-101 through 22-21-112 , the district shall be empowered to issue bonds for the purpose of purchasing equipment and supplies and for the operational expense of the district.
2. A district established under this act [§§ 41-3-801 through 41-3-803 ] shall acquire and hold property in the name of “ . . . . .  Flood Control District of  . . . . .  County”, state of Wyoming, and the name and a record thereof shall be entered upon the board of county commissioners’ records of said county of the establishment of said district, such name to be selected by the board of directors of the district, and said district as established shall have power to sue and be sued by such name.
3. The election of officers shall be held at the same time as the election for formation of the district. At the election a board of six (6) directors shall be elected by written ballot, who shall serve without compensation to govern the affairs of the district until the first subsequent director election pursuant to W.S. 22-29-112 . At that election two (2) members of the board shall be elected for one (1) year, two (2) for two (2) years, and two (2) for three (3) years, so that each succeeding year the term of two (2) members will expire and two (2) members will be elected for a three (3) year term. Each year the board shall elect one (1) of its members secretary-treasurer. Before the secretary-treasurer enters on the discharge of his duties, he shall execute to the state of Wyoming, a bond with an approved corporate surety or three (3) or more sufficient sureties, to be approved by the district board of directors and in such penal sum as they may direct, which bond with the approval of the board endorsed thereon by their president, shall be filed in the office of the county clerk. It is further directed that four (4) members of this board shall constitute a quorum and that no business shall transpire without a quorum in attendance. Any expenditure of funds shall be made only by signed vouchers bearing the signatures of both president and secretary-treasurer.
4. At least thirty (30) days prior to the time for annual levy of general taxes by the board of county commissioners of the county wherein any such district is situated, the board of directors of such district shall certify to the board of county commissioners the amount of special mill levy, provided for in W.S. 41-3-803 , which said district board considers necessary for district operations during the following year.

History. Laws 1955, ch. 167, § 2; W.S. 1957, § 41-119; Laws 1994, ch. 99, § 2; 1998, ch. 115, § 2.

§ 41-3-803. Special tax authorized; power of board to enter into cooperative agreements; authority to make rules and hire employees.

1. The board of county commissioners of the county wherein each district is situated shall, at the time of the annual levy of general taxes, levy an additional special tax upon the real property in the amount certified to it by the district board of directors under W.S. 41-3-802 , but not to exceed twelve (12) mills on each dollar of assessed valuation on all real property in the respective districts for the equipping and operational expenses of such district and for the payment of the bonded indebtedness of the same. The district board may receive voluntary donations and appropriations of money from any other source, and such donation hereinafter provided, by the county treasurer upon request of the district board. Nothing in this act [§§ 41-3-801 through 41-3-803 ] shall be construed to prohibit boards of county commissioners from appropriating funds, paying any money or cooperating with any district so established under this act for the purpose of controlling or eradicating floods and all aforementioned moneys shall be turned over to the county treasurer to be kept in a fund designated as “ . . . . .  Flood Control District of  . . . . .  County Fund”. Authority for such appropriations, payments or cooperation by boards of county commissioners is hereby authorized.
2. Districts created under this act are authorized to enter into cooperative agreements with any federal, state, local, or private agency for the control and eradication of floods on highways, rights-of-way, rivers, streams, canals or ditches. Flood control district boards are hereby authorized and empowered to make and adopt rules and regulations necessary for carrying out the purposes and provisions of this act and to enforce such rules and regulations and shall file those rules with the county clerk for each county in which the district is located. The boards are hereby empowered to appoint employees and assistants as may be necessary and to fix their compensation.

History. Laws 1955, ch. 167, § 3; W.S. 1957, § 41-120; Laws 1994, ch. 99, § 2.

Severability. —

Laws 1955, ch. 167, § 4, reads: “It is hereby declared to be the legislative intention that if any portion, clause, phrase, section or sections of this act shall be judicially determined to be unconstitutional or invalid the remainder of the act shall continue in full force and effect.”

§ 41-3-901. Definitions.

1. As used in this act [§§ 41-3-901 through 41-3-938 ], unless the context plainly otherwise requires:
   1. “Person” means a natural person, partnership, association, corporation, municipality, irrigation district, the state of Wyoming, any agency or political subdivision thereof, and the United States or any agency thereof;
   2. “Underground water” means any water, including hot water and geothermal steam, under the surface of the land or the bed of any stream, lake, reservoir, or other body of surface water, including water that has been exposed to the surface by an excavation such as a pit;
   3. “Aquifer” means any underground geological structure or formation having boundaries that may be ascertained or reasonably inferred, in which water stands, flows or percolates;
   4. “Well” means any artificial opening or excavation in the ground, however made, by which underground water is sought or through which it flows under natural pressure or is artificially withdrawn, and a series of wells developed as a unit and pumped collectively by a single pumping unit shall be considered as one (1) well;
   5. “Construction” of a well includes boring, drilling, jetting, digging or excavating, and installing casing, pump and other devices for withdrawing or facilitating the withdrawal of underground water, or measuring the depth to the water table or the flow of the well;
   6. “Pollution” of underground water means any impairment of the natural quality of such water, however caused, including impairment by salines, minerals, industrial wastes, domestic wastes or sewage, whether indrafted directly or through infiltration into the underground water supply;
   7. “Additional supply” means underground water for irrigation use which is appurtenant to lands that have a direct flow supply of surface water or have an original supply from another underground water source. The limit of use of additional supply is beneficial use;
   8. “Hydrothermal system” means a groundwater system, including cold water recharge and transmission and warm and hot water discharge;
   9. “Hydrothermal feature” means a surface manifestation of a hydrothermal system, including, but not limited to, hot springs, geysers, mud pots and fumaroles.

History. Laws 1957, ch. 169, § 27; W.S. 1957, § 41-121; Laws 1973, ch. 171, § 2; 1995, ch. 206, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Quoted in

Town of Pine Bluffs v. State Bd. of Control, 647 P.2d 1365, 1982 Wyo. LEXIS 354 (Wyo. 1982).

Law reviews. —

For article, “Rights of Wyoming Appropriators in Underground Water,” see 1 Wyo. L.J. 111.

For note, “‘Water Mining’ and Wyoming Law,” see 17 Wyo. L.J. 232 (1963).

For article, “Geothermal Resources: A Primer for the Practitioner,” see IX Land & Water L. Rev. 327 (1974).

For article, “Water That Is Not Water,” see XIII Land & Water L. Rev. 391 (1978).

For article, “Percentage Depletion for Geothermal Energy: An Alternative Method for Calculation of Gross Income,” see XV Land & Water L. Rev. 427 (1980).

For article, “The Challenge of Mine Dewatering to Western Water Law and the New Mexico Response,” see XV Land & Water L. Rev. 445 (1980).

Am. Jur. 2d, ALR and C.J.S. references. —

Liability for injury to property occasioned by water flowing from well, 19 ALR2d 1025.

Loss by nonuser of private easement as to well, 25 ALR2d 1265.

Liability for obstruction or diversion of subterranean waters in use of land, 29 ALR2d 1354.

Liability for pollution of subterranean waters, 38 ALR2d 1265.

Liability of landowner withdrawing groundwater from own land for subsidence of adjoining owner's land, 5 ALR4th 614.

Measure and elements of damages for pollution of well or spring, 76 ALR4th 629.

Library References. —

American Law of Mining, 2nd Edition §§ 113.08, 133.02 (Matthew Bender).

§ 41-3-902. Spring waters; perfection of right to use; limitation.

All springs and spring waters where the yield does not exceed twenty-five (25) gallons per minute and where the use is for domestic or stock purposes only, shall be considered as groundwater. Perfection of the right to use spring water up to twenty-five (25) gallons per minute for domestic or stock use shall be made in accordance with the laws pertaining to groundwater.

History. Laws 1973, ch. 171, § 1; W.S. 1957, § 41-121.1.

§ 41-3-903. By-product water; definition.

By-product water is water which has not been put to prior beneficial use, and which is a by-product of some nonwater-related economic activity and has been developed only as a result of such activity. By-product water includes, but is not limited to, water resulting from the operation of oil well separator systems or mining activities such as dewatering of mines.

History. Laws 1973, ch. 171, § 1; W.S. 1957, § 41-121.2.

Law reviews. —

For comment, “Water Saved or Water Lost: The Consequences of Individual Conservation Measures in the Appropriation States,” see XI Land & Water L. Rev. 435 (1976).

§ 41-3-904. By-product water; appropriation; conditions and limitation.

1. Any person intending to appropriate by-product water for beneficial use shall file an application with the state engineer on the forms and in the manner prescribed for groundwater applications. By-product water shall be considered as being in the same class as groundwater for the purposes of administration and control. An application may be filed only if both the following conditions exist:
   1. The by-product water is intercepted while it is readily identifiable and before it has commingled with the waters of any live stream, lake, reservoir or other surface watercourse, or part of any groundwater aquifer; and
   2. The developer of the water is the applicant, or an agreement is filed in the office of the state engineer wherein the developer of the water gives the applicant permission to use the water as proposed in the application. The agreement must be signed by the developer of the water, and may contain provisions for reservation of the water to the use of the developer-grantor, and if so stipulated, the reservation can be superior in right and title to any use by the applicant-grantee.
2. In all other cases, an application to appropriate by-product water shall be governed by the laws pertaining to surface water, and by-product water shall be considered as part of the surface supply, subject to use by existing priority rights.

History. Laws 1973, ch. 171, § 1; W.S. 1957, § 41-121.3.

Law reviews. —

For comment, “Water Saved or Water Lost: The Consequences of Individual Conservation Measures in the Appropriation States,” see XI Land & Water L. Rev. 435 (1976).

§ 41-3-905. Application; generally; registration of vested rights; permit to construct well; registration of formerly exempted wells.

Nothing herein contained shall be construed so as to interfere with the right of any person to use water from any existing well where such water is economically and beneficially used for irrigation or for municipal, railway, industrial or other beneficial use, to the extent only that such continued right does not injuriously affect existing adjudicated surface rights not heretofore abandoned, and such use is hereby declared to constitute a vested right, provided, that the owner of any such right acquired before April 1, 1947, must have filed with the state engineer the statement required by W.S. 41-3-901 through 41-3-938 , on or before December 31, 1957, and the owner of any right acquired on or after April 1, 1947, must have registered his well with the state engineer as required by W.S. 41-3-901 through 41-3-938 , prior to the effective date of this act, and provided further, that the right to take underground water from any well exempted from the provisions of W.S. 41-3-901 through 41-3-938, that is not exempted from the provisions of this act, and that shall be registered with the state engineer prior to the effective date of this act, shall also constitute a vested right in the use of water with priority as of the time of completion of the well. No well shall be constructed after the effective date of this act unless a permit has been obtained from the state engineer. All existing stock and domestic wells formerly exempted may be registered with the state engineer prior to December 31, 1972. The state engineer shall make appropriate forms for such registration available with each county clerk and at such other places as he deems feasible.

History. Laws 1957, ch. 169, § 1; W.S. 1957, § 41-122; Laws 1969, ch. 213, § 1.

§ 41-3-906. Application; rights subject to preferences; rights of municipal corporations.

Rights to underground water shall be subject to the same preferences as provided by law for surface waters, and rights not preferred may be condemned and changed to a preferred use in the manner provided by law for surface waters. Nothing herein contained shall be construed to impair the rights of municipal corporations to acquire any underground water or underground water rights for a necessary public purpose by eminent domain or condemnation proceedings.

History. Laws 1957, ch. 169, § 24; W.S. 1957, § 41-123.

Library references. —

American Law of Mining, 2nd Edition § 133.02 (Matthew Bender).

§ 41-3-907. Application; preferred right of appropriations for stock or domestic use.

Appropriations of underground water for stock or domestic use, the latter being defined as household use and the watering of lawns and gardens for noncommercial family use where the area to be irrigated does not exceed one (1) acre, where the yield or flow does not exceed .056 cubic feet per second or twenty-five (25) gallons per minute, shall have a preferred right over rights for all other uses, regardless of their dates of priority, subject to the provisions of W.S. 41-3-911 , as amended, if an appropriation is for two (2) or more uses, and includes one (1) of the above preferred uses, the preferred use shall be limited to .056 cubic feet per second or twenty-five (25) gallons per minute, and the application shall specify one (1) acre upon which such preferred uses shall be made. Such preferred use shall not include municipal use by any person of water appropriated by a municipality or company, or any instance where water is purchased or held out for sale.

History. Laws 1957, ch. 169, § 2; W.S. 1957, § 41-124; Laws 1969, ch. 213, § 2.

Cited in

Bishop v. City of Casper, 420 P.2d 446, 1966 Wyo. LEXIS 182 (Wyo. 1966).

Law reviews. —

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?” see X Land & Water L. Rev. 119 (1975).

§ 41-3-908. Division advisory committee; appointment; removal; duties; expense allowances.

1. In each of the water divisions of the state, as defined in W.S. 41-3-501 , there shall be established a division advisory committee on underground water. Each committee shall consist of three (3) persons, appointed by the governor, who shall in making such appointments, select persons who, in his opinion, will adequately represent the landowners and water users of the division, the geographical areas of the division and the public interest. The first committee in each division shall consist of one (1) member appointed for a term of two (2) years, one (1) member appointed for a term of four (4) years, and one (1) member appointed for a term of six (6) years. Their successors shall each be appointed for a term of six (6) years. The governor may remove any member of any advisory committee as provided in W.S. 9-1-202 .
2. The duties of the division advisory committee on underground water are:
   1. To call and supervise the election of the members of control area advisory boards;
   2. To assist and advise the state engineer and the board regarding policies that affect the underground water of this state, such assistance and advice to consider both the interests of underground water users and the interests of the general public;
   3. To provide advice and assistance to the state engineer and superintendents in arriving at solutions to underground water problems as they arise within the water division;
   4. To provide advice and assistance to control area advisory boards, particularly in the development of control measures which are recommended to the state engineer for adoption;
   5. To provide underground water users within the division with information relative to the policies and procedures of the state engineer and board which affect the use of underground water.
3. The members of each of the division advisory committees shall receive the same per diem, mileage and expense allowances while attending and traveling to and from control area board meetings and other official business of the committee in the same manner and amount as employees of the state.

History. Laws 1957, ch. 169, § 3; W.S. 1957, § 41-125; Laws 1973, ch. 171, § 2; 1977, ch. 101, § 1; 1987, ch. 175, § 1.

Cross references. —

As to hearings before state engineer and control area advisory board, see § 41-3-932 .

Cited in

Bishop v. City of Casper, 420 P.2d 446, 1966 Wyo. LEXIS 182 (Wyo. 1966).

§ 41-3-909. State engineer; powers generally.

1. In the administration and enforcement of this act [§§ 41-3-901 through 41-3-938 ] and in the effectuation of the policy of the state to conserve its underground water resources, the state engineer is authorized and empowered on advice and consent of the board of control:
   1. To prescribe such rules and regulations as may be necessary or desirable to enable him to efficiently administer this act;
   2. To require such reports from well drillers as may be necessary or desirable;
   3. To require such annual reports from underground water users as may be necessary or desirable;
   4. To make such investigations as may be necessary or desirable, and to cooperate in such investigations with agencies of the United States, agencies of this state or any other state, political subdivision of this state, any public or private corporation, or any association or individual;
   5. To make regulations concerning the spacing, distribution and location of wells in critical areas;
   6. To establish standards for the construction of wells, to work with the division advisory board, governmental subdivisions, and water user organizations to encourage the adoption of local standards of beneficial use and methods of conveyance and application of water designed to conserve and prevent waste of supplies;
   7. To require, whenever practical, all flowing wells to be so capped or equipped that the flow of water can be stopped when the wells are not in use, and to require both flowing and nonflowing wells to be so constructed and maintained as to prevent the waste of underground water either above or below the land surface;
   8. To require the abatement of any condition, or the sealing of any well, responsible for the admission of polluting materials into an underground water supply;
   9. To delegate any of the duties and powers imposed or granted by this act, to the deputy state engineer or to an assistant state engineer, or other qualified member of his staff;
   10. To bring suit to enjoin the construction of illegal wells or the withdrawal or use of water therefrom, or to enforce any of the provisions of this act or of orders issued thereunder, and to intervene in any action or proceeding when it appears that the determination of such action or proceeding may result in the depletion of underground water resources of the state contrary to the policy expressed in this act.

History. Laws 1957, ch. 169, § 25; W.S. 1957, § 41-126; Laws 1969, ch. 213, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Cited in

Bishop v. City of Casper, 420 P.2d 446, 1966 Wyo. LEXIS 182 (Wyo. 1966).

Law reviews. —

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?” see X Land & Water L. Rev. 119 (1975).

For article, “The Challenge of Mine Dewatering to Western Water Law and the New Mexico Response,” see XV Land & Water L. Rev. 445 (1980).

For comment, “Sporhase v. Nebraska ex rel. Douglas: State Control of Water Under the Constraints of the Commerce Clause,” see XVIII Land & Water L. Rev. 513 (1983).

§ 41-3-910. State engineer; power to determine area and boundaries of districts.

The state engineer is authorized and directed to determine the area and boundaries of districts overlying the various aquifers yielding underground waters in this state and to assign to each district a distinctive name or number. He may establish subdistricts when parts of an aquifer require or may require separate regulations from the rest. He may alter the boundaries of such districts and subdistricts at any time. He may establish different districts for different aquifers that overlie each other in whole or in part.

History. Laws 1957, ch. 169, § 4; W.S. 1957, § 41-127.

§ 41-3-911. Authority to order interfering appropriator to cease withdrawals of water; hearing complaints by appropriators.

1. Whenever a well withdrawing water for beneficial purposes shall interfere unreasonably with an adequate well developed solely for domestic or stock uses as defined in W.S. 41-3-907 , whether in a control area or not, the state engineer may, on complaint of the operator of the stock or domestic well, order the interfering appropriator to cease or reduce withdrawals of underground water, unless such appropriator shall furnish at his own expense, sufficient water at the former place of use to meet the need for domestic or stock use. In case of interference between two (2) wells utilizing water for stock or domestic use as defined in W.S. 41-3-907 , the appropriation with the earliest priority shall have the better right.
2. Any appropriator of either surface or underground water may file a written complaint alleging interference with his water right by a junior right. Complaints are to be filed with the state engineer and are to be accompanied by a fee of one hundred dollars ($100.00) to help defray costs of investigation. This section is not applicable to interference between two (2) surface water rights. Upon receiving the complaint and fee, the state engineer shall undertake an investigation to determine if the alleged interference does exist. Following the investigation, the state engineer shall issue a report to all interested parties stating his findings. The report may suggest various means of stopping, rectifying or ameliorating the interference or damage caused thereby.
3. Any interested appropriator who is dissatisfied with the results of the foregoing procedure may proceed under the applicable provisions of the Wyoming Administrative Procedure Act [§§ 16-3-101 through 16-3-115 ]. If a hearing is to be held, it shall be held before the appropriate water division superintendent. The superintendent shall report to the board of control at its next meeting. The board shall issue its order to include findings of fact and conclusions of law.

History. Laws 1957, ch. 169, § 19; W.S. 1957, § 41-128; Laws 1961, ch. 211, § 1; 1969, ch. 213, § 4; 1973, ch. 171, § 2.

This section gives relief only for “an adequate well.” Bishop v. Casper, 420 P.2d 446, 1966 Wyo. LEXIS 182 (Wyo. 1966) (commented on in II Land & Water L. Rev. 469 (1967)).

Complaint must allege that well is adequate. Bishop v. Casper, 420 P.2d 446, 1966 Wyo. LEXIS 182 (Wyo. 1966) (commented on in II Land & Water L. Rev. 469 (1967)).

Otherwise, such complaint is defective. Bishop v. Casper, 420 P.2d 446, 1966 Wyo. LEXIS 182 (Wyo. 1966) (commented on in II Land & Water L. Rev. 469 (1967)).

“Preponderance-of-the-evidence” standard applicable. —

Under subsection (c) and the applicable provisions of the Wyoming Administrative Procedure Act, the standard applicable to an adjudicatory hearing before the board of control, unless otherwise stated, is the “preponderance of the evidence” standard customarily used in civil cases. Willadsen v. Christopulos, 731 P.2d 1181, 1987 Wyo. LEXIS 387 (Wyo. 1987).

Interference not proven. —

There was substantial evidence in the record to support the board's conclusion that a surface water appropriator did not prove the existence of interference, where the groundwater hydrologist who designed the interference test for the investigation testified that pumpage of the well in question did not have a measurable or observable effect on the creek in question, and the petitioner's witnesses primarily based their testimony on the same data used by the state's witnesses and concluded that interference existed. Wyoming State Eng'r v. Willadsen, 792 P.2d 1376, 1990 Wyo. LEXIS 60 (Wyo. 1990).

Law reviews. —

For article, “The Challenge of Mine Dewatering to Western Water Law and the New Mexico Response,” see XV Land & Water L. Rev. 445 (1980).

§ 41-3-912. Control areas; board member districts; designation; redesignation; duty of state engineer; hearings.

1. “Control area” means any underground water district or subdistrict that has been so designated by the board of control. The board of control may designate a control area for the following reasons:
   1. The use of underground water is approaching a use equal to the current recharge rate;
   2. Ground water levels are declining or have declined excessively;
   3. Conflicts between users are occurring or are foreseeable;
   4. The waste of water is occurring or may occur; or
   5. Other conditions exist or may arise that require regulation for the protection of the public interest.
2. Whenever the engineer has information leading him to believe that any underground water district or subdistrict should become a control area, he shall immediately report in writing to the board of control all information known by him with reference to said area.
3. The board of control shall fix a time and place to consider the information supplied by the state engineer and hear any other evidence presented at the time of the hearing. At the conclusion of the hearing, the board of control shall issue an order declaring that the area in question is or is not to be a control area. If the board determines that a control area needs to be created, it shall define the area geographically and stratigraphically. The board of control may designate five (5) board member districts for the purpose of the election of the control area advisory board.
4. On the petition of five (5) persons owning or entitled by public land filing to the possession of land within the control area, or upon the recommendation of the state engineer, the board of control may consider the redesignation of the geographic or stratigraphic boundaries of a control area. If redesignation is considered, the board shall fix a time and place to hear the information supplied by the petitioners, the state engineer or other interested persons. Within ninety (90) days of the hearing, the board shall issue its order. If a control area is redesignated geographically, the board shall determine whether to divide the area into board member districts pursuant to subsection (c) of this section.
5. On the petition of five (5) persons owning or entitled by public land filing to the possession of land within the control area, the control area advisory board shall consider the designation or redesignation of board member districts. If the control area advisory board determines that board member districts should be designated or redesignated, it shall submit its recommendation to the board of control for approval.
6. The action of the board of control in denying at any time a petition or recommendation for redesignation is final and not subject to review.
7. Whenever a control area has been designated or redesignated the state engineer may, without hearings or other proceedings, refuse to grant permits for the drilling of any wells within the control area.

History. Laws 1957, ch. 169, § 5; W.S. 1957, § 41-129; Laws 1973, ch. 171, § 2; 1981, ch. 6, § 1.

Law reviews. —

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?” see X Land & Water L. Rev. 119 (1975).

For article, “The Challenge of Mine Dewatering to Western Water Law and the New Mexico Response,” see XV Land & Water L. Rev. 445 (1980).

For comment, “Sporhase v. Nebraska ex rel. Douglas: State Control of Water Under the Constraints of the Commerce Clause,” see XVIII Land & Water L. Rev. 513 (1983).

§ 41-3-913. Control areas; election of control area advisory board; mileage and expense allowances.

1. When an underground water district or subdistrict is declared to be a control area, when the board of control geographically redesignates a control area or when the board of control approves the recommendation of a control area advisory board that board member districts be designated or redesignated, a control area advisory board shall be created in the manner provided herein. The control area advisory board shall consist of five (5) adults who own land or underground water rights, or who are the officers, officials or members of the board of a corporation which owns land or underground water rights within the control area. The board shall represent the entire control area.
2. The state engineer shall notify the division advisory committee of the division in which the control area is located, of the designation or redesignation of the control area. Within twenty (20) days of notification, the division advisory committee shall select a nominating committee of not less than three (3) persons entitled to vote in the election of the control area advisory board. The nominating committee shall nominate not less than five (5) persons for election to the control area advisory board or, if board member districts have been established, it shall nominate at least one (1) person for election in each district. Within thirty (30) days of its selection, the nominating committee shall report its nominations to the division advisory committee. The division advisory committee shall call an election of members of the control area advisory board, to be held within forty (40) days from the date of the report. The call of the election shall state the time, the place within the control area, the purpose of the election, and the names of persons nominated for election. It shall be published for two (2) consecutive weeks at least twenty (20) days prior to the election in a newspaper of general circulation in each county in which a part of the control area or board member district lies.
3. Every person or corporation owning or, by virtue of public land filing, entitled to possession of land which is a part of the control area is entitled to cast for each member to be elected one (1) vote for each acre of such land as assessed upon the last annual assessment roll of the county in which the land is located, or as shown by the public land filing. A person owning a tract of land of less than one (1) acre is entitled to cast one (1) vote for each member to be elected. The grantee or assignee of the water in or under any described land is entitled to vote, as prescribed herein, in the place of the person or corporation owning or entitled to the possession of the land. However, if board member districts are established, only the votes which derive from within each district shall be cast in the election of the district board member.
4. At the hour and place of the election the division advisory committee shall call the roll of those entitled to vote, and the number of votes each is entitled to. They shall make a record of the qualified voters present, receive all proxies and prescribe the method of canvassing the votes. All proxies shall be in writing and signed by the person entitled to vote. The five (5) persons receiving the highest number of votes, or the person receiving the highest number of votes within each board member district, shall be declared to be elected, regardless of whether or not they have received a majority of votes cast. No election shall be invalid because a majority of the acreage of the control area or board member district was not represented at the election. Two (2) of the members so elected shall serve until one (1) year from the third Tuesday in July of the year following the election, and three (3) of the members so elected shall serve until two (2) years following such date. The division advisory committee shall decide by lot which members shall serve for these terms.
5. During the first fifteen (15) days of July next preceding the expiration of the term of any member an election shall be held to elect members of the control area advisory board. The control area advisory board shall call and conduct the election in the same manner prescribed for the first election. Members elected at any election after the first election shall serve for a term of four (4) years. Whenever the office of any member becomes vacant for any cause, a person to fill the vacancy of the unexpired term shall be appointed by the remaining members. The costs of elections shall be paid by the state engineer’s office.
6. Each member of the control area advisory board shall receive the same per diem, mileage and expense allowances while attending and traveling to and from meetings of the board and other official business of the board in the same manner and amount as employees of the state. No person shall represent more than one (1) board member district during any term of office, and no person shall serve on a control area advisory board for more than two (2) consecutive terms.

History. Laws 1957, ch. 169, § 6; W.S. 1957, § 41-130; Laws 1971, Sp. Sess., ch. 4, § 13; 1973, ch. 171, § 2; ch. 213, § 2; 1977, ch. 102, § 1; 1981, ch. 6, § 1.

§ 41-3-914. Adjudication of waters within control area.

1. After the boundaries of any control area have been determined by the board, the appropriate superintendent shall proceed with the adjudication of unadjudicated wells within the control area. After completing the adjudication, the superintendent shall hold evidence of the adjudication open for inspection by the public at a time and place to be fixed by the superintendent, and notice thereof shall be published in two (2) issues of a newspaper of general circulation in the county or counties where the control area is situated.
2. If any well owner, lessee or user within a control area refuses to adjudicate a well, or supply the necessary information to permit adjudication of any well, the superintendent may tag and lock the pump or well to prevent use of water therefrom. The penalty for interfering with the tag or lock on a well is as provided in W.S. 41-3-616 . The use of water from a well so tagged and locked is prima facie evidence that the well owner, lessee or user has violated the provisions of this section.
3. The taking of proof, filing objections or contests, giving notices, conducting of hearings, making adjudications of water rights, determining of priorities as between appropriators, issuing of certificate of appropriation, and taking appeals shall, insofar as applicable, and not in conflict with the provisions of this act [§§ 41-3-901 through 41-3-938 ] be governed by the provisions of W.S. 41-4-101 through 41-4-207 and 41-4-211 through 41-4-517 .
4. At the first regular meeting of the board after completion of such proof and advertisement, the board shall cause to be entered in the records of its office an order showing the priorities of right to the use of water in the control area, the amount of appropriation of the parties claiming water therefrom, the character and kind of use for which the appropriation is made, and the places or points of use. The secretary of the board shall issue to each person represented in the determination, a certificate of appropriation signed by the president of the board and attested under seal of the secretary of the board which shall state the name and post-office address of the appropriator, the priority date of the appropriation, the amount of water appropriated, the use to which the water has been applied and, if the appropriation is for irrigation, a description of the legal subdivision of land to which the water is applied, or the place of use if the appropriation is not being used for irrigation. The certificate shall be transmitted by certified mail to the county clerk of the county in which the appropriation has been made and the county clerk shall, upon receipt of the proper fee, record the same and thereupon immediately transmit the certificate to the appropriator. At the time of the submission of final proof of appropriation before the state engineer or superintendent of a water division, a fee not to exceed one hundred dollars ($100.00) shall be collected, which shall be used for advertising the proof of appropriation and recording the certificate. The priority of appropriation shall be the determining factor in adjudicating underground water; the person first making the appropriation being first entitled to the use of the underground water, except as modified by W.S. 41-3-933 .

History. Laws 1957, ch. 169, § 15; W.S. 1957, § 41-131; Laws 1973, ch. 171, § 2; 1974, ch. 16, § 2; 1993, ch. 123, § 1; 2005, ch. 82, § 2; 2017 ch. 99, § 1, effective July 1, 2017.

The 2005 amendment, effective July 1, 2005, substituted “W.S. 41-3-616 ” for “W.S. 41-3-938 ” in (b).

The 2017 amendment , effective July 1, 2017, in (d), substituted “one hundred dollars ($100.00)” for “fifty dollars ($50.00).”

Law reviews. —

For article, “Underground Water,” see 4 Wyo. L.J. 193.

§ 41-3-915. Control areas; hearing to determine adequacy of water for all appropriators; corrective controls generally; agreements in lieu of controls.

1. After designation of an area as a control area by the board, the state engineer may temporarily adopt any of the corrective controls provided for by this section, where it appears that immediate regulation is required. After the well adjudication procedure has been completed, the state engineer may, on his own motion, and shall on the petition of twenty (20) appropriators or of one-tenth of the appropriators of water from a control area, cause a hearing to be held before the state engineer and the control area advisory board to determine whether the underground water in the area is adequate for the needs of all appropriators of underground water in such area. Public notice of the time and place of the hearing shall be published once in a newspaper circulated in the area not more than thirty (30) days before the time set for the meeting. If the state engineer finds after the hearing, and after receiving the advice of the control area advisory board, that the underground water in the control area is insufficient for all of the appropriators, he may by order adopt one (1) or more of the following corrective controls:
   1. He may close the controlled area to any further appropriation of underground water, in which event he shall thereafter refuse to grant any applications for a permit to appropriate underground water in that area, provided, that such area may be reopened to appropriations at any time the state engineer shall find on the basis of additional evidence that there is unappropriated water in the area, in which event the state engineer shall reconsider all applications for permits refused on the grounds of the order closing the area;
   2. He may determine the permissible total withdrawal of underground water in the control area for each day, month or year, and, insofar as may be reasonably done, he shall apportion such permissible total withdrawal among the appropriators holding valid rights to the underground water in the control area in accordance with the relative dates of priority of such rights;
   3. If he finds that withdrawals by junior appropriators have a material and adverse effect upon the supply available for and needed by senior appropriators, he may order such junior appropriators to cease or reduce withdrawals forthwith;
   4. If he finds that cessation or reduction of withdrawals by junior appropriators will not result in proportionate benefits to senior appropriators, he may require and specify a system of rotation of use of underground water in the controlled area;
   5. He may institute well spacing requirements if permits are granted to develop new wells.
2. The state engineer shall cause a copy of any such order to be served upon each person affected thereby in the manner provided for service of process in civil actions.
3. Appropriators of underground water from a control area may agree to any method or scheme of control of withdrawals, well spacing, apportionment, rotation or proration of the common supply of underground water. The state engineer shall encourage and promote such agreements and supply the parties with information and advice. When the state engineer, with the advice of the control area advisory board, shall find that any such agreement, executed in writing and filed in his office, is consistent with the intent, purposes and requirements of this act [§§ 41-3-901 through 41-3-938 ], and would not be detrimental to the public interest or to the rights of other persons not parties to the agreement, he shall approve the agreement, and thereafter such agreement shall control, until terminated as hereinafter provided, in lieu of any order issued pursuant to subsection (a) of this section.
4. Any agreement approved by the state engineer may be terminated by the terms of the agreement, by the consent of the parties, or by order of the state engineer if he finds, after investigation and a public hearing before the control area advisory board, held at least two (2) weeks after one (1) published notice in a newspaper of general circulation in each county in which a part of the control area lies, that the agreement is not being substantially complied with by the parties, or that changed conditions have made the agreement inequitable, or that the continuance of the agreement is no longer consistent with the intent, purpose and requirements of this act, or is a detriment to the public interest or to the rights of other persons not parties to the agreement.

History. Laws 1957, ch. 169, § 17; W.S. 1957, § 41-132; Laws 1973, ch. 171, § 2.

Law reviews. —

For case note, “Water Law — A Postscript to the Mutual Prescription Doctrine — City of Los Angeles v. City of San Fernando, 14 Cal. 3d 199, 537 P.2d 1250, 1975 Cal. LEXIS 286, 123 Cal. Rptr. 1 (1975),” see XI Land & Water L. Rev. 131 (1976).

§ 41-3-916. Priority of rights when 1 source of supply.

Where underground waters in different aquifers are so interconnected as to constitute in fact one source of supply, or where underground waters and the waters of surface streams are so interconnected as to constitute in fact one source of supply, priorities of rights to the use of all such interconnected waters shall be correlated and such single schedule of priorities shall relate to the whole common water supply. The state engineer may by order adopt any of the corrective controls specified in W.S. 41-3-915 .

History. Laws 1957, ch. 169, § 18; W.S. 1957, § 41-133.

Reserved water doctrine does not extend to groundwater. In re General Adjudication of All Rights to Use Water in Big Horn River Sys., 753 P.2d 76, 1988 Wyo. LEXIS 26 (Wyo. 1988), aff'd, 492 U.S. 406, 109 S. Ct. 2994, 106 L. Ed. 2d 342, 1989 U.S. LEXIS 3173 (U.S. 1989), cert. denied, 492 U.S. 926, 109 S. Ct. 3265, 106 L. Ed. 2d 610, 1989 U.S. LEXIS 3337 (U.S. 1989), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

§ 41-3-917. Change of location of well without loss of priority; appeal from action of state board of control or state engineer.

1. An appropriator of underground water may change the location of his well to a point within the same aquifer in the vicinity of the original location, without loss of priority, by securing approval of the state board of control if the groundwater right has been adjudicated or if the groundwater right has not been adjudicated but the water has been applied to beneficial use. In cases involving domestic or stock water wells which are not adjudicated but the water has been applied to beneficial use, the state engineer may approve a change of location. If the right is not adjudicated and the water has not been applied to beneficial use, approval for the change in location may be granted by the state engineer. No petition shall be granted if the rights of other appropriators shall be injuriously affected thereby. No petition granted shall increase the total amount of the appropriation of water set forth in the original permit. The state board of control and the state engineer may make such regulations as may be necessary to carry out the provisions of this section. The state engineer may approve a change of well location even if water has not been applied to a beneficial use.
2. A decision by the state engineer granting or denying a petition to change the location of an unadjudicated right under this section may be appealed to the board of control. An appeal may be taken to the district court pursuant to W.S. 16-3-101 through 16-3-115 from an order of the board of control:
   1. Affirming or reversing a decision of the state engineer appealed to the board under this subsection; or
   2. Granting or denying a petition to change the location of an adjudicated right under this section.

History. Laws 1957, ch. 169, § 21; W.S. 1957, § 41-134; Laws 1965, ch. 137, § 1; 1985, ch. 169, § 1.

This section does not authorize partial transfer of adjudicated underground water right of well. Town of Pine Bluffs v. State Bd. of Control, 647 P.2d 1365, 1982 Wyo. LEXIS 354 (Wyo. 1982).

§ 41-3-918. Appeals.

Any person aggrieved by an order of the board or of the state engineer concerning underground water, or by their or his failure to act, may appeal in the manner provided by W.S. 41-4-517 , and the Wyoming Administrative Procedure Act [§§ 16-3-101 through 16-3-115 ].

History. Laws 1957, ch. 169, § 23; W.S. 1957, § 41-135; Laws 1973, ch. 171, § 2.

Cross references. —

As to judicial review of administrative action, see Rule 12 W.R.A.P.

Wyoming Administrative Procedure Act. —

See § 16-3-101(a), (b)(xi).

§ 41-3-919. Prohibited acts; penalty for violation.

Any person who withdraws underground water or who fails to stop or reduce the flow of underground water in violation of any order of the state engineer made pursuant to this act [§§ 41-3-901 through 41-3-938 ], or any person who does not have a permit, certificate or vested right to appropriate underground water who shall withdraw underground water from any well other than a well for stock or domestic purposes as defined in W.S. 41-3-907 , is guilty of a misdemeanor and upon conviction shall be punished under W.S. 41-3-616 .

History. Laws 1957, ch. 169, § 26; W.S. 1957, § 41-137; Laws 1969, ch. 213, § 5; 1979, ch. 88, § 1; 2005, ch. 82, § 2.

The 2005 amendment, effective July 1, 2005, substituted “W.S. 41-3-616 ” for “W.S. 41-3-614 .”

Law reviews. —

For article, “The Challenge of Mine Dewatering to Western Water Law and the New Mexico Response,” see XV Land & Water L. Rev. 445 (1980).

§ 41-3-930. Application; who required to file; filing; contents; use of water from existing well; statement of claim.

1. Any person who intends to acquire the right to beneficial use of any underground water in the state of Wyoming, shall, before commencing construction of any well or other means of obtaining underground water or performing any work in connection with construction or proposed appropriation of underground water or any manner utilizing the water for beneficial purposes, file with the state engineer an application for a permit to make the appropriation and shall not proceed with any construction or work until a permit is granted by the state engineer, provided, that whenever a bore hole constructed for mineral exploration, oil and gas exploration, stratigraphic information or any other purpose not related to groundwater development shall be found to be suitable for the withdrawal of underground water, application shall be filed with and approved by the state engineer before water from the bore hole is beneficially utilized. The state engineer may authorize the construction and use of multiple wells for industrial purposes for in situ mining, dewatering or use for pollution control or remediation with a single permit if the groundwater to be developed by the proposed appropriation is to be used for a specific purpose within the department of environmental quality permitted boundary and served from a single source of supply. The application shall contain the name and post-office address of applicant or applicants, a detailed description of the proposed use, the location by legal subdivision of the proposed well or other means of obtaining underground water, the estimated depth of the proposed well, the quantity of water proposed to be withdrawn and beneficially utilized in gallons per minute and acre-feet per calendar year, the location by legal subdivision of the area or point of use shall be provided, and such other information as the state engineer may require.
2. In addition to providing the information required in subsection (a) of this section, applications for permits to appropriate groundwater, geothermal or otherwise, located within fifteen (15) miles of the boundary of Yellowstone National Park shall be accompanied by a written report prepared by a qualified professional and containing such geologic, hydrologic and other information necessary to show that the proposed development will not impair or produce an injurious effect on the hydrothermal system or hydrothermal features located within the boundaries of Yellowstone National Park. The state engineer shall consider all the information provided by the applicant and any other information available to him or necessary to make an informed decision before acting on the application. If upon review of the submitted information or other records available to him, the state engineer determines that the applicant has not shown that the proposed development will not impair or produce an injurious effect upon the hydrothermal features located within the boundaries of Yellowstone National Park, the state engineer shall deny the application for permit. Wells for domestic and stock purposes as defined in W.S. 41-3-907 will be exempt from the requirements of this section.
3. Nothing in this section shall be construed so as to interfere with the right of any person to use water from any existing well constructed prior to May 24, 1969 where the water is economically and beneficially used for stock or domestic use as provided by W.S. 41-3-907 , and the uses from the well are hereby declared to constitute a vested right, provided, that the owner of the water right must have registered the right prior to December 31, 1972. If the water right was not registered prior to December 31, 1972 an application shall be filed in accordance with the provisions of this section to obtain a water right and the applicant shall receive, as the water right priority date, the date the application is received by the state engineer.

History. Laws 1957, ch. 169, § 7; W.S. 1957, § 41-138; Laws 1969, ch. 213, § 6; 1991, ch. 226, § 1; 1995, ch. 206, § 1; 2014 ch. 24, § 1, effective March 4, 2014.

The 2014 amendment , added the present second sentence in (a).

Laws 2014, ch. 24, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8 of the Wyo. Const. Approved March 4, 2014.

Law reviews. —

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?” see X Land & Water L. Rev. 119 (1975).

For comment, “The Idaho and Montana Procedures for Obtaining Water Use Permits — Possible Sources for Improvement of Wyoming Law,” see X Land & Water L. Rev. 435 (1975).

For article, “The Challenge of Mine Dewatering to Western Water Law and the New Mexico Response,” see XV Land & Water L. Rev. 445 (1980).

Am. Jur. 2d, ALR and C.J.S. references. —

Well drilling under contract, 90 ALR2d 1346.

§ 41-3-931. Application; when granted generally; denial subject to review; defects and corrections generally; cancellation.

An application for a permit for a well in any areas not designated as a critical area shall be granted as a matter of course, if the proposed use is beneficial and, if the state engineer finds that the proposed means of diversion and construction are adequate. If the state engineer finds that to grant the application as a matter of course, would not be in public’s water interest, then he may deny the application subject to review at the next meeting of the state board of control. If the state engineer shall find that the proposed means of diversion or construction are inadequate, or if the application is otherwise defective, he may return the application for correction. If such correction is not made within ninety (90) days, the state engineer may cancel the application.

History. Laws 1957, ch. 169, § 8; W.S. 1957, § 41-139; Laws 1969, ch. 100, § 1.

Law reviews. —

For comment, “Determining Quantity in Irrigation Appropriations,” see IV Land & Water L. Rev. 501 (1969).

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?” see X Land & Water L. Rev. 119 (1975).

For article, “The Challenge of Mine Dewatering to Western Water Law and the New Mexico Response,” see XV Land & Water L. Rev. 445 (1980).

§ 41-3-932. Public notice of application or petition; hearing before state engineer and control area advisory board; cost.

1. Upon the filing of a petition to amend an existing water right or an application to appropriate underground water for any use other than domestic, stockwatering or miscellaneous purposes where the quantity of water to be appropriated is twenty-five (25) gallons of water per minute or less, from an area designated as a control area by the state board of control, the state engineer shall cause to be published, at applicant’s expense, in a newspaper of general circulation in the county wherein the proposed well or requested change will be located, for at least once a week for three (3) consecutive weeks, a notice of the filing of the application or requested changes and that objections to the granting thereof may be filed within ten (10) days after the last publication of the notice, on the grounds that there is no unappropriated water in the proposed source of supply or that the granting of the application would be detrimental to the public interest. If objections are filed within the time specified in the notice, the state engineer shall set a date for a hearing on the application or requested changes and the objections thereto and shall notify the applicant or petitioner and the objectors thereof. If the applicant or petitioner questions the standing of the objector, the state engineer shall make written findings of fact on the issue and may overrule the objection on that basis. The hearing shall be before the control area advisory board and the state engineer, and shall be held in an appropriate place within the county in which the proposed well or requested change is to be located. The state engineer, for good cause, may impose costs of the hearing proportionally upon the applicant or petitioner and the objectors. The hearing under this subsection shall be a contested case hearing conducted in conformance with and subject to the provisions of the Wyoming Administrative Procedure Act. A decision by the state engineer granting or denying an application or petition under this subsection may be appealed to the board of control within thirty (30) days of the date of receipt of notice of the decision. Upon appeal and based on the contested case record and upon additional evidence, if any, taken at the direction of the board, the board may affirm, modify or reverse the findings of the state engineer. An appeal from an order of the board of control may be taken to the district court pursuant to the Wyoming Administrative Procedure Act.
2. If no objections are filed against the application or petition under subsection (a) of this section but the state engineer is of the opinion that the application or petition may be detrimental to the public interest, or desires to obtain the recommendations of the control area advisory board, he shall set a date for a public hearing on the application or petition and shall notify the applicant or petitioner of the time and place thereof. Not less than fifteen (15) days prior to the hearing the state engineer shall cause notice of the hearing to be published, at the expense of the applicant or petitioner, in at least one (1) newspaper having general circulation in the county in which the proposed well or requested change is to be located. The state engineer shall notify the applicant or petitioner of the time and place of the hearing. The public hearing shall be held before the control area advisory board and the state engineer in an appropriate place in the county in which the proposed well or requested change is to be located. In making any determination required by this section, the state engineer may rely upon records and information on file in his office or in the office of the board of control. In the event a hearing is held he shall make known the records and information upon which he relies at least fifteen (15) days before the hearing. A decision by the state engineer under this subsection may be appealed by the applicant or petitioner to the board of control within thirty (30) days of the date of receipt of notice of the decision. Upon appeal the board of control shall conduct a contested case hearing in accordance with its rules and regulations and the Wyoming Administrative Procedure Act. An appeal from an order of the board of control may be taken to the district court pursuant to the Wyoming Administrative Procedure Act.
3. The application or petition shall be granted and the permit issued only if the state engineer finds, after receiving the advice of the control area advisory board, that there are unappropriated waters in the proposed source, that the proposed means of diversion or construction is adequate, that the location of the proposed well or other work does not conflict with any well spacing or well distribution regulation, and that the proposed use would not be detrimental to the public interest. If the state engineer finds that the application or petition is incomplete or otherwise defective, he shall return the application or petition for correction. If the correction is not made within ninety (90) days, the application or petition shall be rejected.
4. Repealed by Laws 2014, ch. 90, §  2.
5. A petition to amend an existing water right which originated with the board of control may be subject to additional action by the board of control. Any petition to amend an existing water right granted by the state engineer pursuant to this section, if that decision is not appealed, shall be returned to the board of control for any additional action that may be required by law.

History. Laws 1957, ch. 169, § 9; W.S. 1957, § 41-140; Laws 1969, ch. 100, § 2; 1973, ch. 171, § 2; 1984, ch. 22, § 1; 1991, ch. 179, § 1; 2014 ch. 90, §§ 1, 2, effective July 1, 2014.

The 2014 amendment, effective July 1, 2014, in the fourth sentence of (a), deleted “or state board of control”; added the fifth through ninth sentences; in the first sentence of (b), inserted “under subsection (a) of this section,” inserted “public”; added the present second and third sentences; in the fourth sentence, inserted “public,” deleted “shall be open to the public, and”; in the fifth sentence, added “of control” at the end; in the sixth sentence, deleted “to the parties,” and added “at least fifteen (15) days before the hearing” to the end; deleted the former seventh sentence which read: “The state engineer, for good cause, may impose costs of the hearing proportionally upon the applicant or petitioner and the objecters”; added the the present seventh through ninth sentences; and added (e).

Wyoming Administrative Procedure Act. —

See § 16-3-101(a), (b)(xi).

Law reviews. —

For article, “Industrial Siting Legislation: The Wyoming Industrial Development Information and Siting Act — Advance or Retreat?” see XI Land & Water L. Rev. 27 (1976).

§ 41-3-933. Express conditions limiting rights of appropriator; additional conditions.

It is an express condition of each underground water permit that the right of the appropriator does not include the right to have the water level or artesian pressure at the appropriator’s point of diversion maintained at any level or pressure higher than that required for maximum beneficial use of the water in the source of supply. The state engineer may issue any permits subject to such conditions as he may find to be in the public interest.

History. Laws 1957, ch. 169, § 10; W.S. 1957, § 41-141; Laws 1973, ch. 171, § 2.

§ 41-3-934. Time limits to complete construction; extensions; cancellation generally.

If the permit is granted, the applicant shall complete the construction and apply the water to beneficial use before the date specified in the conditions of approval, which shall not be more than three (3) years after the date of approval. The state engineer may extend the period or cancel the permit in accordance with the procedures set forth in W.S. 41-4-506 .

History. Laws 1957, ch. 169, § 11; W.S. 1957, § 41-142; Laws 1959, ch. 22, § 1; 1973, ch. 171, § 2; 1995, ch. 102, § 1.

§ 41-3-935. Adjudication procedure.

1. Any person constructing any well under a permit shall, within thirty (30) days after the completion or abandonment of such work, report to the state engineer the data required relating to such well, on forms furnished by the state engineer. A well shall be considered complete when it is possible to install a pump and pump water. In the case of an artesian well, completion is the time when the drill rig is moved off of the drilling site.
2. Adjudication of all ground water rights except stock watering and domestic uses of ground water referenced in W.S. 41-3-907 shall proceed upon completion of the work according to the terms of the permit and the recording on forms furnished by the state engineer of such information as is deemed necessary concerning the works, and the filing of a map signed by a Wyoming licensed professional engineer or land surveyor, showing the location of the well and the point or points of use. The state engineer or his authorized representative shall inspect the works, the lands irrigated or other uses being made of the water upon receipt of the map. The adjudication of stock watering and domestic uses of ground water referenced in W.S. 41-3-907 may be initiated by the state engineer or the appropriator of record and will not require the filing of a map signed by a Wyoming licensed professional engineer or land surveyor, showing the location of the well and the points and areas of use or require the inspection by the state engineer or his authorized representative of the works, the lands irrigated or other uses being made of the water unless, in the discretion of the state engineer, such procedures are deemed necessary and appropriate. At this time the board may consider for adjudication the ground water rights upon proof of beneficial use being submitted by the appropriator.
3. Adjudication shall proceed in the same manner prescribed for the adjudication of surface water appropriations once the state engineer or his authorized representative has reported his findings to the board. A ground water appropriation attaches to the land for irrigation, or for such other purposes or object for which it was acquired.
4. In the interest of an orderly adjudication procedure for ground water, the state engineer, with the concurrence of the board, may order adjudication of any ground water appropriations in the state. Upon one (1) year notice, any appropriator whose appropriation is to be adjudicated shall furnish the state engineer all of the documents mentioned in subsection (b) of this section. If any appropriator refuses to supply any of this information, the superintendent may tag and lock the well. Any appropriator that interferes with the tag or lock is subject to the same penalty as provided in W.S. 41-3-938 . Use of water well so tagged or locked is prima facie evidence of such interference.

History. Laws 1957, ch. 169, § 12; W.S. 1957, § 41-143; Laws 1973, ch. 171, § 2; 1992, ch. 43, § 6.

§ 41-3-936. Priority of appropriation.

The priority of appropriation of underground water obtained prior to April 1, 1947, shall date from time of completion of the well. The priority of appropriation of underground water obtained subsequent to April 1, 1947, and prior to March 1, 1958, shall date from the filing of registration in the state engineer’s office. The priority of appropriation of underground water obtained on or subsequent to March 1, 1958, shall date from the filing of the application for permit in the state engineer’s office. Priority of appropriation of underground water for stock or domestic purposes, as defined in W.S. 41-3-907 , shall date from the time of completion of the well if properly registered with the state engineer prior to December 31, 1972. If registered with the state engineer subsequent to December 31, 1972, the priority shall date from the filing or registration in the state engineer’s office.

History. Laws 1957, ch. 169, § 16; W.S. 1957, § 41-144; Laws 1969, ch. 213, § 7.

Law reviews. —

For article, “Industrial Siting Legislation: The Wyoming Industrial Development Information and Siting Act — Advance or Retreat?” see XI Land & Water L. Rev. 27 (1976).

§ 41-3-937. Cancellation or suspension of permits or certificates.

Whenever, after notice to and opportunity to be heard, the state engineer finds that the holder of any permit is willfully violating or has willfully violated any provision of such permit or any provision of this act or of any order issued pursuant to this act, the state engineer may cancel or suspend such permit or impose conditions on the future use thereof to prevent such violation, pursuant to W.S. 41-3-616(c). Whenever, after notice to and opportunity to be heard, the board of control finds that the holder of any certificate of registration or certificate of appropriation is willfully violating or has willfully violated any provision of such certificate or any provision of this act or of any order issued pursuant to this act, the board of control may cancel or suspend such certificate or impose conditions on the future use thereof to prevent such violation, pursuant to W.S. 41-3-616(d).

History. Laws 1957, ch. 169, § 22; W.S. 1957, § 41-146; Laws 2005, ch. 82, § 2.

The 2005 amendment, effective July 1, 2005, twice added provisions that conditions could be imposed as provided by § 41-3-616 for specified violations; and made stylistic changes.

§ 41-3-938. Penalty.

Any person who drills, digs or constructs any works for the securing of underground water without having obtained a permit is guilty of a misdemeanor and upon conviction shall be punished under W.S. 41-3-616 .

History. Laws 1957, ch. 169, § 14; W.S. 1957, § 41-147; Laws 1969, ch. 213, § 8; 1979, ch. 88, § 1; 2005, ch. 82, § 2.

Cross references. —

As to exemptions for use of water for domestic and stock use, see § 41-3-907 .

The 2005 amendment, effective July 1, 2005, substituted “W.S. 41-3-616 ” for “W.S. 41-3-614 .”

§ 41-3-1001. Waters stored for instream flows a beneficial use of water; natural stream flows allowed for instream flows.

1. The storage of water in any drainage in Wyoming for the purpose of providing a recreational pool or the release of water for instream flows to establish or maintain new or existing fisheries is a beneficial use of water subject to normal stream loss.
2. Unappropriated water flowing in any stream or drainage in Wyoming may be appropriated for instream flows to maintain or improve existing fisheries and declared a beneficial use of water on a case by case basis by the state engineer if such use does not impair or diminish the rights of any other appropriator in Wyoming.
3. Waters used for the purpose of providing instream flows under subsection (a) of this section shall be the minimum flow necessary to establish or maintain fisheries.
4. Waters used for the purpose of providing instream flows under subsection (b) of this section shall be the minimum flow necessary to maintain or improve existing fisheries.

History. Laws 1986, ch. 76, § 1.

§ 41-3-1002. Instream flows to be by stream segment; waters for instream flows may be sold, transferred or otherwise conveyed under certain restrictions; ownership restricted.

1. All waters used for the purpose of providing instream flows shall be applied only to that segment of the stream for which they are granted. The stream segment and the determination of a minimum amount of water required for instream flow purposes shall be defined specifically.
2. After waters allowed for instream flows have passed through the specific stream segment, all rights to those instream flow waters are relinquished, and the water shall be available for reappropriation, diversion and beneficial use.
3. Storage water appropriated for the purpose of providing instream flows in specified stream segments or existing water rights which are converted to instream flow under provisions of W.S. 41-3-1007 of this act may later be sold, transferred or otherwise conveyed to any other purpose pursuant to the requirements of W.S. 41-3-104 , except that the board of control shall require that an advertised public hearing be held.
4. Any person may divert and appropriate, as provided by law, instream flow waters for any beneficial use other than for instream flows at the following places:
   1. Within one (1) mile upstream from any point where the instream flows cross the Wyoming state line;
   2. Within one (1) mile upstream from any point where the instream flows enter the main stem of the North Platte River;
   3. Within one (1) mile upstream from any point where the instream flows enter the Big Horn Lake;
   4. Within one (1) mile upstream from any point where the instream flows enter the Flaming Gorge Reservoir;
   5. Within one (1) mile upstream from any point where the instream flows enter the Palisades Reservoir.
5. No person other than the state of Wyoming shall own any instream flow water right.

History. Laws 1986, ch. 76, § 1.

Law reviews. —

For article, “Waist Deep in the Big Muddy: Property Rights, Public Values, and Instream Waters,” see XXVI Land & Water L. Rev. 535 (1991).

§ 41-3-1003. Game and fish commission; construction of measuring devices; recommendations; permits; fees and costs.

1. The game and fish commission shall construct any measuring device the state engineer considers necessary for the administration of an instream flow right.
2. The state game and fish commission may report to the water development commission annually those specific segments of stream which the game and fish commission considers to have the most critical need for instream flows. The game and fish commission shall identify the points on the stream at which the need for instream flows begins and ends, the time of year when the flows are most critical and a detailed description of the minimum amount of water necessary to provide adequate instream flows.
3. The water development commission shall file applications in the name of the state of Wyoming for permits to appropriate water for instream flows in those segments of stream recommended by the game and fish commission. The state engineer shall not grant any permits to appropriate or store water for instream flows prior to the completion of the study provided by W.S. 41-3-1004 or prior to the hearing required by W.S. 41-3-1006 . Fees and costs of the commission associated with permit applications and adjudication of water rights shall be borne by the game and fish commission.

History. Laws 1986, ch. 76, § 1; 1987, ch. 50, § 1.

§ 41-3-1004. Water development commission to determine storage feasibility; report to the game and fish commission and the legislature.

1. Immediately after permits have been applied for under W.S. 41-3-1003(c), the water development commission shall determine the feasibility of providing instream flows for the recommended segments of streams from unappropriated direct flows or from existing storage facilities or from new facilities. The feasibility study shall include a determination of water necessary to maintain or improve existing fisheries for water rights under W.S. 41-3-1001(b) or of water necessary to provide fisheries for water rights under W.S. 41-3-1001(a). The feasibility study shall also include the availability of storage sites, the estimated cost of providing any required storage and such other findings and conclusions as the water development commission deems appropriate. The cost of any consultant and any associated costs that the water development commission determines are necessary to complete a feasibility study under this section shall be borne by the game and fish commission. The water development commission shall consult with the game and fish commission prior to entering into any contract related to a feasibility study under this section.
2. The water development commission shall make a report to the game and fish commission and the legislature outlining their findings.
3. Repealed by Laws 1987, ch. 50, § 2.

History. Laws 1986, ch. 76, § 1; 1987, ch. 50, § 2; 2018 ch. 34, § 1, effective July 1, 2018.

The 2018 amendment, effective July 1, 2018, in (a), added the last two sentences.

§ 41-3-1005. Approval of storage project.

If the water development commission determines that storage of water to provide instream flows is feasible and in the interest of the state of Wyoming, it shall request authority from the legislature to proceed with the design and construction of storage facilities and the storage of sufficient water for such purposes. The costs of the project may be shared with other water users benefiting therefrom, or paid solely from funds appropriated from the water development account, or otherwise as the legislature directs.

History. Laws 1986, ch. 76, § 1.

§ 41-3-1006. Appropriation of unappropriated waters for direct instream flows.

1. Any application for a permit to appropriate direct flow waters for the purpose of providing instream flows shall be by stream segment, as defined in W.S. 41-3-1002 .
2. If the water development commission, under W.S. 41-3-1004 , determines that storage of water for the purpose of providing instream flows is not feasible but that appropriation of direct flow water appears feasible, the state engineer shall act on applications for permits to appropriate water filed under W.S. 41-3-1003(c) in the name of the state of Wyoming.
3. Subsequent to submission of an application for an instream flow appropriation, the game and fish commission shall conduct relevant studies on the proposal.
4. The applicant for an instream flow water right shall publish a notice of the application and hearing in a newspaper of general circulation in the area near the proposed reservoir site or stream segment, once each week for at least two (2) consecutive weeks prior to the hearing provided by subsection (e) of this section which notice shall briefly describe the application.
5. Prior to granting or denying the application, the state engineer shall conduct any studies as are deemed necessary to evaluate the proposed instream flow and the necessary amount of water to maintain existing fisheries and shall hold a public hearing. At the public hearing, the game and fish commission shall present its studies and any other interested parties shall present views on the proposed instream flow appropriation. The state engineer may place a condition on the permit, if one is granted, requiring a review of the continuation of the permit as an instream flow appropriation.
6. If an application for an instream flow appropriation is approved by the state engineer, it shall be deemed that work has been commenced and completed and beneficial use made thirty (30) days after the date of approval for purposes of W.S. 41-4-506 and proof of appropriation shall not be submitted until three (3) years thereafter.
7. The state engineer shall not issue an instream flow permit where the instream flow right would be included as a portion of the consumptive share of water allocated to the state of Wyoming under any interstate compact or United States supreme court decree.
8. The amount of water appropriated for instream flow in each river basin in Wyoming shall not result in more water leaving the state than the amount of water that is allocated by interstate compact or United States supreme court decree for downstream uses outside of Wyoming.

History. Laws 1986, ch. 76, § 1.

§ 41-3-1007. Acquisition of existing rights for instream flow purposes.

1. The state of Wyoming may acquire any existing water rights in streams of Wyoming by transfer or gift for the purpose of providing instream flows, provided that a change in use of the right acquired shall be in accordance with W.S. 41-3-104 . Any right acquired and changed shall be in the name of the state of Wyoming and shall be administered by the state engineer and the board of control, who shall insure that the use of water for instream flows shall not interfere with existing water rights or impair the value of such rights or related property. The game and fish commission shall act as a petitioner in a petition for change in use under this section.
2. Any such water rights acquired and changed shall be limited to a specified stream segment by the board of control with priority date intact.

History. Laws 1986, ch. 76, § 1.

§ 41-3-1008. Regulation of streams.

1. The game and fish commission shall report to the water development commission the need to regulate a stream to protect the priority of an instream flow right. The report shall include information establishing present or future damage to the fishery if the stream is not regulated. The commission, on the next working day, shall submit the report to the state engineer and call for stream regulation. The state engineer shall not regulate the stream to protect the instream flow right:
   1. Unless present or future injury to the fishery has been shown;
   2. If the call for regulation is a futile call; or
   3. If the call for regulation will impair senior water rights.

History. Laws 1986, ch. 76, § 1; 1987, ch. 50, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-3-1009. Statement regarding condemnation and impairment of existing water rights.

This act [§§ 41-3-1001 through 41-3-1014 ] does not grant, nor shall it operate or be so construed to grant the power of condemnation to the game and fish department for acquisition of existing water rights for the purpose of providing instream flows, nor shall it operate or be so construed as to impair or diminish the value of or divest existing water rights.

History. Laws 1986, ch. 76, § 1.

§ 41-3-1010. Litigation costs.

If any other appropriator in a drainage where waters are allowed for instream flows proves in district court that his right to use appropriated waters has been impaired or diminished by the allowance for instream flows, the costs of litigation, including reasonable attorney fees, shall be borne by the holder of the instream flow right.

History. Laws 1986, ch. 76, § 1.

§ 41-3-1011. Abandonment.

No right to water for the purposes of providing instream flow may be acquired through the process of abandonment nor shall any beneficiary of instream flow rights granted under this act [§§ 41-3-1001 through 41-3-1014 ] be qualified under W.S. 41-3-401 and 41-3-402 to file for abandonment.

History. Laws 1986, ch. 76, § 1.

§ 41-3-1012. Ingress and egress.

Nothing in this act [§§ 41-3-1001 through 41-3-1014 ] shall grant, nor shall it be construed to grant the right of ingress or egress through or upon private property to reach streams where instream flows are maintained, nor shall it operate or be so construed as to grant any right of eminent domain to acquire the right of ingress or egress through private property to any waters so maintained.

History. Laws 1986, ch. 76, § 1.

§ 41-3-1013. Condemnation for municipal water purposes.

Notwithstanding W.S. 1-26-505 , a city or town may condemn any portion of a water right authorized and acquired under this act [§§ 41-3-1001 through 41-3-1014 ] for municipal water purposes in the manner provided by law.

History. Laws 1986, ch. 76, § 1.

§ 41-3-1014. Interstate compact and United States supreme court decree.

Nothing in this act [§§ 41-3-1001 through 41-3-1014 ] shall be construed to supersede, impair or abrogate the right of the state of Wyoming to fully utilize and appropriate to consumptive beneficial use, those quantities of water allocated to the state of Wyoming by interstate compact or United States supreme court decree.

History. Laws 1986, ch. 76, § 1.

§ 41-4-101. Legal standard of measurement.

A cubic foot of water per second of time shall be the legal standard for the measurement of water in this state, both for the purpose of determining the flow of water in natural streams, and for the purpose of distributing water therefrom.

History. Laws 1890-91, ch. 8, § 38; R.S. 1899, § 968; C.S. 1910, § 742; C.S. 1920, § 862; R.S. 1931, § 122-431; C.S. 1945, § 71-251; W.S. 1957, § 41-148.

Cited in

Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

§ 41-4-102. Copies of records as evidence.

Copies of papers, books, records and maps, on file and deposited by virtue of any law, in the office of the state engineer or state board of control, and certified by the state engineer or secretary of the state board of control, shall be competent evidence in the courts and have the same force and effect as the originals would if produced.

History. Laws 1909, ch. 24, § 1; C.S. 1910, § 798; C.S. 1920, § 919; R.S. 1931, § 122-140; C.S. 1945, § 71-263; W.S. 1957, § 41-149.

§ 41-4-103. Cooperation and agreements with Utah; appropriations to Montana.

The state engineer is hereby authorized and empowered to receive and grant applications to appropriate water from streams in Wyoming where such water is to be conveyed and used for beneficial purposes within the state of Utah, and the board of control is hereby authorized and empowered to issue certificates of appropriation under such permits as may be granted by the state engineer of Wyoming upon certification from the state engineer of Utah that the waters appropriated have been put to beneficial uses set forth in the permits. The state engineer and the board of control of Wyoming are also authorized and empowered to cooperate with the state engineer of Utah in the determination, supervision, regulation and control of all water and water rights on all interstate streams; and to these ends the state engineer and board of control of Wyoming, by and with the consent of the governor, may enter into the necessary agreements with the state engineer of Utah to carry out the purposes of this section; provided, that such agreements are not in conflict with the provisions of the irrigation laws now in force in this state; provided, further, that such authority shall not be exercised by the state engineer or board of control until after the state of Utah has passed a law granting its state engineer like authority to that granted to the state engineer and board of control of Wyoming by this section. The state engineer is further authorized and empowered to receive and grant applications to appropriate water from the Little Missouri River in Wyoming where such water is to be conveyed and used for beneficial purposes within the state of Montana, and the board of control is hereby authorized and empowered to issue certificates of appropriation under such permits as may be granted by the state engineer of the state of Wyoming, upon certification from the state of Montana that the waters appropriated have been put to beneficial uses set forth in the permit. Provided that the granting of any such permit for application to beneficial uses in the state of Montana shall in no manner impair or injure any existing water rights in the state of Wyoming.

History. Laws 1921, ch. 47, § 1; R.S. 1931, § 122-432; Laws 1939, ch. 96, § 1; C.S. 1945, § 71-264; W.S. 1957, § 41-150.

Cross references. —

As to rights to foreign waters, see §§ 41-3-201 through 41-3-215 .

As to interstate streams commission, see §§ 41-11-201 through 41-11-206 .

As to various interstate river compacts, see chapter 12 of this title.

§ 41-4-104. Adjudication of rights to water for use in adjoining state.

After issuance of the permit under legislative authority and completion of the work according to the terms of the permit, the board of control may adjudicate said water rights upon proof of beneficial use as provided by W.S. 41-4-511 .

History. Laws 1945, ch. 88, § 2; C.S. 1945, § 71-266; W.S. 1957, § 41-152.

Editor's notes. —

The permit referred to above was for the use of water to be diverted or stored in Wyoming for use in an adjoining state. The statutory requisites for the permit were enacted in § 1, ch. 88, Laws 1945 [§ 41-151, W.S. 1957] and repealed by § 2, ch. 25, Laws 1974.

Authorization to approve the application to divert and appropriate water for use in an adjoining state, and authorization to adjudicate water rights in conformity with § 41-151, W.S. 1957, and this section has been given in the following acts:

Laws 1949, ch. 53. Application of Garden Water Co., Driggs, Idaho, to divert water from Darby Creek, to irrigate land in Idaho.

Laws 1951, ch. 77. Application of Squirrel Creek Irrigation Co., Ashton, Idaho, to store water from Indian Lake, for irrigation of land in Idaho.

Laws 1953, ch. 96. Applications of Squirrel Creek Irrigation Co., Ashton, Idaho, to store water from Indian Lake Creek in Bergman Lake Reservoir, for irrigation of land in Idaho.

Laws 1953, ch. 195. Applications of John and Peter Etcheverry, Cokeville, Wyo., to store water from Thomas Fork Creek in Thomas Fork Reservoir, for irrigation of land in Idaho.

Laws 1955, ch. 31. Application of Harold Brower, Freedom, Wyo., to divert water from Tin Cup Creek, for irrigation of land in Idaho.

Laws 1955, ch. 32. Application of Boone Creek Canal Co., of Idaho, to divert water from Boone Creek, for use on land in Idaho.

Laws 1955, ch. 63. Application of Arthur Barker to construct Barker Reservoir and store water from Sage Creek, for irrigation of land in Wyoming and Utah.

Laws 1955, ch. 86. Applications of John and Peter Etcheverry, Cokeville, Wyo., to store water from Thomas Fork Creek in enlargement of Thomas Fork Reservoir, for irrigation of land in Idaho.

Laws 1955, ch. 106. Application of Joseph W. Peacock, Driggs, Idaho, to divert water from Teton Creek, for irrigation of land in Idaho.

Laws 1957, ch. 33. Application of Boone Creek Canal Co., of Idaho, to store water from South Fork of Boone Creek and North Squirrel Creek, for irrigation of land in Idaho and other uses.

Laws 1957, ch. 103. Application of Alta Community Pipe Line Co. to deliver for use in Idaho a portion of an appropriation of water from Teton Creek.

Laws 1957, ch. 104. Applications for permits to divert water for domestic purposes in that part of Spring Creek community located in Idaho.

Laws 1961, ch. 140. Application of Joseph M. Peacock, Driggs, Idaho, to divert water from Teton Creek, tributary of Teton River, through the enlargement of the Brown-Clement Ditch, for irrigation of land in Idaho.

Laws 1965, ch. 64. Application of Peter and John Etcheverry to divert and appropriate the underground water of the state for the original and supplemental irrigation of lands in Idaho, and for other beneficial uses.

Laws 1965, ch. 65. Application of the Bauman Ranch to divert and appropriate the underground water of the state for the irrigation of lands in Colorado.

Laws 1973, ch. 94. Application of the Blake Ranch to divert and appropriate the surface water of the state for the irrigation of lands in Colorado.

As to permit for reservoir with the damsite in Crook county known as the McKean or Carlisle damsite, see note to § 41-12-201 .

Water rights perfected by filing of application for permit. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Library references. —

18 Nat. Resources & Env't Law Review 3.

§ 41-4-105. Adjudication of rights to water for use in adjoining state; permits issued before February 25, 1939.

Where ditches or reservoirs have been built under permits issued by the state of Wyoming prior to February 25, 1939, and where water has been diverted by, or stored in such works and applied to beneficial use thereunder in an adjoining state, and where such state as a matter of policy grants reciprocal rights to divert and store water in such state for use in Wyoming, the state board of control shall by this act [§§ 41-4-104 , 41-4-105 ], be authorized to proceed with the adjudication of said water rights for use of the water in the state in which the same has been applied to a beneficial use and issue certificates of appropriation therefor, as provided by the statutes of Wyoming.

History. Laws 1945, ch. 88, § 3; C.S. 1945, § 71-267; W.S. 1957, § 41-153.

Repealing clauses. —

Laws 1945, ch. 88, § 4, reads: “Chapter 125, Session Laws of Wyoming, 1939, and all acts or parts of acts inconsistent or in conflict herewith are hereby repealed.” Chapter 125, Laws 1939, dealt with the same subject matter as ch. 88, Laws 1945.

Library references. —

18 Nat. Resources & Env't Law Review 3.

§ 41-4-201. Created; members; location of office; meetings generally; state engineer ex officio president; quorum.

There is hereby constituted a state board of control composed of the state engineer and the superintendents of the four (4) water divisions. The board shall have an office with the state engineer at Cheyenne. The board shall hold regular quarterly meetings each year, the dates to be set by the board. Other meetings shall be held at the call of the president for the transaction of business as may come before it. Special meetings of the board may be called by the president after a request for a special meeting is made by a party seeking board action which cannot be accommodated at a regular meeting. The party or parties making a request shall make payment to the board of control to cover all costs of travel and per diem expenses incidental to the special meeting. The state engineer is ex officio president of the board, and may vote on all questions coming before it. A majority of all the members of the board constitutes a quorum to transact business.

History. Laws 1890-91, ch. 8, § 19; 1895, ch. 62, § 4; R.S. 1899, § 857; Laws 1907, ch. 86, § 5; C.S. 1910, § 761; C.S. 1920, § 882; Laws 1927, ch. 86, § 1; R.S. 1931, § 122-101; C.S. 1945, § 71-201; Laws 1953, ch. 32, § 1; 1955, ch. 69, § 1; W.S. 1957, § 41-154; Laws 1977, ch. 97, § 1.

Constitutionality. —

Legislature can authorize supervision and control of appropriation and distribution of public waters of the state by administrative officers, pursuant to adjudicated priorities, and fact that a water official may make a wrongful distribution of water in particular cases, or erroneously open a watergate to pass water for an appropriator whose right is denied by another, are not grounds for holding statutes unconstitutional. Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (Wyo. 1911).

§ 41-4-202. Ex officio secretary of the board; duties generally.

The ex officio secretary of the state board of control shall be appointed by the board and be an employee of the state engineer. The duties of the secretary shall, under direction of the president of the board, consist of keeping a full, true and complete record of the transactions of the state board of control, and to certify, under seal, all certificates of appropriation made according to law, and to perform other duties as may be required by the board.

History. Laws 1899, ch. 59, § 1; R.S. 1899, § 858; Laws 1903, ch. 41, § 2; C.S. 1910, § 762; Laws 1919, ch. 40, § 8; C.S. 1920, § 883; Laws 1927, ch. 86, § 2; 1929, ch. 86, § 1; R.S. 1931, § 122-102; Laws 1933, ch. 86, § 1; C.S. 1945, § 71-202; W.S. 1957, § 41-155; Laws 1989, ch. 94, § 1.

Cross references. —

For duty of clerk of district court to transmit copy of judgment relative to appeal from board of control to secretary of board of control, and as to duty of secretary to record same, see § 41-4-407 .

For duty of secretary of board of control to issue instructions to superintendents of water divisions with reference to judgments, orders or decrees issued by district court, see § 41-4-407 .

§ 41-4-203. Collection of fees generally.

1. The secretary of the state board of control shall collect in advance reasonable fees not to exceed the following:
   1. One hundred dollars ($100.00) with each proof of appropriation of water or proof of construction of a reservoir;
   2. For recording with county clerks any water right instrument or certificate not otherwise specifically provided for, the fees required in accordance with W.S. 18-3-402 ;
   3. For making copies of any document recorded or filed in the office of the state board of control, a reasonable fee shall be assessed not to exceed ten dollars ($10.00) per page.

History. Laws 1929, ch. 104, § 1; R.S. 1931, § 122-133; C.S. 1945, § 71-256; W.S. 1957, § 41-156; Laws 1965, ch. 178, § 2; 1979, ch. 56, § 1; 1993, ch. 123, § 1; 2017 ch. 99, § 1, effective July 1, 2017.

The 2017 amendment , effective July 1, 2017, in (a)(i), substituted “One hundred dollars ($100.00)” for “Fifty dollars ($50.00).”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-4-204. Collection of fees; disposition generally.

Said secretary shall, out of the fees so collected, remit with each certificate or order of the state board of control, sent to a county clerk for recording, the statutory fee for recording such instrument and pay all costs of advertising each proof of appropriation of water or proof of construction of reservoir; all other fees so collected to be paid to the state treasurer as by law provided.

History. Laws 1929, ch. 104, § 2; R.S. 1931, § 122-134; C.S. 1945, § 71-257; W.S. 1957, § 41-157; 2017 ch. 99, § 1, effective July 1, 2017.

The 2017 amendment , effective July 1, 2017, added “and pay all costs of advertising each proof of appropriation of water or proof of construction of reservoir.”

§ 41-4-205. State board of control; additional fees.

1. The secretary of the board of control shall collect fees, not to exceed the following which shall be paid in advance, and turned over to the state treasurer:
   1. For making copies of the records of the board of control or of papers or documents filed with the board, ten dollars ($10.00) for each page;
   2. For attaching certificate and seal of the board to each document or documents requested, ten dollars ($10.00).

History. Laws 1895, ch. 62, § 11; R.S. 1899, § 887; Laws 1905, ch. 26, § 1; C.S. 1910, § 792; C.S. 1920, § 913; R.S. 1931, § 122-132; C.S. 1945, § 71-236; W.S. 1957, § 41-157; Laws 1965, ch. 178, § 3; 1993, ch. 123, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 41-4-206. Duty at first meeting.

It shall be the duty of said board at its first meeting to make proper arrangements for beginning the determination of priorities of right to the use of the public waters of the state, which determination shall begin on the streams most used for irrigation, and be continued as rapidly as practicable, until all the claims for appropriation now on record shall have been adjudicated.

History. Laws 1890-91, ch. 8, § 20; R.S. 1899, § 859; C.S. 1910, § 763; C.S. 1920, § 884; R.S. 1931, § 122-103; C.S. 1945, § 71-203; W.S. 1957, § 41-159.

Cross references. —

See also § 41-4-301 as to duties of board at first meeting. As to procedure for adjudication, see §§ 41-4-301 through 41-4-328 .

Constitutionality. —

Provisions herein are constitutional. Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (Wyo. 1911).

This section is retroactive; hence a party whose right accrued prior to the adoption of the constitution must present proof of his claim to the board for adjudication. Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 1900 Wyo. LEXIS 8 (Wyo. 1900).

This section was valid in construing title of original act. Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 1900 Wyo. LEXIS 8 (Wyo. 1900).

No prescriptive rights. —

Since 1890 when water rights were required to be initiated by permit from state engineer, it is settled that prescriptive right to state waters cannot obtain. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

The board of control has discretion in deciding what are streams. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Notice required prior to adjudication. —

In action to quiet title to water right, notice of adjudication of Big Laramie River having been appropriately given, evidence of which was offered by plaintiff, was sufficient to show that board of control had jurisdiction to adjudicate rights in that stream, thus giving defendants and all similarly situated prima facie right to water therefrom adjudicated to them, also showing their interest in controversy. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Recital in water adjudication decree, by state board of control, that due notice had been given to interested parties, carries same presumption in favor of such inferior tribunal as obtains with respect of courts of general jurisdiction to show jurisdiction of the parties. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Opportunity to present claim. —

Original appropriators, predecessors of plaintiffs, having been afforded full opportunity to present their claims for adjudication of water rights, were not deprived of any constitutional right, and plaintiffs are in no better position. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Presumption that board acted correctly. —

In action to quiet title to water right prescriptively claimed by plaintiffs in Little Laramie River, allegation in defendant's answer that board of control had adjudicated a water right to predecessor of plaintiff, which was admitted, carried with it presumption of appearance and also of regularity, and all objections to pleadings must be overruled. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

In action to quiet title to water rights, independently of scope of § 41-4-311 , plaintiffs pleaded prescriptive right thereto in Little Laramie watershed, to which defendants answered, in part, setting up decrees of predecessor of plaintiffs, and, not being denied, presumption of correctness of these decrees arose, making further pleading or proof of correctness unnecessary. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

In adjudication nearly 50 years ago, by state board of control, of water rights on Little Laramie River, though failing to recite that notice was given interested parties, when the attack is collateral, it will be presumed that adjudication was after appearance, whether with or without notice being immaterial. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

If any tribunal has unlimited jurisdiction over a class of cases, it stands on same footing as courts of general jurisdiction respecting presumptions of regularity, including the presumption that due notice was given. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Jurisdiction of courts. —

Jurisdiction of courts, in matters of water adjudication is, aside from appeals, confined to determining rights in individual cases, to the extent that the board of control has not acted. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Standing to attack another's right. —

Before a party may attack right of another, either on constitutional or other grounds, he must show an interest which is affected, or right invaded, which cannot obtain where plaintiff enjoys a decreed water right which cannot be enlarged. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Effect of pleadings. —

In an action to quiet title to water rights claimed by prescription in Little Laramie River, answer setting up defense of decrees by board of control in Big Laramie River, admission by plaintiffs that the board of control had initiated a proceeding and decreed rights in latter river and its tributaries, while denying all other allegations, effect is that decree itself only is questioned and fact that it is of a priority different in time and amount than averred was immaterial, defendant not being required to anticipate such attack at the trial. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Estoppel. —

Section 41-4-310 estops water users under decrees of state board of control from claiming any other or greater rights than thereunder, and in a suit to obtain enlarged rights not only testimony offered but that admitted, in support of the petition, was immaterial and had no tendency to establish any rights in plaintiff. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Copy of decree as evidence. —

A copy of the record of the decree of adjudication, certified by the clerk of the board of control as a true and correct copy of original decree, is admissible as evidence. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Where photostatic copies of pen and ink records of decrees in board of control show nothing more suspicious than interlineations, interlineations will not prevent admission of them as evidence, when properly certified, especially when they are ancient documents. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Fact that certified copy of a judicial proceeding omits signature of judge to the record will not render copy inadmissible, especially if signature of judge was not necessary to validity of original record, and there is no statute requiring record of board of control to be signed by any officer. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

§ 41-4-207. Copies of judgments involving water rights to be sent to board.

It shall be the duty of the clerk of each district court in the state of Wyoming, upon the rendering of judgment by such court in each and every case wherein is involved in any way, any question affecting the title to any water right, irrigating or water system of any kind whatever, to forthwith prepare, free of charge, a certified copy of such judgment and forward the same to the state board of control.

History. Laws 1903, ch. 104, § 1; C.S. 1910, § 797; Laws 1917, ch. 26, § 1; C.S. 1920, § 918; R.S. 1931, § 122-139; C.S. 1945, § 71-262; W.S. 1957, § 41-160.

Records. —

Decrees of courts in action to determine interests in irrigation works, constituted a “record” within statute relating to adjudication of rights. Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 (Wyo.), reh'g denied, 28 Wyo. 282, 205 P. 1004, 1922 Wyo. LEXIS 28 (Wyo. 1922).

Cited in

Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911).

§ 41-4-208. Tabulations and supplements of adjudicated water rights; publication generally; contents; appropriations.

The president of the state board of control shall upon the taking effect of this act, employ competent assistants to compile and edit revised tabulations of adjudicated water rights in each of the four (4) water divisions of the state at such times as the president of the state board of control deems it necessary, and to compile and edit supplements to these tabulations every two (2) years, and shall furnish the necessary supplies for such compilation. These tabulations shall contain the information on adjudicated water rights according to precedent heretofore established, with whatever improvement of arrangement of the subject matter is decided advisable by the president of the board.

History. Laws 1955, ch. 76, § 1; W.S. 1957, § 41-161; Laws 1969, ch. 98, § 1.

Cross references. —

As to definition and description of water division, see § 41-3-501 .

Meaning of “this act.” —

The term “this act” refers to Laws 1955, ch. 76, § 1, which became effective March 1, 1955.

§ 41-4-209. Tabulations and supplements of adjudicated water rights; adequate copies to be printed; president to direct.

Adequate copies, as determined by the president of the state board of control, of the tabulation of adjudicated water rights and supplements shall be printed under the direction of the president of the state board of control upon a printing contract let by the department of administration and information, general services division, procurement.

History. Laws 1955, ch. 76, § 2; W.S. 1957, § 41-162; Laws 1969, ch. 98, § 2; 2004, ch. 130, § 1.

The 2004 amendment substituted “department of administration and information, general services division, procurement” for “state board of supplies.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

§ 41-4-210. Tabulations of adjudicated water rights; distribution and sale of copies; disposition of proceeds.

The state board of control is hereby instructed to deposit with the state library five (5) copies for use therein and to distribute sufficient copies for administrative purposes to the water division superintendents and water commissioners and their assistants. The balance of the copies of the complete tabulations of adjudicated water rights in Water Divisions Nos. 1, 2, 3 and 4 shall be safely kept by the board of control for sale at a reasonable price to be determined by the board. Funds derived from the sale of such volumes shall be paid into the general fund of the state of Wyoming.

History. Laws 1955, ch. 76, § 3; W.S. 1957, § 41-163; Laws 1969, ch. 98, § 3; 1975, ch. 46, § 1.

§ 41-4-211. Authority to administer oaths; rulemaking authorized.

1. The members of the board of control shall administer oaths in all cases where it is necessary in the performance of their official duties.
2. The board of control may adopt reasonable rules and regulations to carry out the duties imposed by law on the board of control. The rules and regulations may specify that the applicant shall pay the cost of advertising.

History. Laws 1895, ch. 62, § 10; R.S. 1899, § 885; C.S. 1910, § 790; C.S. 1920, § 911; R.S. 1931, § 122-130; C.S. 1945, § 71-235; W.S. 1957, § 41-164; Laws 1979, ch. 56, § 1.

Cross references. —

As to officers authorized to administer oaths, see § 1-2-102 .

Law reviews. —

For case note, “Water Law — Standing Requirement Under the Wyoming Forfeiture Statute. Platte County Grazing Association v. State Board of Control, 675 P.2d 1279, 1984 Wyo. LEXIS 244 (Wyo. 1984),” see XIX Land & Water L. Rev. 485 (1984).

§ 41-4-301. Streams to be first adjudicated.

The method of determining the priority and amounts of appropriation to be as follows: the board of control shall decide at their first meeting, the streams to be first adjudicated, and shall fix a time for the beginning of taking of testimony, and the making of such examination as will enable them to determine the rights of the various claimants.

History. Laws 1890-91, ch. 8, § 20; R.S. 1899, § 860; C.S. 1910, § 764; C.S. 1920, § 885; R.S. 1931, § 122-104; C.S. 1945, § 71-204; W.S. 1957, § 41-165.

Cross references. —

As to rights to foreign water, see §§ 41-3-201 through 41-3-215 . See also § 41-4-206 as to duties of board at first meeting. As to adjudication of water rights with reference to diversion or storage of water for use in adjoining state by board, see § 41-4-104 . For duties of state board of control as to adjudication generally, see § 41-4-206 . As to tabulations and supplements of adjudicated water rights, see §§ 41-4-208 through 41-4-210 . As to proceedings upon appeal from decisions of board of control with reference to water rights, see §§ 41-4-401 through 41-4-408 .

Stated in

Wyoming v. United States, 933 F. Supp. 1030, 1996 U.S. Dist. LEXIS 11526 (D. Wyo. 1996).

Law reviews. —

For article “Rights of Wyoming Appropriators in Underground Water,” see 1 Wyo. L.J. 111.

For article, “Priority and Progress — Case Studies in the Transfer of Water Rights,” see I Land & Water L. Rev. 1 (1966).

For article, “Transfer of Water Rights — Errata and Addenda — Sales for Recreational Purposes and to Districts,” see II Land & Water L. Rev. 321 (1967).

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

§ 41-4-302. Notice; by publication; contents; taking of testimony; adjournment of hearings generally.

The said board shall prepare a notice, setting forth the date when the engineer will begin a measurement of the stream, and the ditches diverting the water therefrom, and a place, and a day certain, when the superintendent of the water division in which the stream to be adjudicated is situated, shall begin the taking of testimony as to the rights of the parties claiming water therefrom. Said notice shall be published in two (2) issues of a newspaper having general circulation in the county in which such stream is situated, the publication of said notice to be at least thirty (30) days prior to the beginning of taking testimony by said division superintendent, or for the measurement of the stream by the state engineer, or his assistant; and the superintendent taking such testimony shall have the power to adjourn the taking of evidence from time to time, and from place to place; provided, all places appointed and adjourned to by the superintendent shall be so situated, as related to the streams, as shall best suit the proper convenience of the persons interested in the determination of such priorities and appropriations.

History. Laws 1890-91, ch. 8, § 20; R.S. 1899, § 861; C.S. 1910, § 765; C.S. 1920, § 886; R.S. 1931, § 122-105; C.S. 1945, § 71-205; W.S. 1957, § 41-166.

§ 41-4-303. Notice; by mail to claimants.

It shall also be the duty of said division superintendent to mail to each party having a recorded claim to waters of said stream, by registered mail, a similar notice setting forth the date when the state engineer, or his assistant, will begin the examination of the stream and ditches diverting water therefrom, and also the date when the superintendent will begin the taking of testimony, and the date when the taking of such testimony by said division superintendent shall close.

History. Laws 1890-91, ch. 8, § 20; R.S. 1899, § 862; C.S. 1910, § 767; C.S. 1920, § 888; R.S. 1931, § 122-107; C.S. 1945, § 71-206; W.S. 1957, § 41-167.

Notice required prior to adjudication. —

In action to quiet title to water right, notice of adjudication of Big Laramie river having been appropriately given, evidence of which was offered by plaintiff, evidence was sufficient to show that board of control has jurisdiction to adjudicate rights in that stream, and thus giving defendants, and all similarly situated, prima facie right to water therefrom adjudicated to them, and hence also showing their interest in controversy. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Opportunity to present claims. —

Original appropriators, predecessors of plaintiffs, having been afforded full opportunity to present their claims for adjudication of water rights, were not deprived of any constitutional right, and plaintiffs are in no better position. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Due process. —

Under this section, service of notice by registered letter in the United States mail is sufficient service to constitute due process of law. Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 1900 Wyo. LEXIS 8 (Wyo. 1900).

Effect of pleadings. —

In action to quiet title to water rights, claimed by prescription in Little Laramie River, answer setting up defense of decrees by board of control in Big Laramie River, admission by plaintiffs that board of control had initiated a proceeding and decreed rights in latter river and its tributaries, while denying all other allegations, effect is that decree itself only is questioned and fact that it is of a priority different in time and amount than averred is immaterial, defendant not being required to anticipate such attack at the trial. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Copy of decree as evidence. —

A copy of the record of the decree of adjudication, certified by the clerk of the board of control as a true and correct copy of original decree, is admissible in evidence. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Adjudications by the board of control are prima facie correct, though not binding on persons not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

In action to quiet title to water right prescriptively claimed by plaintiffs in Little Laramie river, allegation in answer of defendant that board of control had adjudicated water right to predecessor of plaintiffs, which was admitted, carried with it presumption of appearance and also of regularity, hence all objections to pleadings must be overruled. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

If any tribunal has unlimited jurisdiction over a class of cases, it stands on the same footing as courts of general jurisdiction respecting presumptions of regularity, including the presumption that due notice was given. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

In adjudication nearly 50 years ago, by state board of control, of water rights on Little Laramie River, though failing to recite that notice was given interested parties, when the attack is collateral, it will be presumed that adjudication was after appearance, whether with or without notice being immaterial. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Cited in

In re Water Rights in Big Laramie River, 27 Wyo. 88, 192 P. 680, 1920 Wyo. LEXIS 28 (1920).

§ 41-4-304. Notice; all claimants to be notified.

In issuing notices to claimants in priority adjudications of the waters of any stream and its tributaries, as provided in W.S. 41-4-305 , all parties named in claiming the waters of said stream or tributaries in said transcript shall be notified by mail.

History. Laws 1890-91, ch. 8, § 33; R.S. 1899, § 886; C.S. 1910, § 791; C.S. 1920, § 912; R.S. 1931, § 122-131; C.S. 1945, § 71-237; W.S. 1957, § 41-168.

§ 41-4-305. Notice; enclosure of form for statement by claimant; contents.

1. Said division superintendent shall, in addition, enclose with said notice a blank form on which said claimant shall present in writing all the particulars showing the amounts and dates of appropriations to the use of water of said stream to which he lays claim; the said statement to include the following:
   1. The name and post office address of the claimant;
   2. The nature of the use on which the claim for appropriation is based;
   3. The time of the commencement of such use, and if distributing works are required;
   4. The date of beginning of the survey;
   5. The date of beginning of construction;
   6. The date when completed;
   7. The date of beginning and completion of enlargements;
   8. The dimensions of the ditch as originally constructed and as enlarged;
   9. The date when water was first used for irrigation or other beneficial purposes, and if used for irrigation, the amount of land reclaimed the first year; the amount in subsequent years, with the dates of reclamation, and the amount of land such ditch is capable of irrigating;
   10. The character of the soil and the kind of crops cultivated and such other facts as will show a compliance with the law in acquiring the appropriation and the rank of priority claimed.

History. Laws 1890-91, ch. 8, § 20; R.S. 1899, § 863; C.S. 1910, § 768; C.S. 1920, § 889; R.S. 1931, § 122-108; C.S. 1945, § 71-207; W.S. 1957, § 41-169.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Constitutionality. —

Provisions herein are constitutional. Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (Wyo. 1911).

Adjudications by the board of control are prima facie correct, though not binding on persons not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Adjudication of water shares. —

In absence of claims or proofs by landowners, decree adjudicating company's right to two appropriations of stated number of cubic feet of water per second from river for irrigation of specified acreage of land did not adjudicate equal proportionate shares of water to each piece of land designated. State v. Laramie Rivers Co., 59 Wyo. 9, 136 P.2d 487, 1943 Wyo. LEXIS 4 (Wyo. 1943).

Laches. —

Doctrine of laches applies to an attack of abandonment of a water right, whether of a completed appropriation or of a gradual development proceeding with reasonable diligence, statute of nonuser applying, with possible exceptions, only to a perfected right under a permit and not to an inchoate right, since state engineer has right to extend or to cancel a permit, and there is no enactment applicable to irrigation projects under construction, but not completed, at time of enactment of § 41-4-506 in 1890. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

§ 41-4-306. Notice; statements to be under oath; administering.

Each of said claimants shall be required to certify to his statements under oath, and the superintendent of the water division in which the testimony is taken is hereby authorized to administer such oaths, which shall be done without charge to the claimant, as also shall be the furnishing of blank forms for said statement.

History. Laws 1890-91, ch. 8, § 21; R.S. 1899, § 864; C.S. 1910, § 769; C.S. 1920, § 890; R.S. 1931, § 122-109; C.S. 1945, § 71-208; W.S. 1957, § 41-170.

Cross references. —

As to officers authorized to administer oaths, see § 1-2-102 .

Adjudications by board. —

Adjudications by the board of control are presumed to be correct and prima facie evidence thereof even on parties who were not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

§ 41-4-307. Notice; payment of printing costs.

All bills for the printing of notices to claimants of water in the adjudications provided for in this act shall be paid for by the secretary of the state board of control.

History. Laws 1890-91, ch. 8, § 39; R.S. 1899, § 969; C.S. 1910, § 766; C.S. 1920, § 887; R.S. 1931, § 122-106; C.S. 1945, § 71-252; W.S. 1957, § 41-171; 2017 ch. 99, § 1, effective July 1, 2017.

The 2017 amendment , effective July 1, 2017, substituted “secretary of the state board of control” for “county in which the stream, the appropriation of whose waters shall have been so adjudicated, shall be situated, the said bills to be approved by the superintendent of the water division in which the adjudication is made.”

Meaning of “this act.” —

The words “this act” refer to ch. 8, Laws 1890-91. See note to § 41-3-501 .

§ 41-4-308. Taking of testimony generally; taking of proof.

Upon the date named in the notice provided for in the preceding sections, the division superintendent shall begin the taking of testimony and shall continue until the testimony shall be completed; provided, that in case the division superintendent of any water division is directly or indirectly interested in the water of any stream of his division, or is prevented by illness or other disability from the taking of the proofs, the taking of evidence so far as relates to the stream shall be under the direction of the division superintendent of the next nearest water division or under the direct personal supervision of the state engineer, as may be deemed by the engineer the most expedient. Provided, that in the taking of proofs of appropriation of water made under a permit issued by the state engineer, the permits having been issued subsequent to the adjudication of the waters of the stream from which the appropriation is made, the superintendent may, in his discretion, authorize the water commissioner of the district in which the appropriation is made to take the proofs. Upon the taking of the proofs so ordered the water commissioner shall at once forward them to the division superintendent. The water commissioner shall take no proofs except those specifically ordered by the division superintendent. Provided that in the taking of proofs of appropriation of water made under a permit issued by the state engineer subsequent to the adjudication of the water of the stream from which the appropriation is made, the superintendent may, in his discretion authorize the water commissioner of the district in which the appropriation is made to take the proofs. Upon the taking of the proofs so ordered the water commissioner shall at once forward them to the division superintendent. The water commissioner shall take no proofs except those specifically ordered by the division superintendent.

History. Laws 1890-91, ch. 8, § 22; R.S. 1899, § 865; Laws 1901, ch. 87, § 1; C.S. 1910, § 770; C.S. 1920, § 891; R.S. 1931, § 122-110; C.S. 1945, § 71-209; W.S. 1957, § 41-172; Laws 1991, ch. 157, § 1.

Cross references. —

For provision on final proof of appropriation, see § 41-4-511 .

Cited in

Laramie Irrigation Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (1932).

§ 41-4-309. Notice on completion of testimony; inspection of evidence.

Upon the completion of the taking of evidence by the division superintendent, it shall be his duty to at once give notice, in one (1) issue of some newspaper of general circulation in the county where such determination is, and by registered mail to the various claimants, that upon a certain day, and a place named in the notice, all of said evidence shall be open to the inspection of the various claimants, and said superintendent shall keep said evidence open to inspection at said place, not less than one (1) day and not more than five (5) days.

History. Laws 1890-91, ch. 8, § 22; R.S. 1899, § 866; C.S. 1910, § 771; C.S. 1920, § 892; R.S. 1931, § 122-111; C.S. 1945, § 71-210; W.S. 1957, § 41-173.

Parol evidence. —

If admissible, parol evidence which would contradict written words “waste and seepage water” appearing on map accompanying application for permit to appropriate water must at least be clear and convincing. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

Cited in

Laramie Irrigation Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (1932).

§ 41-4-310. Duty of claimants to appear; failure to comply; time limits for appearance; rights of claimant not notified of adjudication.

Whenever the state board of control shall, as provided by law, proceed to adjudicate and determine the rights of the various claimants to the use of water upon any stream or other body of water, it shall be the duty of all claimants interested in such stream or other body of water to appear and submit proof of their respective appropriations, at the time and in the manner required by law; and any such claimant who shall fail to appear in such proceedings and submit proof of his appropriations shall be barred and estopped from subsequently asserting any rights theretofore acquired upon the stream or other body of water embraced in such proceedings, and shall be held to have forfeited all rights to the use of said stream theretofore claimed by him. Provided, that any person claiming the right to the use of water of any stream heretofore adjudicated by the board of control who, having been or claiming to have been at the time an appropriator therefrom, shall have failed to appear and submit proof of his claim shall be permitted within one (1) year after the passage of this act, but not thereafter, to apply for a hearing and an adjudication of his rights in the manner hereinafter provided; and provided, further, that any claimant upon whom no other service shall be made than by publication in the newspaper, of the notice of such proceedings and taking of testimony, may, within one (1) year after the entry of the order or decree of the board, determining the rights of the various claimants upon any particular stream or other body of water, have the same opened and be let in to give proof of his appropriation; but before the decree of the board can be opened in such case, the applicant shall give notice to all other persons interested in the water of the stream or other body of water in question, and shall with his petition file the same kind of proof as required of claimants in original hearings and make it appear to the satisfaction of the board that during the pendency of the proceedings he had no actual notice thereof in time to appear and make proof of his claim; and all parties interested may present affidavits as to the matter of actual notice of the applicant.

History. Laws 1901, ch. 67, § 2; C.S. 1910, § 794; C.S. 1920, § 915; R.S. 1931, § 122-136; C.S. 1945, § 71-259; W.S. 1957, § 41-174.

Repealing clauses. —

Section 3, ch. 67, Laws 1901, was repealed by § 19, ch. 86, Laws 1907.

Purpose of this section is to make clear that the adjudication of a water right in favor of a claimant shall be final and binding, and that no further rights may be claimed by him over and above the award made in the adjudication. Petition for Change in Use & for Change in Place of Use for Ekxtrom No. 1 Well, etc. v. State Bd. of Control, 649 P.2d 657, 1982 Wyo. LEXIS 365 (Wyo. 1982).

Purpose and scope of section. —

This section was enacted as state policy to establish certainty as the foundational basis of justice in administration of water rights, and requiring all to thereunder submit proof within one year, and it clearly holds that plaintiffs have a water right, as to priority and amount, as awarded by board of control, and no other or greater. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Jurisdiction of board. —

In action to quiet title to water right, notice of adjudication of Big Laramie river having been appropriately given, evidence of which was offered by plaintiff, was sufficient to show that board of control had jurisdiction to adjudicate rights in that stream, thus giving defendants and all similarly situated prima facie right to water therefrom adjudicated to them, and hence also showing their interest in controversy. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

General rules concerning necessary or proper parties apply. —

While this section speaks of the necessity for “all claimants interested in such stream” to appear and submit proof, no fixed standards concerning necessary or proper parties are actually set forth, and under such circumstances, general rules are usually applicable. Anita Ditch Co. v. Turner, 389 P.2d 1018, 1964 Wyo. LEXIS 83 (Wyo. 1964).

Owners must be made parties if certificates are to be issued in their names. —

In order to issue certificates in the names of the record owners of the land, the board is duty bound to see that the owners are properly made parties to the proceeding. Anita Ditch Co. v. Turner, 389 P.2d 1018, 1964 Wyo. LEXIS 83 (Wyo. 1964).

The board is without authority to name a person an appropriator in its order or certificate, even though that person is an owner of an interest in the subject property, when it has failed to have him named as a party to the proceeding. Anita Ditch Co. v. Turner, 389 P.2d 1018, 1964 Wyo. LEXIS 83 (Wyo. 1964).

Presumption that notice given. —

If any tribunal has unlimited jurisdiction over a class of cases, it stands on same footing as courts of general jurisdiction respecting presumptions of regularity, including presumption that due notice was given. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Where recital appears in water adjudication decree, by state board of control, that due notice had been given to interested parties, presumption will be indulged in favor of such inferior tribunal as obtains with respect of courts of general jurisdiction to show jurisdiction of parties. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Original appropriators, predecessors of plaintiffs, having been afforded full opportunity to present their claims for adjudication of water rights were not deprived of any constitutional right, and plaintiffs are in no better position. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Presumption that appearance made. —

Where adjudication, by state board of control, of water rights on Little Laramie river, though failing to recite that notice was given interested parties, was had nearly 50 years ago, and courts indulge presumptions the more readily when proceedings are ancient, when the attack is collateral, and when it is admitted that decree adjudicated rights in favor of plaintiffs' predecessors in interest, it must be presumed it was after appearance. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

In action to quiet title to water right prescriptively claimed by plaintiffs in Little Laramie river, allegation in defendant's answer that board of control had adjudicated a water right to predecessor of plaintiff, which was admitted, carried with it presumption of appearance and also of regularity, and all objections to pleadings must be overruled. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Presumption that adjudication correct. —

In action to quiet title to water rights, independently of scope of § 41-4-311 , plaintiffs pleaded prescriptive right thereto in the Little Laramie watershed, to which defendants answered, in part setting up decrees of predecessor of plaintiff, and, not being denied, presumption of correctness of these decrees arose, making further pleading or proof of correctness unnecessary. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Adjudications by board of control were prima facie correct, though not binding on persons not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Jurisdiction of courts. —

Jurisdiction of court, in matters of water adjudication, is, aside from appeals, confined to determining rights in individual cases, to the extent that the board of control has not acted. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Requirements for prescriptive title. —

Testimony and findings of the court examined failed to show prescriptive right in plaintiffs adverse to defendants, for possession to ripen into prescriptive title must be actual, hostile, exclusive, and continuous for period prescribed by statute. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

No prescriptive rights to water. —

Since 1890 when water rights were required to be initiated by permit from state engineer, it is settled that prescriptive right to state waters cannot obtain. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Water right by prescription being impossible up to adjudication in Little Laramie river in 1892, and it being impossible for the appropriators to change their claim to priority as to time and amount in their particular tributary stream, they will not be better enabled to take a different course because their dispute is with appropriators direct from the main stream. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Showing of interest necessary to attack another's right. —

Before a party may attack right of another, either on constitutional or other grounds, he must show an interest which is affected, or a right invaded, which cannot obtain where plaintiff enjoys a decreed water right which cannot be enlarged. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Enlargement of rights. —

This section estops water users under decrees of state board of control from claiming any other or greater rights than thereunder, hence in a suit to obtain enlarged rights not only the testimony offered but that admitted, in support of the petition, was immaterial and had no tendency to establish any rights in the plaintiff. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Questioning decree. —

In action to quiet title to water rights, claimed by prescription, in Little Laramie river, answer sets up defense of decrees by board of control, in Big Laramie river, and admission was made by plaintiffs that the board of control had initiated proceeding and decreed rights in latter river and its tributaries, while denying all other allegations, decree itself only is questioned and fact that it is of a priority different in time and amount than averred was immaterial, defendant not being required to anticipate such attack at the trial. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Copy of record admissible. —

In suit to quiet title to water rights, a copy of record of the decree of adjudication, certified by the clerk of the board of control as true and correct copy of original decree, is admissible. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Photostatic copies of pen and ink records of decrees in the board of control, showing nothing more suspicious than interlineations, will not prevent their admission as evidence, when properly certified, especially as they are what is called ancient documents. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Fact that certified copy of judicial proceeding omits signature of judge to the record will not render the copy inadmissible, especially if signature of judge was not necessary to validity of original record, there being no statute requiring the record of board of control to be signed by any officer. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Laches. —

Where suits to quiet title to water rights in Little Laramie river were started in 1932 attacking appropriation claimed by defendants under an adjudication by board of control in 1903, attack upon at least largest part of defendant's appropriation was barred by laches. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Stated in

Big Goose & Beaver Ditch Co. v. Wallop, 382 P.2d 388, 1963 Wyo. LEXIS 93 (Wyo. 1963).

§ 41-4-311. Others contesting rights of original claimants; when permitted; procedures generally.

Whenever the rights to the use of the waters of any stream and all its tributaries within the state have been adjudicated as provided by law, and it shall appear by the records of such adjudication that it had not been had at one (1) and the same proceeding, then in such case the state board of control shall be and is hereby authorized to give notice of the opening to public inspection of all proofs or evidences of appropriation of water, and the findings of the board in relation thereto from the stream and its tributaries in the manner and according to the provisions of W.S. 41-4-309 ; and any persons, corporations or associations who may desire to contest the claims or rights of other persons, corporations or associations, as set up in the proofs or established by the board, shall proceed in the manner provided for in W.S. 41-4-312 , 41-4-313 and 41-4-314 ; provided, that contests may not be entered into and shall not be maintained except between appropriators who were not parties to the same adjudication proceedings in the original hearings.

History. Laws 1903, ch. 92, § 1; C.S. 1910, § 795; C.S. 1920, § 916; R.S. 1931, § 122-137; C.S. 1945, § 71-260; W.S. 1957, § 41-175.

Cross references. —

For duty of superintendent to transmit evidence and testimony to board of control, and as to issuance and cost of new certificate, see § 41-4-315 .

Power of legislature. —

The legislature has no power to make adjudications by the board of control binding upon persons who were not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Purpose of act. —

Section 41-4-310 was enacted as state policy to establish certainty as the foundational basis of justice in administration of water rights, and requiring all to thereunder submit proofs within 1 year; and statute clearly holds that plaintiffs have a water right, as to priority and amount, as awarded by board of control, and no other or greater, there is no implication to the contrary in this section. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Provisions discretionary. —

The provisions of this section as to giving notice of the opening of records for contest are discretionary and not mandatory. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Adjudication. —

The word “adjudication” as used herein means the determination of priorities by the board of control. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

“Adjudication” of stream priorities is a proceeding in rem, or quasi in rem; and adjudication is generally considered the equivalent of “determination.” Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Jurisdiction of board. —

In action to quiet title to water right, notice of adjudication of Big Laramie river having been appropriately given, evidence of which was offered by plaintiff, was sufficient to show that board of control had jurisdiction to adjudicate rights in that stream, thus giving defendants and all similarly situated prima facie right to water therefrom adjudicated to them, and hence also showing their interest in controversy. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Division between streams. —

Where board of control adjudicated priorities on a stream and the tributary in separate proceedings, though appropriators on one stream were not parties to the action respecting the other, adjudications were sufficient to give power to the water commissioner to divide the water between the streams, though the proceedings were not binding on those not parties. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Presumption that notice given. —

If any tribunal has unlimited jurisdiction over a class of cases, it stands on same footing as courts of general jurisdiction respecting presumptions of regularity, including presumption that due notice was given. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Where recital appears in water adjudication decree, by state board of control, that due notice had been given to interested parties, presumption will be indulged in favor of such inferior tribunal as obtains with respect of courts of general jurisdiction to show jurisdiction of parties. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Original appropriators, predecessors of plaintiffs, having been afforded full opportunity to present their claims for adjudication of water rights, were not deprived of any constitutional right, and plaintiffs are in no better position. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Presumption that appearance made. —

Where adjudication, by state board of control, of water rights on Little Laramie river, though failing to recite that notice was given interested parties, was held nearly 50 years ago, and courts indulge presumptions the more readily when proceedings are ancient, when the attack is collateral, and when it is admitted that decreed adjudicated rights in favor of plaintiffs' predecessors in interest, it must be presumed it was after appearance. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

In action to quiet title to water right prescriptively claimed by plaintiffs in Little Laramie river, allegation in defendant's answer that board of control had adjudicated a water right to predecessor of plaintiff, which was admitted, carried with it presumption of appearance and also of regularity, and all objections to pleadings must be overruled. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Correct adjudication presumed. —

In action to quiet title to water rights, independently of scope of this section, plaintiffs pleaded prescriptive right thereto in the Little Laramie watershed, to which defendants answered, in part, setting up decrees of predecessor of plaintiffs, and, not being denied presumption of correctness of these decrees arose, making further pleading or proof of correctness unnecessary. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

The adjudications of the board are prima facie evidence of the correctness thereof on persons not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Jurisdiction of courts. —

Jurisdiction of courts, in matters of water adjudication, is, aside from appeals, confined to determine rights in individual cases, to the extent that the board of control has not acted. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Requirements for prescriptive title. —

Testimony and findings of the court examined failed to show prescriptive right in plaintiffs adverse to defendants, for possession to ripen into prescriptive title must be actual, hostile, exclusive, and continuous for period prescribed by statute. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

No prescriptive rights to water. —

Since 1890 when water rights were required to be initiated by permit from state engineer, it is settled that prescriptive right to state waters cannot obtain. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

A water right by prescription being impossible up to adjudication in Little Laramie river in 1892, and it being impossible for appropriators to change their claim to priority as to time and amount in their particular tributary stream, they will not be better enabled to take a different course because their dispute is with appropriators direct from the main stream. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Standing to attack another's right. —

Before party may attack right of another, either on constitutional or other grounds, he must show an interest which is invaded. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Effect of pleadings. —

In an action to quiet title to water rights, claimed by prescription in the Little Laramie river, answer setting up defense of decrees by board of control in Big Laramie river, admission by plaintiffs that the board of control had initiated a proceeding and decreed rights in latter river and its tributaries, while denying all other allegations, effect is that decree itself only is questioned. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Enlargement of rights. —

Section 41-4-310 estops water users under decrees of state board of control from claiming any other or greater rights than thereunder, hence in a suit to obtain enlarged rights not only the testimony offered but that admitted, in support of the petition, was immaterial and had no tendency to establish any rights in the plaintiff. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Relevancy. —

In action by plaintiffs to quiet title, claimed by prescription, to water right in Little Laramie river watershed, and to which defendants set up decrees in that and Big Laramie rivers, adjudication in connection with Little Laramie was relevant to show plaintiffs' claim unfounded, and determination in Big Laramie was relevant to show defendants' interest in the controversy. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Admissibility of copy of adjudication. —

A copy of the record of the decree of adjudication, certified by the clerk of the board of control as true and correct copy of original decree, is admissible. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Photostatic copies of pen and ink records of decrees in the board of control, showing nothing more suspicious than interlineations, interlineations will not prevent their admission as evidence, when properly certified, especially as they are what is called ancient documents. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Fact that a certified copy of a judicial proceeding omits signature of judge to the record will not render the copy inadmissible, especially if signature of judge was not necessary to validity of original record, and no statute exists requiring record of board of control to be signed by any officer. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Laches. —

Where suits to quiet title to water rights in Little Laramie river were started in 1932 attacking appropriation claimed by defendants under an adjudication by board of control in 1903, attack upon at least largest part of defendant's appropriation was barred by laches. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

§ 41-4-312. Others contesting rights of original claimants; notice to superintendent; time limits; affidavit; notice of hearing generally.

Should any person, corporation or association of persons owning any irrigation works, or claiming any interest in the stream or streams involved in the adjudication, desire to contest any of the rights of the persons, corporations or associations who have submitted their evidence to the superintendent as aforesaid; such persons, corporations or associations shall, within fifteen (15) days after the testimony so taken shall have been opened to public inspection, in writing, notify the superintendent of the water division in which is located said irrigation works or stream or streams, stating with reasonable certainty the grounds of their proposed contest, which statement shall be verified by the affidavit of the contestant, his agent or attorney, and the said division superintendent shall notify the said contestant and the person, corporation or association whose rights are contested, to appear before him at such convenient place as the superintendent shall designate in said notice.

History. Laws 1890-91, ch. 8, § 23; 1895, ch. 62, § 5; R.S. 1899, § 867; C.S. 1910, § 772; C.S. 1920, § 893; R.S. 1931, § 122-112; C.S. 1945, § 71-211; W.S. 1957, § 41-176.

Cross references. —

As to final proof of appropriation, and as to procedures generally, see § 41-4-511 .

Prior adjudication. —

Petition to intervene brought by irrigators to adjudicate water rights was properly dismissed by the district court, pursuant to Rule 12(b)(6), W.R.C.P., as the matter was barred by res judicata and the petition was untimely. The disputed reservoir certificates were previously adjudicated in 1963. In re General Adjudication of All Rights to use Water in the Big Horn River System, 2004 WY 21, 85 P.3d 981, 2004 Wyo. LEXIS 28 (Wyo. 2004).

Cited in

Laramie Irrigation Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (1932).

§ 41-4-313. Others contesting rights of original claimants; when hearing to be held; notice; powers of superintendents; proceedings generally.

Said superintendent shall also fix the time, both as to the day and hour, for the hearing of said contest, which date shall not be less than thirty (30) nor more than sixty (60) days from the date the notice is served on the party, association or corporation, which notice and the return thereof shall be made in the same manner as summons are served in civil actions in the district courts of this state. Superintendents of water divisions shall have power to adjourn hearings from time to time upon reasonable notice to all the parties interested, and to issue subpoenas and compel the attendance of witnesses to testify upon such hearings, which shall be served in the same manner as subpoenas issued out of the district courts of the state; and shall have the power to compel such witnesses so subpoenaed to testify and give evidence in said matter; said witnesses shall receive fees as in civil cases, to be paid by the party or parties against whom the contest shall be finally determined. The evidence on such proceedings shall be confined to the subjects enumerated in the notice of contest.

History. Laws 1890-91, ch. 8, § 23; 1895, ch. 62, § 5; R.S. 1899, § 868; C.S. 1910, § 773; C.S. 1920, § 894; R.S. 1931, § 122-113; C.S. 1945, § 71-212; W.S. 1957, § 41-177.

Cross references. —

As to witness fees and mileage, see § 41-3-328 .

As to final proof of appropriation and as to procedures generally, see § 41-4-511 .

As to process and notice generally, see §§ 1-6-101 through 1-6-301 .

As to witness fees and mileage generally, see § 1-14-102 .

Cited in

Laramie Irrigation Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (1932).

§ 41-4-314. Others contesting rights of original claimants; daily deposit required during hearings; cost of preparation of transcript; disposition of moneys deposited upon close of hearing.

The superintendent shall require a deposit of eight dollars ($8.00) from each of the contestants and contestees for each day he shall be so engaged in taking evidence on said contest. The contestant shall pay the cost of preparation of the transcript of said evidence before the contest is transmitted by the superintendent to the board of control for final determination or adjudication. Upon the final determination or the adjudication of the matters by the board of control, an order shall be entered directing that the money so deposited shall be refunded to the persons, associations or corporations in whose favor such contest shall be determined, and that all moneys deposited by other parties therein shall be turned over by the superintendent to the state treasury to the credit of the general fund.

History. Laws 1890-91, ch. 8, § 23; 1895, ch. 62, § 5; R.S. 1899, § 869; C.S. 1910, § 774; C.S. 1920, § 895; R.S. 1931, § 122-114; C.S. 1945, § 71-213; W.S. 1957, § 41-178; Laws 1959, ch. 175, § 1; 1974, ch. 16, § 2.

Cross references. —

As to final proof of appropriation and as to procedure generally, see § 41-4-511 .

Cited in

Laramie Irrigation Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (1932).

§ 41-4-315. Others contesting rights of original claimants; duty of superintendent to transmit evidence and testimony to board of control; issuance and costs of new certificate.

1. Upon the completion of the testimony and evidence taken in contests initiated under the provisions of this act [§§ 41-4-311 , 41-4-315 ], it shall be the duty of the superintendent to transmit all evidence and testimony in said contests to the office of the board of control in person or by registered mail, and the action of said board in relation thereto shall be governed by the provisions of law applicable to contest cases in original adjudication proceedings; provided, that, if as a result of any such contest it shall be necessary to cancel any final certificate theretofore issued by said board and issue a new certificate in accordance with the findings of the board, such certificate shall be issued without cost to the person entitled to it, other than is incident to a proper recording of such certificate in the office of the county clerk.
2. Upon the completion of the evidence in the original hearing before the superintendent, and the evidence taken in all contests, it shall be his duty to transmit all the evidence and testimony in said adjudication to the office of the board of control in person, or by registered mail.

History. A) Laws 1903, ch. 92, § 2; C.S. 1910, § 796; C.S. 1920, § 917; R.S. 1931, § 122-138; C.S. 1945, § 71-261: (b) Laws 1890-91, ch. 8, § 23; 1895, ch. 62, § 5; R.S. 1899, § 870; C.S. 1910, § 775; C.S. 1920, § 896; R.S. 1931, § 122-115; C.S. 1945, § 71-214; W.S. 1957, § 41-179.

Cross references. —

See also §§ 41-4-310 and 41-4-311 in connection with this section.

Editor's notes. —

Because of the similarity in the provisions of §§ 71-214 and 71-261, W.C.S. 1945, they have been combined to form a single section consisting of 2 paragraphs, each carrying its own historical citation.

Cited in

Laramie Irrigation Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (1932).

§ 41-4-316. Examination and measurement of capacity of streams and works diverting water; maps or plats.

It shall be the duty of the state engineer or some qualified assistant, to proceed at the time specified in the notice to the parties on said stream, to be adjudicated, to make an examination of said stream, and the works diverting water therefrom, said examination to include the measurement of the discharge of said stream, and of the carrying capacity of the various ditches and canals diverting water therefrom; 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 said observation and measurements shall be reduced to writing, and made a matter of record in his office; and it shall be the duty of the state engineer to make, or cause to be made, a map or plat on a scale of not less than one (1) inch to the mile, showing, with substantial accuracy, the course of said stream, the location of each ditch or canal diverting water therefrom, and the legal subdivisions of lands which have been irrigated, or which are susceptible of irrigation from the ditches and canals already constructed.

History. Laws 1890-91, ch. 8, § 24; R.S. 1899, § 871; C.S. 1910, § 776; C.S. 1920, § 897; R.S. 1931, § 122-116; C.S. 1945, § 71-215; W.S. 1957, § 41-180.

Conclusiveness of adjudication. —

The adjudication by board of control under § 41-4-317 , considering the return of the state engineer under this section, is conclusive, till superseded in a proper proceeding, on distributing officers, as to quantity of water to which an appropriator for irrigation is entitled, as well as to priorities. Parshall v. Cowper, 22 Wyo. 385, 143 P. 302, 1914 Wyo. LEXIS 22 (Wyo. 1914).

Adjudicated water rights of long standing are not readily to set aside and will not be set aside unless the proof of just cause is clear, cogent and convincing. White v. Wheatland Irrigation Dist., 413 P.2d 252, 1966 Wyo. LEXIS 142 (Wyo. 1966).

Record of examination. —

The record of examination and measurements by state engineer under this section does not affect the question as to the times when uncultivated land may have been irrigated and the extent of an appropriation therefor as to the period of use. Nichols v. Hufford, 21 Wyo. 477, 133 P. 1084, 1913 Wyo. LEXIS 31 (Wyo. 1913).

Cited in

Laramie Irrigation Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (1932).

§ 41-4-317. Determination of priorities to streams; limitations on amount of water to be allotted; disposition of excess water generally.

At the first regular meeting of the board of control after the completion of such measurement by the state engineer, and the return of said evidence by said division superintendent, it shall be the duty of the board of control to make and cause to be entered of record in its office, an order determining and establishing the several priorities of right to the use of waters of said 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 made. 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 supplied for beneficial purposes; provided, that such appropriator shall at no time be entitled to the use of more water than he can make a beneficial application of on lands, for the benefit of which the appropriation may have been secured, and the amount of any appropriation made by reason of an enlargement of distributing works, shall be determined in like manner; provided, that no allotment for the direct use of the natural unstored flow of any stream shall exceed one (1) cubic foot per second for each seventy (70) acres of land for which said appropriation shall be made, and provided, further, where there may be in any stream water in excess of the total amount of all appropriations from said stream, such excess shall be divided among the appropriators therefrom in proportion to the acreage covered by their respective permits, and provided, also, that such additional water shall be beneficially used, except as hereinafter provided.

History. Laws 1890-91, ch. 8, § 25; R.S. 1899, § 872; C.S. 1910, § 777; C.S. 1920, § 898; Laws 1921, ch. 89, § 1; R.S. 1931, § 122-117; Laws 1935, ch. 105, § 1; 1945, ch. 153, § 1; C.S. 1945, § 71-216; W.S. 1957, § 41-181.

Plaintiff not injured by statute. —

It was impossible for plaintiff's post-March 1, 1945 water right to be injured by the Wyoming Surplus Water Law because he never obtained any right greater than the one authorized by the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Thus, no standing to challenge constitutionality. —

Since plaintiff could not attack the constitutionality of the Wyoming Surplus Water Law, ch. 153, Laws 1945, on the ground of injury to rights of others, and there was no injury to plaintiff's post-March 1, 1945, rights, since only prior appropriators, not subsequent ones, could be injured by the statute, plaintiff did not have standing to challenge the constitutionality of the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Purpose of act. —

Section 41-4-310 was enacted as state policy to establish certainty as foundational basis of justice in administration of water rights, and requiring all thereunder to submit proofs within one year; and statute clearly holds that plaintiffs have a water right, as to priority and amount, as awarded by board of control, and no other or greater. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

The purpose and effect of the Wyoming Surplus Water Law, ch. 153, Laws 1945, was to define, limit and clearly provide for the vesting of the right to use the excess water by the several appropriators which had been recognized in ch. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Interpretation applied to Wyoming Surplus Water Law statutory provisions by state officers. —

See Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

“Statutory limit of volume.” —

The “statutory limit of volume” mentioned in defining a water right in § 41-3-101 , and again in this section, of 1 cu. ft. per second for each 70 acres, refers only to rights adjudicated under state laws and not under adjudication by territorial courts. Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 92 P.2d 568, 1939 Wyo. LEXIS 21 (Wyo. 1939).

No maximum allotment as to water rights via reservoirs. —

While the legislature has, as to water rights via reservoirs, established no maximum allotment of water per unit of land as a counterpart to that relating to the use of direct flow (§ 41-4-317 ), such circumstance does not alter the fact that art. 8, §§ 1 and 3, Wyo. Const., provides generally, “The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state,” and “Priority of appropriation for beneficial uses shall give the better right.” Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 475 P.2d 548, 1970 Wyo. LEXIS 198 (Wyo. 1970).

“Adjudication.” —

“Adjudication” of stream priorities is a proceeding in rem, or quasi in rem; and adjudication is generally considered the equivalent of “determination.” Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

The board of control has broad powers, direct and implied. White v. Wheatland Irrigation Dist., 413 P.2d 252, 1966 Wyo. LEXIS 142 (Wyo. 1966).

Board of control adjudicating priorities on two streams in separate proceedings has jurisdiction and adjudications are binding on parties directly involved, serving as prima facie evidence of correctness as to those not party to proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Presumption that due notice given. —

If any tribunal has unlimited jurisdiction over a class of cases, it stands on same footing as courts of general jurisdiction respecting presumptions of regularity, including presumption that due notice was given. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Where recital appears in water right adjudication decree, by state board of control, that due notice had been given to interested parties, presumption will be indulged in favor of such inferior tribunal as obtains with respect of courts of general jurisdiction, to show jurisdiction of parties. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Original appropriators, predecessors of plaintiffs, having been afforded full opportunity to present their claims for adjudication of water rights, were not deprived of any constitutional right, and plaintiffs are in no better position. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

In action to quiet title to water right, notice of adjudication of Big Laramie river having been appropriately given, evidence of which was offered by plaintiff, was sufficient to show that board of control had jurisdiction to adjudicate rights in that stream, thus giving defendants, and all similarly situated, prima facie right to water therefrom adjudicated to them, and hence also showing their interest in controversy. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Presumption that appearance made. —

Where adjudication, by state board of control, of water rights on Little Laramie river, though failing to recite that notice was given interested parties, was had nearly 50 years ago, and courts indulge presumptions the more readily when proceedings are ancient, when the attack is collateral, and when it is admitted that decree adjudicated rights in favor of plaintiffs' predecessors in interest, it must be presumed it was after appearance. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

In action to quiet title to water right prescriptively claimed by plaintiffs in Little Laramie river, allegation in defendant's answer that board of control had adjudicated a water right to predecessor of plaintiffs, which was admitted, carried with it presumption of appearance and also of regularity, and all objections to pleadings must be overruled. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Correct adjudication presumed. —

In action to quiet title to water rights, plaintiffs pleaded prescriptive right thereto in Little Laramie river waters, to which defendant answered in part, setting up decrees of their predecessors, and, not being denied, presumption of their correctness arose, making further pleading or proof of correctness unnecessary. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Orders of the board of control establishing water rights are clothed with the dignity of decrees entered by the courts. White v. Wheatland Irrigation Dist., 413 P.2d 252, 1966 Wyo. LEXIS 142 (Wyo. 1966).

The water right of any appropriator is limited to beneficial use, and, even though a larger amount of water has been adjudicated, the water right is subject to reduction if not applied for beneficial purposes. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

The quantity of water each appropriator is entitled to divert at any particular time is the quantity within limits of decree under territorial laws reasonably necessary for the acreage stated in the decree. Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 92 P.2d 568, 1939 Wyo. LEXIS 21 (Wyo. 1939).

Adjudication should be made only for water which has been applied to beneficial use. —

A definite adjudication of a water right should, ordinarily at least, be made only for water which has been applied to a beneficial use. Laramie Rivers Co. v. Levasseur, 65 Wyo. 414, 202 P.2d 680, 1949 Wyo. LEXIS 28 (Wyo. 1949).

But beneficial use is determined at time controversy arises. —

Beneficial use is to be figured at the very time when any controversy arises. Thus a decree adjudicating an appropriation of water in excess of what had been applied to a beneficial use at the time could not be attacked in a subsequent action where the whole of the initiated appropriation had been applied to beneficial use when the subsequent action was instituted. Laramie Rivers Co. v. Levasseur, 65 Wyo. 414, 202 P.2d 680, 1949 Wyo. LEXIS 28 (Wyo. 1949).

Waste. —

Use in excess of one cubic foot of water per second for each 70 acres, under an adjudication in 1889 by territorial court, and in excess of that now legislatively authorized, was not prima facie evidence of waste. Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 92 P.2d 568, 1939 Wyo. LEXIS 21 (Wyo. 1939).

Vesting of water rights. —

Water rights are real property rights which become vested as of the time the application for appropriation is filed, if the right is adjudicated. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Rights subject to those of prior appropriators. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Duty of officers to distribute water. —

It is the duty of officers charged with superintendence of diversion of waters to make distribution in accordance with adjudications. Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 92 P.2d 568, 1939 Wyo. LEXIS 21 (Wyo. 1939).

But prior adjudication not required. —

A lawful adjudication of the rights of appropriators on a stream is not required before the water commissioner can act. Distribution can be made under an uncompleted permit as well as under a certificate of appropriation. And the rule applies equally to an appropriator under the territorial law by posting notice. Laramie Rivers Co. v. Levasseur, 65 Wyo. 414, 202 P.2d 680, 1949 Wyo. LEXIS 28 (Wyo. 1949).

Assignment of water rights. —

Under decree determining water rights, development company which conveyed certain land with its water rights was not by this section required to assign water supply of 1 cubic foot per second for each 70 acres. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Water use enforceable. —

A deed under which appropriators covenant to permit use of all water to which parties to the deed were entitled, on alternate weeks, is enforcible as against a subsequent appropriator, where no more water was shown to have been used by the parties to the deed than they could use beneficially. Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208, 79 P. 22, 1904 Wyo. LEXIS 39 (Wyo. 1904).

Jurisdiction of courts. —

Jurisdiction of courts, in matters of water adjudication, is, aside from appeals, confined to determining rights in individual cases, to the extent that the board of control has not acted. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Showing of interest necessary to attack another's right. —

Before a party may attack right of another, either on constitutional or other grounds, he must show an interest which is affected, or a right invaded, which cannot obtain where plaintiff enjoys a decreed water right which cannot be enlarged. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Complaint for injunction against diversion must show individual defendants fail to make beneficial use of water. —

Even if an allegation in a complaint for injunctive relief against diversion of water, concerning the failure of all of defendants to make beneficial use of all the appropriated water could by liberal construction have been considered as a separate count, the complaint would have been subject to dismissal because it contained no statement of a claim showing plaintiffs to be entitled to relief, as relief to them under such philosophy could arise only by reason of the lack of beneficial use of the water by the individuals. Bales v. Ankney, 382 P.2d 386, 1963 Wyo. LEXIS 92 (Wyo. 1963).

Rules of pleading. —

In action not involving an ordinary adjudication between one or more parties, on the one hand, and one or more parties, on the other, in the very nature of things, the rules of pleading to ordinary extent cannot apply. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Declaratory judgment. —

If the action of the board of control adjudicating water rights under this section and the decree of the district court affirming it was merely erroneous, no attack on the decree could be made in an action for declaratory judgment. Laramie Rivers Co. v. Levasseur, 65 Wyo. 414, 202 P.2d 680, 1949 Wyo. LEXIS 28 (Wyo. 1949).

Enlargement of rights. —

Section 41-4-310 estops water users under decrees of state board of control, from claiming any other or greater rights than thereunder, hence in a suit to obtain enlarged rights not only the testimony offered, but that admitted, in support of the petition, was immaterial and had no tendency to establish any rights in the plaintiff. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Interpretation of adjudication. —

In absence of claims or proofs by landowners, decree adjudicating company's right to two appropriations of stated number of cubic feet of water per second from river for irrigation of specified acreage of land did not adjudicate equal proportionate shares of water to each piece of land designated. State v. Laramie Rivers Co., 59 Wyo. 9, 136 P.2d 487, 1943 Wyo. LEXIS 4 (Wyo. 1943).

Questioning adjudication. —

In action to quiet title to water rights, claimed by prescription, in Little Laramie river, where answer sets up defense of decrees by board of control in Big Laramie river, and admission was made by plaintiffs that board of control had initiated proceeding and decreed rights in latter river and its tributaries, while denying all other allegations, decree itself only is questioned and fact that it is of a priority different in time and amount than averred is immaterial, defendant not being required to anticipate such attack at the trial. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Requirements for prescriptive title. —

Testimony and findings of the court examined failed to show prescriptive right in plaintiffs adverse to defendants, for possession to ripen into prescriptive title must be actual, hostile, exclusive, and continuous for period prescribed by statute. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

No prescriptive rights to water. —

Since 1890 when water rights were required to be initiated by permit from the state engineer, it is settled that prescriptive right to state waters cannot obtain. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

A water right by prescription being impossible up to adjudication in Little Laramie river in 1892, and it being impossible for appropriators to change their claim to priority as to time and amount in their particular tributary stream, they will not be better enabled to take a different course because their dispute is with appropriators direct from the main stream. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Relevancy. —

In action by plaintiff to quiet title, claimed by prescription, to water right in Little Laramie river watershed, and to which defendants set up decrees in that and Big Laramie rivers, adjudication in connection with Little Laramie was relevant to show plaintiff's claim unfounded, and determination in Big Laramie was relevant to show defendants' interest in the controversy. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Copy of decree admissible. —

A copy of the record of the decree of adjudication, certified by the clerk of the board of control as true and correct copy of original decree, is admissible. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Photostatic copies of pen and ink records of decrees in the board of control, showing nothing more suspicious than interlineations, interlineations will not prevent their admission as evidence, when properly certified, especially as they are what is sometimes called ancient documents. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Fact that a certified copy of a judicial proceeding omits signature of judge to the record will not render the copy inadmissible, especially if signature of judge was not necessary to validity of original record, and no statute exists requiring record of board of control to be signed by any officer. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Adjudicated water rights of long standing are not readily to be set aside and will not be set aside unless the proof of just cause is clear, cogent and convincing. White v. Wheatland Irrigation Dist., 413 P.2d 252, 1966 Wyo. LEXIS 142 (Wyo. 1966).

Applied in

Cremer v. State Bd. of Control, 675 P.2d 250, 1984 Wyo. LEXIS 241 (Wyo. 1984).

Quoted in

Ward v. Yoder, 355 P.2d 371, 1960 Wyo. LEXIS 70 (Wyo. 1960).

Cited in

Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 1900 Wyo. LEXIS 8 , 50 L.R.A. 747 (1900); Parshall v. Cowper, 22 Wyo. 385, 143 P. 302, 1914 Wyo. LEXIS 22 (1914); Garber v. Wagonhound Land & Livestock Co., 2012 WY 89, 279 P.3d 525, 2012 Wyo. LEXIS 94 (June 22, 2012); General Adjudication of All Rights to Use Water in the Big Horn River Sys. & All Other Sources v. State, 2015 WY 104, 2015 Wyo. LEXIS 119 (Aug. 13, 2015).

Law reviews. —

For article “Rights of Wyoming Appropriators in Underground Water,” see 1 Wyo. L.J. 111.

For note, “The Right to Use Waste Water Before It Reenters the Stream,” see 12 Wyo. L.J. 47 (1957).

For note, “Forfeiture of Water Rights in Wyoming,” see 14 Wyo. L.J. 51 (1959).

For comment, “Determining Quantity in Irrigation Appropriations,” see IV Land & Water L. Rev. 501 (1969).

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

For case note on Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 487 P.2d 324, 1971 Wyo. LEXIS 230 (Wyo. 1971), see VII Land & Water L. Rev. 599 (1972).

For case note, “Water Law — Standing Requirement Under the Wyoming Forfeiture Statute. Platte County Grazing Association v. State Board of Control, 675 P.2d 1279, 1984 Wyo. LEXIS 244 (Wyo. 1984),” see XIX Land & Water L. Rev. 485 (1984).

For comment, “Forfeiture Proceedings in Wyoming Water Law: The Legislature Revives Private Standing,” see XX Land & Water L. Rev. 459 (1985).

For comment, “Wyoming's New Instream Flow Act: An Administrative Quagmire,” see XXI Land & Water L. Rev. 455 (1986).

§ 41-4-318. Surplus water; defined.

For the purpose of this act [§§ 41-4-317 through 41-4-324 ], surplus water is hereby defined to be that quantity of water belonging to the state of Wyoming flowing in the natural channel of any main stream or a tributary of a main stream within the boundaries of Wyoming, at any time in excess of the total amount required to furnish to all existing appropriations from said stream system the maximum amount of water for which all said appropriations have been granted, whether by permit or by adjudicated decree as of March 1, 1945.

History. Laws 1945, ch. 153, § 2; C.S. 1945, § 71-217; W.S. 1957, § 41-182.

Plaintiff not injured by statute. —

It was impossible for plaintiff's post-March 1, 1945 water right to be injured by the Wyoming Surplus Water Law because he never obtained any right greater than the one authorized by the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Thus, no standing to challenge constitutionality. —

Since plaintiff could not attack the constitutionality of the Wyoming Surplus Water Law, ch. 153, Laws 1945, on the ground of injury to rights of others, and there was no injury to plaintiff's post-March 1, 1945, rights, since only prior appropriators, not subsequent ones, could be injured by the statute, plaintiff did not have standing to challenge the constitutionality of the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

The purpose and effect of the Wyoming Surplus Water Law, ch. 153, Laws 1945, was to define, limit and clearly provide for the vesting of the right to use the excess water by the several appropriators. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Interpretation applied to Wyoming Surplus Water Law statutory provisions by state officers. —

See Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Application of definition of “surplus water.” —

The definition of the term “surplus water” in this section did not apply to water impounded by a reservoir owner over and above all that necessarily used for irrigation or other beneficial purposes in connection with his own lands under § 41-3-325 .Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 1956 Wyo. LEXIS 2 (Wyo. 1956).

Vesting of water rights. —

Water rights are real property rights which become vested as of the time the application for appropriation is filed, if the right is adjudicated. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Surplus water rights are mere entitlements to participate in the existing pool of surplus water according to a formula which contemplates the inclusion of all appropriators' authorized irrigable acreage and which is applied to the amount of water in the stream system at any given time, and thus surplus rights do not confer authority to divert a specified amount of water. Cremer v. State Bd. of Control, 675 P.2d 250, 1984 Wyo. LEXIS 241 (Wyo. 1984).

Rights subject to those of prior appropriators. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Limited to beneficial use. —

The water right of any appropriator is limited to beneficial use, and, even though a larger amount of water has been adjudicated, the water right is subject to reduction if not applied for beneficial purposes. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Cited in

Schulthess v. Carollo, 832 P.2d 552, 1992 Wyo. LEXIS 63 (Wyo. 1992).

Law reviews. —

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

§ 41-4-319. Surplus water; regulation and control.

It shall be the duty of the state engineer, water superintendents and water commissioners and their assistants to divide, regulate and control the diversion and taking of surplus water from any stream in a manner that all applicants will be able to obtain a proportionate share, as hereinafter defined, of the surplus water.

History. Laws 1945, ch. 153, § 5; C. S. 1945, § 71-220; W.S. 1957, § 41-183; Laws 1991, ch. 157, § 1.

Plaintiff not injured by statute. —

It was impossible for plaintiff's post-March 1, 1945 water right to be injured by the Wyoming Surplus Water Law because he never obtained any right greater than the one authorized by the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

No standing to challenge constitutionality. —

Since plaintiff could not attack the constitutionality of the Wyoming Surplus Water Law, ch. 153, Laws 1945, on the ground of injury to rights of others, and there was no injury to plaintiff's post-March 1, 1945, rights, since only prior appropriators, not subsequent ones, could be injured by the statute, plaintiff did not have standing to challenge the constitutionality of the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

The purpose and effect of the Wyoming Surplus Water Law, ch. 153, Laws 1945, was to define, limit and clearly provide for the vesting of the right to use the excess water by the several appropriators. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Interpretation applied to Wyoming Surplus Water Law statutory provisions by state officers. —

See Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Vesting of water rights. —

Water rights are real property rights which become vested as of the time the application for appropriation is filed, if the right is adjudicated. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Rights subject to those of prior appropriators. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Limited to beneficial use. —

The water right of any appropriator is limited to beneficial use, and, even though a larger amount of water has been adjudicated, the water right is subject to reduction if not applied for beneficial purposes. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

§ 41-4-320. Surplus water; rights of use generally.

1. A right to the use of surplus water as herein defined in the amount of one (1) cubic foot of water per second for each seventy (70) acres of land having an adjudicated water right or a water right under permit is hereby adjudicated to attach to all original direct flow water rights, and only on lands described in adjudicated appropriations as of record in the office of the state board of control or under valid permits or filings as of record in the office of the state engineer. The rights so adjudicated shall bear date of priority as of March 1, 1945. Rights unadjudicated shall acquire the surplus right as the original is perfected.
2. Any permits issued or water rights granted in the state of Wyoming after March 1, 1945, shall be subject to the adjudication of surplus water as provided herein.

History. Laws 1945, ch. 153, § 4; C.S. 1945, § 71-219; W.S. 1957, § 41-184.

Plaintiff not injured by statute. —

It was impossible for plaintiff's post-March 1, 1945 water right to be injured by the Wyoming Surplus Water Law because he never obtained any right greater than the one authorized by the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

No standing to challenged constitutionality. —

Since plaintiff could not attack the constitutionality of the Wyoming Surplus Water Law, ch. 153, Laws 1945, on the ground of injury to rights of others, and there was no injury to plaintiff's post-March 1, 1945, rights, since only prior appropriators, not subsequent ones, could be injured by the statute, plaintiff did not have standing to challenge the constitutionality of the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

The purpose and effect of the Wyoming Surplus Water Law, ch. 153, Laws 1945, was to define, limit and clearly provide for the vesting of the right to use the excess water by the several appropriators. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Interpretation applied to Wyoming Surplus Water Law statutory provisions by state officers. —

See Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Statutory measure of water not per se standard for waste. —

While it must be accepted that the statutory duty of water of one c.f.s. per 70 acres is controlling in those instances in which it applies, it is appropriate to perceive that statutory measure as primarily controlling the allocation of a scarce resource rather than a per se standard for waste. State ex rel. Squaw Mountain Cattle Co. v. Wheatland Irrigation Dist., 728 P.2d 172, 1986 Wyo. LEXIS 639 (Wyo. 1986).

Vesting of water rights. —

Water rights are real property rights which become vested as of the time the application for appropriation is filed, if the right is adjudicated. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Surplus water rights are mere entitlements to participate in the existing pool of surplus water according to a formula which contemplates the inclusion of all appropriators' authorized irrigable acreage and which is applied to the amount of water in the stream system at any given time, and thus surplus rights do not confer authority to divert a specified amount of water. Cremer v. State Bd. of Control, 675 P.2d 250, 1984 Wyo. LEXIS 241 (Wyo. 1984).

Rights subject to those of prior appropriators. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Limited to beneficial use. —

The water right of any appropriator is limited to beneficial use, and, even though a larger amount of water has been adjudicated, the water right is subject to reduction if not applied for beneficial purposes. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

§ 41-4-321. Surplus water; who may divert.

Surplus water, as herein defined, may be diverted by anyone having either an adjudicated appropriation or a permit granting a right to divert and take from said stream and/or its tributaries a quantity of water for beneficial use.

History. Laws 1945, ch. 153, § 3; C.S. 1945, § 71-218; W.S. 1957, § 41-185.

Plaintiff not injured by statute. —

It was impossible for plaintiff's post-March 1, 1945 water right to be injured by the Wyoming Surplus Water Law because he never obtained any right greater than the one authorized by the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Thus, no standing to challenge constitutionality. —

Since plaintiff could not attack the constitutionality of the Wyoming Surplus Water Law, ch. 153, Laws 1945, on the ground of injury to rights of others, and there was no injury to plaintiff's post-March 1, 1945, rights, since only prior appropriators, not subsequent ones, could be injured by the statute, plaintiff did not have standing to challenge the constitutionality of the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

The purpose and effect of the Wyoming Surplus Water Law, ch. 153, Laws 1945, was to define, limit and clearly provide for the vesting of the right to use the excess water by the several appropriators. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Interpretation applied to Wyoming Surplus Water Law statutory provisions by state officers. —

See Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Vesting of water rights. —

Water rights are real property rights which become vested as of the time the application for appropriation is filed, if the right is adjudicated. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Rights subject to those of prior appropriators. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

And limited to beneficial use. —

The water right of any appropriator is limited to beneficial use, and, even though a larger amount of water has been adjudicated, the water right is subject to reduction if not applied for beneficial purposes. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

§ 41-4-322. Surplus water; limitations on use.

Each applicant shall be entitled to divert for beneficial use such quantity of surplus water as he can so use, not in excess of one (1) cubic foot of water per second of time for each seventy (70) acres of land irrigated therewith, and not in excess of an amount which equals his proportionate share of the total quantity of previously appropriated water from said stream.

History. Laws 1945, ch. 153, § 6; C.S. 1945, § 71-221; W.S. 1957, § 41-186.

Plaintiff not injured by statute. —

It was impossible for plaintiff's post-March 1, 1945 water right to be injured by the Wyoming Surplus Water Law because he never obtained any right greater than the one authorized by the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Thus, no standing to challenge constitutionality. —

Since plaintiff could not attack the constitutionality of the Wyoming Surplus Water Law, ch. 153, Laws 1945, on the ground of injury to rights of others, and there was no injury to plaintiff's post-March 1, 1945, rights, since only prior appropriators, not subsequent ones, could be injured by the statute, plaintiff did not have standing to challenge the constitutionality of the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

The purpose and effect of the Wyoming Surplus Water Law, ch. 153, Laws 1945, was to define, limit and clearly provide for the vesting of the right to use the excess water by the several appropriators. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Interpretation applied to Wyoming Surplus Water Law statutory provisions by state officers. —

See Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Vesting of water rights. —

Water rights are real property rights which become vested as of the time the application for appropriation is filed, if the right is adjudicated. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Rights subject to those of prior appropriators. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Rights limited to beneficial use. —

The water right of any appropriator is limited to beneficial use, and, even though a larger amount of water has been adjudicated, the water right is subject to reduction if not applied for beneficial purposes. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

§ 41-4-323. Surplus water; senior priority.

When anyone has applied surplus water to beneficial use, as herein provided, he shall be entitled thereafter to divert and beneficially use his proportionate share thereof, and such diversion and beneficial use, when accomplished, is hereby declared to be an appropriation of such water, entitled to a priority senior to any water right acquired after March 1, 1945.

History. Laws 1945, ch. 153, § 7; C.S. 1945, § 71-222; W.S. 1957, § 41-187.

Plaintiff not injured by statute. —

It was impossible for plaintiff's post-March 1, 1945 water right to be injured by the Wyoming Surplus Water Law because he never obtained any right greater than the one authorized by the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Thus, no standing to challenge constitutionality. —

Since plaintiff could not attack the constitutionality of the Wyoming Surplus Water Law, ch. 153, Laws 1945, on the ground of injury to rights of others, and there was no injury to plaintiff's post-March 1, 1945, rights, since only prior appropriators, not subsequent ones, could be injured by the statute, plaintiff did not have standing to challenge the constitutionality of the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

The purpose and effect of the Wyoming Surplus Water Law, ch. 153, Laws 1945, was to define, limit and clearly provide for the vesting of the right to use the excess water by the several appropriators. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Interpretation applied to Wyoming Surplus Water Law statutory provisions by state officers. —

See Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Vesting of water rights. —

Water rights are real property rights which become vested as of the time the application for appropriation is filed, if the right is adjudicated. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Rights subject to those of prior appropriators. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

And limited to beneficial use. —

The water right of any appropriator is limited to beneficial use, and, even though a larger amount of water has been adjudicated, the water right is subject to reduction if not applied for beneficial purposes. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

§ 41-4-324. Surplus water; construction of W.S. 41-4-317 through 41-4-324.

Nothing in this act [§§ 41-4-317 through 41-4-324 ] shall be so construed as to permit, authorize or make lawful the diversion or taking of any water other than surplus water as herein defined.

History. Laws 1945, ch. 153, § 8; C.S. 1945, § 71-223; W.S. 1957, § 41-188.

Plaintiff not injured by statute. —

It was impossible for plaintiff's post-March 1, 1945 water right to be injured by the Wyoming Surplus Water Law because he never obtained any right greater than the one authorized by the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Thus, no standing to challenge constitutionality. —

Since plaintiff could not attack the constitutionality of the Wyoming Surplus Water Law, ch. 153, Laws 1945, on the ground of injury to rights of others, and there was no injury to plaintiff's post-March 1, 1945, rights, since only prior appropriators, not subsequent ones, could be injured by the statute, plaintiff did not have standing to challenge the constitutionality of the statute. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

The purpose and effect of the Wyoming Surplus Water Law, ch. 153, Laws 1945, was to define, limit and clearly provide for the vesting of the right to use the excess water by the several appropriators. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Interpretation applied to Wyoming Surplus Water Law statutory provisions by state officers. —

See Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Vesting of water rights. —

Water rights are real property rights which become vested as of the time the application for appropriation is filed, if the right is adjudicated. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Rights subject to those of prior appropriators. —

Pursuant to art. 8, § 2, Wyo. Const., and the statutes adopted by the Wyoming legislature, water rights are perfected by the filing of an application for a water permit which then is adjudicated to the applicant by the board of control after the board has determined that the applicant does have such a right by beneficial use. The right of a citizen of Wyoming to appropriate water for purposes of irrigation is defined and limited by these statutes. Each appropriator, in turn, takes his right subject to the right of any prior appropriators from the stream. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Rights limited to beneficial use. —

The water right of any appropriator is limited to beneficial use, and, even though a larger amount of water has been adjudicated, the water right is subject to reduction if not applied for beneficial purposes. Budd v. Bishop, 543 P.2d 368, 1975 Wyo. LEXIS 178 (Wyo. 1975).

Surplus Water Law cannot bestow junior appropriator status upon base right senior appropriator. —

Since a 1945 surplus water appropriation may not be abandoned for nonuse without abandoning the water right upon which it depends and to which it is attached, and since this section prohibits use of the surplus water provisions to attack base rights, the Surplus Water Law (§§ 41-4-317 to 41-4-324 ) may not be used for the purpose of bestowing junior appropriator standing upon a base right senior appropriator so that such senior appropriator may establish that he is “affected” within the purview of the abandonment statute (§ 41-3-401 ). Cremer v. State Bd. of Control, 675 P.2d 250, 1984 Wyo. LEXIS 241 (Wyo. 1984).

Law reviews. —

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

§ 41-4-325. Contents of certificate of priority; recording; fees; transmittal of appropriation; fees for proofs submitted at hearings; disposition.

As soon as practicable after the determination of the priorities of appropriation of the use of waters of any stream, it shall be the duty of the secretary to issue to each person, association or corporation represented in the determination a certificate to be signed by the president of the board of control, and attested under seal, setting forth the names and post office address of the appropriator; the priority date and number of the appropriation; the amount of water appropriated; and if the appropriation is for irrigation, a description of the legal subdivisions of land to which the water is to be applied. Certificates shall be transmitted to the county clerk of the county in which the appropriation shall have been made, and it shall be the duty of the county clerk upon receipt of the recording fee required by W.S. 18-3-402 to record the same in a book especially prepared and kept for that purpose, and thereupon immediately transmit the same to the respective appropriators. At the time of the submission of testimony to the division superintendent he shall collect for each proof taken a fee not to exceed fifty dollars ($50.00) which fee shall be transmitted to the secretary of the board of control together with the testimony and proofs of appropriation. The county recording fee shall be used as above provided and the remainder shall be credited to the general fund.

History. Laws 1890-91, ch. 8, § 26; 1895, ch. 62, § 6; 1899, ch. 79, § 2; R.S. 1899, § 873; Laws 1907, ch. 86, § 11; C.S. 1910, § 778; C.S. 1920, § 899; R.S. 1931, § 122-118; Laws 1937, ch. 99, § 1; C.S. 1945, § 71-224; W.S. 1957, § 41-189; Laws 1974, ch. 16, § 2; 1979, ch. 56, § 1; 1993, ch. 123, § 1.

General rules concerning necessary or proper parties apply. —

While this section speaks of the issuance of certificates of appropriation to each person “represented in such determination,” no fixed standards concerning necessary or proper parties are actually set forth and under such circumstances, general rules are usually applicable. Anita Ditch Co. v. Turner, 389 P.2d 1018, 1964 Wyo. LEXIS 83 (Wyo. 1964).

Adjudications presumed correct. —

The adjudications of the board are prima facie evidence of the correctness thereof on persons not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Adjudications by the board of control were presumed to be correct and prima facie evidence thereof even on those who were not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Legislature has no power to make adjudications by the board of control binding upon persons who were not parties to the proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Where board adjudicated priorities on a stream and tributary in separate proceedings, with appropriators on one stream who were not parties to the action respecting the other, it was held that the adjudications were sufficient to give power to water commissioner to divide the water between the streams, though the proceedings were not binding on those not parties. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

Where board adjudicated waters between two streams in separate proceedings, water commission had authority to divide the water between the two streams though the proceedings were not binding on persons on one stream who were not parties to the adjudication proceedings. Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, 1932 Wyo. LEXIS 31 (Wyo. 1932).

No presumption of equal shares of water to each piece of land. —

In absence of claims or proofs by landowners, decree adjudicating company's right to two appropriations of stated number of cubic feet of water per second from river for irrigation of specified acreage of land did not adjudicate equal proportionate shares of water to each piece of land designated. State v. Laramie Rivers Co., 59 Wyo. 9, 136 P.2d 487, 1943 Wyo. LEXIS 4 (Wyo. 1943).

Granting of permit determines priority. —

After a permit had been granted to a defendant's assignors to construct a ditch, plaintiff filed an application, which was not approved and in an action by plaintiff to enjoin the construction of defendant's ditch, plaintiff offered evidence to show a survey of his ditch and its partial construction the year before but such evidence was inadmissible to show priority of water right as no right could have been gained until a permit had been granted. Whalon v. North Platte Canal & Colonization Co., 11 Wyo. 313, 71 P. 995, 1903 Wyo. LEXIS 8 (Wyo. 1903).

Right to assert claim of priority in court. —

Where defendant acquired right of appropriation of certain water before adoption of constitution, the fact that he failed to present his claim of priority to the board of control, after notice of proceedings to establish such claims, will not estop him from asserting his right in district court, since proceedings of the board awarding priorities to others were not necessarily adverse to his claim, and hence not res judicata of his rights. Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 1900 Wyo. LEXIS 8 (Wyo. 1900).

Cited in

Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208, 79 P. 22, 1904 Wyo. LEXIS 39 , 70 L.R.A. 341 (1904).

Law reviews. —

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200 (1957).

§ 41-4-326. Conclusiveness of final decrees of board.

The final orders or decrees of the state board of control, in the proceedings provided by law for the adjudication and determination of rights to the use of the public waters of the state, shall be conclusive as to all prior appropriations, and the rights of all existing claimants upon the stream or other body of water lawfully embraced in the adjudication, subject, however, to the provisions of law for rehearings in such proceedings and for the reopening of the orders or decrees therein and for appeals from such orders or decrees.

History. Laws 1901, ch. 67, § 1; C.S. 1910, § 793; C.S. 1920, § 914; R.S. 1931, § 122-135; C.S. 1945, § 71-258; W.S. 1957, § 41-190.

Presumption of jurisdiction. —

Where recital appears in water right adjudication decree, by state board of control, that due notice had been given to interested parties, presumption will be indulged in favor of such inferior tribunal as obtains with respect of courts of general jurisdiction, to show jurisdiction of parties. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

No prescriptive rights to water. —

Since 1890 when water rights were required to be initiated by permit from the state engineer, it is settled that prescriptive right to state waters cannot obtain. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

All parties are bound by the adjudication. Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (Wyo. 1911).

Pleading rules. —

In an action not involving an ordinary adjudication between one or more parties, on the one hand, and one or more parties, on the other, the rules of pleading to ordinary extent cannot apply. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Collateral attack. —

An order for appropriation of water cannot be collaterally attacked by a stranger to the proceedings, for fraud in submission of proof. May v. Penton, 45 Wyo. 82, 16 P.2d 35, 1932 Wyo. LEXIS 50 (Wyo. 1932).

Showing of interest necessary to attack another's right. —

Before a party may attack right of another, either on constitutional or other grounds, he must show an interest which is affected, or a right invaded, which cannot obtain where plaintiff enjoys a decreed water right which cannot be enlarged. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Interest cannot be based on subsequently acquired rights. —

One who had no rights at the time an order is entered cannot complain on the ground of subsequently acquired rights. May v. Penton, 45 Wyo. 82, 16 P.2d 35, 1932 Wyo. LEXIS 50 (Wyo. 1932).

Estoppel from claiming greater rights. —

Section 41-4-310 estops water users under decrees of state board of control from claiming any other or greater rights than thereunder, hence in a suit to obtain enlarged rights not only the testimony offered, but that admitted, in support of the petition, was immaterial and had no tendency to establish any rights in the plaintiff. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Admission of photostats. —

Photostatic copies of pen and ink records of decrees in the board of control, showing nothing more suspicious than interlineations, interlineations will not prevent their admission as evidence, when properly certified, especially as they are what is called ancient documents. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Applied in

Big Goose & Beaver Ditch Co. v. Wallop, 382 P.2d 388, 1963 Wyo. LEXIS 93 (Wyo. 1963).

Quoted in

Petition for Change in Use & for Change in Place of Use for Ekxtrom No. 1 Well, etc. v. State Bd. of Control, 649 P.2d 657, 1982 Wyo. LEXIS 365 (Wyo. 1982).

Law reviews. —

For case note on Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 487 P.2d 324, 1971 Wyo. LEXIS 230 (Wyo. 1971), see VII Land & Water L. Rev. 599 (1972).

§ 41-4-327. Rehearing after final order of board.

After any final order of the board of control adjudicating the priorities upon any stream, any party interested therein may within one (1) year thereafter apply for a rehearing for reasons to be stated in the application; and upon the filing of such application, the secretary of the board shall mail written notice thereof to every other party interested, and therein fixing and stating a time when said application will be heard.

History. Laws 1895, ch. 62, § 9; R.S. 1899, § 883; C.S. 1910, § 788; C.S. 1920, § 909; R.S. 1931, § 122-128; C.S. 1945, § 71-233; W.S. 1957, § 41-191.

Applied in

John Meier & Son v. Horse Creek Conservation Dist., 603 P.2d 1283, 1979 Wyo. LEXIS 492 (Wyo. 1979).

§ 41-4-328. Authority to modify order and correct testimony.

Upon such hearing the board shall have authority to modify or alter the original order in such respect as shall appear just and proper. But it shall not be necessary for an application for rehearing to be filed to entitle any party to an appeal. Upon such hearing the board shall also have authority to permit, upon good cause shown, the correction of the testimony of any party or witness, if it shall appear that a mistake has occurred therein, but no other new evidence shall be received at such hearing unless it shall be shown to the satisfaction of the board that the same is material, and has been discovered since the taking of the original testimony and could not with reasonable diligence have been discovered before that time.

History. Laws 1895, ch. 62, § 9; R.S. 1899, § 884; C.S. 1910, § 789; C.S. 1920, § 910; R.S. 1931, § 122-129; C.S. 1945, § 71-234; W.S. 1957, § 41-192.

§ 41-4-329. Excess water; defined.

For the purpose of this act [§§ 41-4-329 through 41-4-331 ], excess water is hereby defined to be that quantity of water belonging to the state of Wyoming flowing in the natural channel of any main stream or a tributary of a main stream within the boundaries of Wyoming, at any time in excess of the total amount required to furnish to all existing appropriations from the stream system the maximum amount of water to which all appropriations are entitled, whether by permit or by adjudicated decree as of March 1, 1985.

History. Laws 1985, ch. 176, § 1.

§ 41-4-330. Excess water; rights of use generally.

1. A right to the use of excess water as defined by W.S. 41-4-329 in the amount of one (1) cubic foot per second for each seventy (70) acres of land having an adjudicated water right or a water right under permit, except those having a priority date prior to March 2, 1945, is hereby adjudicated to attach to all original direct flow water rights, and only on lands described in adjudicated appropriations of record in the office of the state board of control or under valid permits or filings of record in the office of the state engineer. The rights so adjudicated shall bear date of priority as of March 1, 1985. Rights unadjudicated shall acquire the excess right as the original is perfected.
2. Any permits issued or water rights granted in the state of Wyoming with a priority date after March 1, 1985, shall be subject to the adjudication of excess water as provided herein.

History. Laws 1985, ch. 176, § 1.

§ 41-4-331. Excess water; senior priority.

When anyone has applied excess water to beneficial use, as herein provided, he shall be entitled thereafter to divert and beneficially use his proportionate share thereof, and the diversion and beneficial use, when accomplished, is hereby declared to be an appropriation of the water, entitled to a priority senior to any water right acquired after March 1, 1985. The provisions of W.S. 41-4-321 through 41-4-324 shall apply to excess water in the same manner as it does to surplus water, except that excess water shall, pursuant to W.S. 41-4-323 , have a priority date of March 1, 1985. The term “surplus” in W.S. 41-4-324 shall apply to excess water under this act [§§ 41-4-329 through 41-4-331 ].

History. Laws 1985, ch. 176, § 1.

§ 41-4-401. Rights of appeal to district court.

Any party or number of parties acting jointly, who may feel themselves aggrieved by the determination of the board of control, may have an appeal from the board of control to the district court of the county in which the stream or streams, involved in such determination, may be situated, provided that in case the said stream or streams shall be situate in, and run through more than one (1) judicial district, or more than one (1) county, then, and in such case, it shall be the duty of the board of control, in making its determination, to designate the district court of the county, to which such appeal may be taken. All persons joining in the appeal shall be joined as appellants and all persons having interests adverse to the parties appealing, or either of them, shall be joined as appellees.

History. Laws 1890-91, ch. 8, § 27; R.S. 1899, § 874; Laws 1903, ch. 97, § 1; C.S. 1910, § 779; C.S. 1920, § 900; R.S. 1931, § 122-119; C.S. 1945, § 71-225; W.S. 1957, § 41-193.

Cross references. —

As to conclusiveness of final orders or decrees of state board of control, see § 41-4-326 .

As to limitation of time with reference to rehearings before state board of control after final order of board, see § 41-4-327 .

As to authority of board of control to modify order and correct testimony in connection with the adjudication of water rights, see § 41-4-328 .

As to judicial review of administrative action, see Rule 12, W.R.A.P.

The power of the board to adjudicate rights and priorities is concurrent with that of the courts. Anita Ditch Co. v. Turner, 389 P.2d 1018, 1964 Wyo. LEXIS 83 (Wyo. 1964).

Decisions rendered by the board are subject to review by the courts. Anita Ditch Co. v. Turner, 389 P.2d 1018, 1964 Wyo. LEXIS 83 (Wyo. 1964).

The method of appeal from board to district court is wholly statutory. Anita Ditch Co. v. Turner, 389 P.2d 1018, 1964 Wyo. LEXIS 83 (Wyo. 1964).

One not party in original action is not a necessary appellate party. —

Any person who is not a party in an original action is not a necessary party to an appeal, and any interpretation of the last sentence of this section may not be to the contrary. Anita Ditch Co. v. Turner, 389 P.2d 1018, 1964 Wyo. LEXIS 83 (Wyo. 1964).

Cited in

Bergman v. Kearney, 241 F. 884, 1917 U.S. Dist. LEXIS 1348 (D. Nev. 1917); Daley v. Anderson, 7 Wyo. 1, 48 P. 839, 1897 Wyo. LEXIS 5 (1897); In re Water Rights in Big Laramie River, 27 Wyo. 88, 192 P. 680, 1920 Wyo. LEXIS 28 (1920).

Law reviews. —

For article, “Administrative Procedure Aspects of the PLLRC Report,” see VI Land & Water L. Rev. 265 (1970).

§§ 41-4-402 through 41-4-405. [Repealed.]

Repealed by Laws 1985, ch. 191, § 2.

Editor's notes. —

These sections, which derived from Laws 1890-91, ch. 8, §§ 28 through 30, related to appeal procedures. For present similar provisions, see § 41-4-406 .

§ 41-4-406. Pleadings and practice.

All proceedings on appeal shall be conducted according to the provisions of the Wyoming Administrative Procedure Act and the Wyoming Rules of Appellate Procedure.

History. Laws 1890-91, ch. 8, § 30; 1895, ch. 62, § 8; R.S. 1899, § 878; C.S. 1910, § 783; C.S. 1920, § 904; R.S. 1931, § 122-123; C.S. 1945, § 71-229; W.S. 1957, § 41-198; W.S. 1977, § 41-4-406 ; Laws 1985, ch. 191, § 1.

Cross references. —

For the Code of Civil Procedure, see title 1.

Wyoming Administrative Procedure Act. —

See § 16-3-101(a), (b)(xi).

Quoted in

Anita Ditch Co. v. Turner, 389 P.2d 1018, 1964 Wyo. LEXIS 83 (Wyo. 1964).

Law reviews. —

For article, “Administrative Law, Wyoming Style,” see XVIII Land & Water L. Rev. 223 (1983).

§ 41-4-407. Procedure after judgment.

It shall be the duty of the clerk of the district court immediately upon the entry of any judgment, order or decree by the district court, or by the judge thereof, in an appeal from the decision of the board of control, to transmit a certified copy of said judgment, order or decree to the secretary of the state board of control. It shall be the duty of the secretary to immediately enter the same upon the records of such office, and the state engineer shall forthwith issue to the superintendent or superintendents of water divisions, instructions in compliance with the said judgment, order or decree, and in execution thereof.

History. Laws 1890-91, ch. 8, § 30; 1895, ch. 62, § 8; R.S. 1899, § 879; C.S. 1910, § 784; C.S. 1920, § 905; R.S. 1931, § 122-124; C.S. 1945, § 71-230; W.S. 1957, § 41-199.

§ 41-4-408. Costs; division of water pending appeal.

All costs made and accruing by reason of such appeal shall be adjudged to be paid by the party or parties against whom such appeal shall be finally determined. During the time an appeal from the order of the board of control is pending in the district court, and until a certified copy of the judgment, order or decree of the district court is transmitted to the state engineer, the division of water from the stream involved in such appeal shall be made in accordance with the order of the board of control.

History. Laws 1890-91, ch. 8, § 30; 1895, ch. 62, § 8; R.S. 1899, § 880; C.S. 1910, § 785; C.S. 1920, § 906; R.S. 1931, § 122-125; C.S. 1945, § 71-231; W.S. 1957, § 41-200.

§ 41-4-501. Permit required prior to construction of ditches, canals or other distributing works; contents of application; unlawful diversion or use of water prohibited; rulemaking authority.

1. Any person, association or corporation hereafter intending to acquire the right to the beneficial use of the public water of the state of Wyoming shall, before commencing the construction, enlargement or extension of any ditch, canal or other distributing works, or performing any work in connection with said construction, or proposed appropriation, make an application to the state engineer for a permit to make such appropriation. Such application shall set forth the name, email address, if any, and post-office address of the applicant, the source of the water supply, the nature of the proposed use, the location and description of the proposed ditch, canal or other work, the time within which it is proposed to begin construction, the time required for completion of construction and the time required for the complete application of the water to the proposed use. The application shall also state whether the applicant will opt for any notices issued under this article to be delivered only by electronic means. Each applicant shall maintain a current post-office address with the state engineer and shall maintain an email address with the state engineer if opting for notice only by electronic means under this subsection. Any person who shall willfully divert or use water to the detriment of others without compliance with law shall be deemed guilty of a misdemeanor punishable pursuant to W.S. 41-3-616 .
2. The state engineer may allow the application to be submitted electronically as provided by the Uniform Electronic Transactions Act, W.S. 40-21-101 through 40-21-119 .
3. The state engineer may adopt reasonable rules and regulations in accordance with the Wyoming Administrative Procedure Act as necessary to implement this section.
4. Any rules and regulations implementing this section or any predecessor to this section which were duly adopted according to the procedure for adoption at the time of adoption, which were effective as of July 1, 2008 and which have not been repealed or replaced as of July 1, 2008, are deemed to have been lawfully adopted in accordance with law and within the scope of the state engineer’s rulemaking authority.

History. Laws 1890-91, ch. 8, § 34; 1895, ch. 45, § 1; R.S. 1899, § 917; Laws 1907, ch. 86, § 13; C.S. 1910, § 727; C.S. 1920, § 835; R.S. 1931, § 122-404; C.S. 1945, § 71-238; W.S. 1957, § 41-201; Laws 2005, ch. 82, § 2; 2009, ch. 89, § 1; 2021 ch. 26, § 1, effective July 1, 2021.

The 2005 amendment, effective July 1, 2005, rewrote the last sentence, which formerly provided that on conviction of willful diversion or use of water to the detriment of others, a person could be fined up to $100 and/or imprisoned in the county jail for a term not exceeding six months, and that the possession or use of water, except when a right of use is acquired in accordance with law, was prima facie evidence of the guilt.

The 2009 amendment, effective July 1, 2009, added the (a) designation, and added (b) through (d).

The 2021 amendment, effective July 1, 2021, in the second sentence of (a), substituted "shall" for "must" following application, added ", email address, if any," and added the third and fourth sentences.

State owns water and controls use. —

Where original appropriation, which remains unchanged, was made as of 1893, to irrigate certain lands, a later use on other lands outside of specified perimeter, through a diversion from the original ditch, such affords no right, however claimed, as water belongs to the state and only use of it is granted appropriator in the manner and method specifically permitted. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939).

Only natural water can be appropriated. —

In view of art. 8, § 1, Wyo. Const., only waters of natural streams, springs or lakes are subject to appropriation. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

A “watercourse” is a stream of water usually flowing in a particular direction, with well defined banks and channels, but the water need not flow continuously, and the channel may sometimes be dry. State v. Hiber, 48 Wyo. 172, 44 P.2d 1005, 1935 Wyo. LEXIS 32 (Wyo. 1935).

Evidence failed to sustain state's contention that a draw is a natural stream, where it is dry most of the time, and is covered with grass, has no banks and, so far as evidence shows, has no natural outlet. State v. Hiber, 48 Wyo. 172, 44 P.2d 1005, 1935 Wyo. LEXIS 32 (Wyo. 1935).

Private water cannot be appropriated. —

Seepage and waste water is private water so long as it is on the lands from which it originates and such water cannot be appropriated by adjoining landowners. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

An attempted appropriation of waste and seepage waters, being private waters is void. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

Private water can become natural stream. —

Where during course of 30 years seepage water flowing down a draw finally made a regular, natural stream with definite channels and banks, waters thereof are subject to appropriation. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

No prescriptive rights to water. —

Since 1890 when water rights were required to be initiated by permit from state engineer, it is settled with us that prescriptive right to state waters cannot obtain. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Appropriation as property right. —

Where appropriation was made as of April, 1887, and adjudicated by decree before statehood in 1889, for 7.2 cu. ft. of water to irrigate an unspecified 90 acres of land, which, used on certain lands for some years, was, since 1930, transferred by use in part to other lands of same ownership, through an extension of original ditch, such appropriation, applied to a beneficial use, is a “property right,” and cannot be abridged without infringing upon constitutional right of the owner. Hughes v. Lincoln Land Co., 27 F. Supp. 972, 1939 U.S. Dist. LEXIS 2772 (D. Wyo. 1939).

A water right may not be initiated under this section except pursuant to a permit and the requirement of such permit is mandatory. Laramie Rivers Co. v. Levasseur, 65 Wyo. 414, 202 P.2d 680, 1949 Wyo. LEXIS 28 (Wyo. 1949).

Appropriation permit and application therefor to state engineer was condition precedent to lawful appropriation, notwithstanding art. 8, Wyo. Const., does not require such permit. Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (Wyo. 1925).

Where after a permit had been granted to defendant's assignors to construct a ditch, plaintiff filed an application, which was not approved and in an action by plaintiff to enjoin construction of defendant's ditch, plaintiff offered evidence to show a survey of his ditch and its partial construction the year before such evidence was not admissible to show priority of water right as no right could have been gained until a permit had been granted. Whalon v. North Platte Canal & Colonization Co., 11 Wyo. 313, 71 P. 995, 1903 Wyo. LEXIS 8 (Wyo. 1903).

Water permit is authority to pursue water right. —

A conditional but unfulfilled promise on the part of the state to allow the permittee to one day apply the state's water in a particular place and to a specific beneficial use under conditions where the rights of other appropriators will not be impaired. When the petitioner has complied with certain statutory requirements, the state's promise is directed by statute to be fulfilled with the issuing of a certificate of appropriation, the date of priority to be the date upon which the application for the permit was filed. Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983).

Permit for benefit of another. —

Statutory provision, that an application to state engineer for permit to make appropriation and acquire right to beneficial use of public waters, is not necessarily to be interpreted that application shall be for the benefit of applicant himself. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 1939 Wyo. LEXIS 37 (Wyo. 1939).

The fact that defendant's lands belonged to government when appropriation was taken out will not preclude assertion of right to use of water, if the lands were included in the appropriation and water beneficially applied to them. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939).

Permit application not necessarily for applicant's benefit. —

An application for a permit to appropriate water for irrigation pursuant to this section does not necessarily have to be for the benefit of the applicant. White v. Board of Land Comm'rs, 595 P.2d 76, 1979 Wyo. LEXIS 415 (Wyo. 1979).

Beneficial use. —

Beneficial use in the ultimate foundation of every water right under the priority of appropriation system prevailing in arid states. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939).

Initial filing sets priority. —

Where plaintiff's original application for permission for a reservoir was returned by the engineer for additional information, and a second application with such information was subsequently filed, the two applications were taken as one and applicant given all the benefit of his priority under the first filing. Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (Wyo. 1912).

Ex parte proceedings. —

Holder of certificate of appropriation could not, in ex parte proceeding before state board of control, obtain an adjudication clarifying the certificate by excluding from right to use water lands of others included in the description contained in the certificate. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939).

Showing of interest necessary to attack another's right. —

Before party may attack the right of another, either on constitutional or other grounds, he must show an interest which is affected, or a right invaded. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Water right attaches to land when finally adjudicated. —

A water right upon land, which is mentioned in the application and permit for appropriation, becomes attached to that land when it is finally adjudicated and cannot be subsequently severed from it or conveyed in derogation of the rights of the state. White v. Board of Land Comm'rs, 595 P.2d 76, 1979 Wyo. LEXIS 415 (Wyo. 1979).

Injunction. —

In suit to quiet title to certain irrigation waters, wherein defendant alleged right to use of water as result of continuous irrigation for more than 25 years, evidence precluded issuance of injunction restraining defendant from the further use thereof. Lincoln Land Co. v. Davis, 27 F. Supp. 1006, 1939 U.S. Dist. LEXIS 2789 (D. Wyo. 1939).

Abatement as nuisance. —

Dam more than ten feet high may be abated as nuisance even though it is not in natural stream, but only as to the excess and reasonably without infliction of unnecessary injury. State v. Hiber, 48 Wyo. 172, 44 P.2d 1005, 1935 Wyo. LEXIS 32 (Wyo. 1935).

Prior adjudication. —

Petition to intervene brought by irrigators to adjudicate water rights was properly dismissed by the district court, pursuant to Rule 12(b)(6), W.R.C.P., as the matter was barred by res judicata and the petition was untimely. The disputed reservoir certificates were previously adjudicated in 1963. In re General Adjudication of All Rights to use Water in the Big Horn River System, 2004 WY 21, 85 P.3d 981, 2004 Wyo. LEXIS 28 (Wyo. 2004).

Stated in

Wyoming v. United States, 933 F. Supp. 1030, 1996 U.S. Dist. LEXIS 11526 (D. Wyo. 1996).

Cited in

Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208, 79 P. 22, 1904 Wyo. LEXIS 39 , 70 L.R.A. 341 (1904); Hunt v. City of Laramie, 26 Wyo. 160, 181 P. 137, 1919 Wyo. LEXIS 5 (1919).

Law reviews. —

For article, “Rights of Wyoming Appropriators in Underground Water,” see 1 Wyo. L.J. 111.

For article, “Priority and Progress — Case Studies in the Transfer of Water Rights,” see I Land & Water L. Rev. 1 (1966).

For comment, “Water Appropriation for Recreation,” see I Land & Water L. Rev. 209 (1966).

For article, “Transfer of Water Rights — Errata and Addenda — Sales for Recreational Purposes and to Districts,” see II Land & Water L. Rev. 321 (1967).

For comment, “Improvement of Existing Water Rights Through Unification — A Case Study on the Consolidation of Appropriations,” see II Land & Water L. Rev. 327 (1967).

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

For article, “The Rise and Fall of Natural Resource Systems,” see VIII Land & Water L. Rev. 429 (1973).

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?” see X Land & Water L. Rev. 119 (1975).

For comment, “Forfeiture Proceedings in Wyoming Water Law: The Legislature Revives Private Standing,” see XX Land & Water L. Rev. 459 (1985).

For article, “Aldo Leopold and Western Water Law: Thinking Perpendicular to the Prior Appropriation Doctrine,” see XXIV Land & Water L. Rev. 1 (1989).

For case note, “Water Law — Quantification of Federal Reserve Indian Water Rights — ‘Practicably Irrigated Acreage’ Under Fire: The Search for a Better Legal Standard. In re General Adjudication of All Rights to Use Water in Big Horn River Sys., 753 P.2d 76, 1988 Wyo. LEXIS 26 (Wyo. 1988), aff'd, 492 U.S. 406, 106 L. Ed. 2d 342, 109 S. Ct. 2994, 1989 U.S. LEXIS 3173 (1989), cert. denied, 492 U.S. 926, 109 S. Ct. 3265, 106 L. Ed. 2d 610, 1989 U.S. LEXIS 3337 (1989), overruled on other grounds, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998),” see XXV Land & Water L. Rev. 417 (1990).

§ 41-4-502. Application for permit to acquire right to beneficial use of public water; duty of state engineer upon receipt; use for irrigation purposes; defective applications; corrections; cancellation; extensions.

On receipt of an application for a permit to acquire the right to the beneficial use of the public water of the state of Wyoming, which application shall be on a form prescribed or designated by the state engineer, it is the state engineer’s duty to date the application and to make a record of receipt of the application in his office. It is the state engineer’s duty to examine all applications to ascertain that they contain all the necessary information to show the location, nature and amount of the proposed beneficial use. If the proposed beneficial use is for irrigation purposes, the application shall give the total acreage to be irrigated and the acreage in each legal subdivision of land proposed to be irrigated. If, upon such examination, an application submitted in hard copy is found defective, it is the duty of the state engineer to return the application for correction, with reasons therefor, and the time allowed within which to make such corrections, which shall not be less than ninety (90) days, shall be endorsed on the application, or by correspondence accompanying the return of the application, and a record made thereof. A like record shall be kept of the date of the return of corrected applications, and of the date of the refusal and return of applications rejected. If the application is submitted in hard copy, the defective application shall be returned by United States postal service or by other generally accepted mail delivery method to the post-office address given by the applicant. If the application is submitted electronically, the defective application shall be returned electronically. If, at the expiration of the time allowed within which to make such corrections, the application has not been returned to the office of the state engineer with the corrections properly made, it is the duty of the state engineer to cancel the filing covered by the application. The state engineer, if in his opinion an extension is justified, or, upon request by the applicant for good cause shown, shall grant extensions of time for making corrections. However, extensions will not be granted if the request for the extension is received after the expiration of the time period the applicant seeks to extend.

History. Laws 1890-91, ch. 8, § 34; 1895, ch. 45, § 1; R.S. 1899, § 918; C.S. 1910, § 728; Laws 1915, ch. 26, § 1; C.S. 1920, § 836; R.S. 1931, § 122-405; C.S. 1945, § 71-239; W.S. 1957, § 41-202; Laws 1969, ch. 147, § 1; 1980, ch. 67, § 1; 2005, ch. 15, § 2; 2021 ch. 26, § 1, effective July 1, 2021.

The 2005 amendment, effective July 1, 2005, in the first sentence inserted “or designated” and deleted “in a suitable book” preceding “in his office”; rewrote the fourth sentence; and inserted the present sixth sentence.

The 2021 amendment, effective July 1, 2021, substituted "United States postal service or by other generally accepted mail delivery method to the post-office address given by the applicant" for "certified mail, requesting return receipt" at the end of the sixth sentence.

Appropriation cannot be made except by securing permit in conformity with statute. Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (Wyo. 1925).

Direct flow rights. —

When legislature first enacted this section in 1895, it was legislating for permits relative to direct flow of stream rights and not concerning storage and reservoir rights. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Applied in

Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983).

Cited in

Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911); Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912).

Law reviews. —

For article, “Record Title of Water and Ditch Rights,” see 6 Wyo. L.J. 200 (1957).

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?” see X Land & Water L. Rev. 119 (1975).

For article, “Industrial Siting Legislation: The Wyoming Industrial Development Information and Siting Act — Advance or Retreat?” see XI Land & Water L. Rev. 27 (1976).

For case note, “Water Law — The State Engineer's Authority with Reference to Change of Use, Place of Use, Point of Diversion, and Means of Conveyance of Water Embraced by Water Permits. Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983),” see XIX Land & Water L. Rev. 59 (1984).

For comment, “Forfeiture Proceedings in Wyoming Water Law: The Legislature Revives Private Standing,” see XX Land & Water L. Rev. 459 (1985).

For case note, “Water Law — Quantification of Federal Reserve Indian Water Rights — ‘Practicably Irrigated Acreage’ Under Fire: The Search for a Better Legal Standard. In re General Adjudication of All Rights to Use Water in Big Horn River Sys., 753 P.2d 76, 1988 Wyo. LEXIS 26 (Wyo. 1988), aff'd, 492 U.S. 406, 106 L. Ed. 2d 342, 109 S. Ct. 2994, 1989 U.S. LEXIS 3173 (1989), cert. denied, 492 U.S. 926, 109 S. Ct. 3265, 106 L. Ed. 2d 610, 1989 U.S. LEXIS 3337 (1989), overruled on other grounds, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998), aff'd mem. sub nom. Wyoming v. United States, 492 U.S. 406, 106 L. Ed. 2d 342, 109 S. Ct. 2994, 1989 U.S. LEXIS 3173 (1989),” see XXV Land & Water L. Rev. 417 (1990).

§ 41-4-503. Recordation; approval or rejection generally.

All applications which shall comply with the provisions of this chapter, and with the regulations of the engineer’s office, shall be recorded in a suitable book kept for that purpose; and it shall be the duty of the state engineer to approve all applications made in proper form, which contemplate the application of the water to a beneficial use and where the proposed use does not tend to impair the value of existing rights, or be otherwise detrimental to the public welfare. But where there is no unappropriated water in the proposed source of supply, or where the proposed use conflicts with existing rights, or threatens to prove detrimental to the public interest, it shall be the duty of the state engineer to reject such application and refuse to issue the permit asked for.

History. Laws 1890-91, ch. 8, § 34; 1895, ch. 45, § 1; R.S. 1899, § 919; C.S. 1910, § 729; C.S. 1920, § 837; R.S. 1931, § 122-406; C.S. 1945, § 71-240; W.S. 1957, § 41-203.

Appropriation of water seeping from canal. —

Application for appropriation of waters seeping on to a farmer's land from a water association canal by means of drains erected by the farmer may be denied if the drain ditch tends to deplete waters being transported in the canal, but if the drain ditch gathers seepage which is uncaptured by the canal owner and which would naturally reach a stream, the water is appropriable as being a part of the stream to which it flows. Bower v. Big Horn Canal Ass'n, 77 Wyo. 80, 307 P.2d 593, 1957 Wyo. LEXIS 10 (Wyo. 1957).

A permit was properly granted to plaintiff for the appropriation of waters seeping from defendant water association's canal onto plaintiff's land; but any rights plaintiff secured thereby were subject, of course, to the right of defendant to terminate that source of the supply, which seeped directly from defendant's canal, and subject also to the rights of prior appropriators further down the stream, if they could prove that interception of the water materially damaged their prior rights. Plaintiff's right was, however, superior to any claims of subsequent appropriators. Bower v. Big Horn Canal Ass'n, 77 Wyo. 80, 307 P.2d 593, 1957 Wyo. LEXIS 10 (Wyo. 1957).

Speculation is issue during an application proceeding, pursuant to this section, and during the final stages leading to a certificate of appropriation, pursuant to § 41-4-511 , and it may also be an issue during an abandonment proceeding, pursuant to § 41-3-401 .Denius v. T R Twelve, Inc., 589 P.2d 374, 1979 Wyo. LEXIS 345 (Wyo. 1979).

Claimed water rights not relitigated. —

Holders of vested senior water rights cannot, in a proceeding contemplated by the extension-of-time statute (§ 41-4-506 ), litigate claimed rights conceived by the original reservoir permit approval-or-rejection statute (this section). Associated Enters. v. Toltec Watershed Improvement Dist., 578 P.2d 1359, 1978 Wyo. LEXIS 293 (Wyo. 1978).

Petition to intervene brought by irrigators to adjudicate water rights was properly dismissed by the district court, pursuant to Rule 12(b)(6), W.R.C.P., as the matter was barred by res judicata and the petition was untimely. The disputed reservoir certificates were previously adjudicated in 1963. In re General Adjudication of All Rights to use Water in the Big Horn River System, 2004 WY 21, 85 P.3d 981, 2004 Wyo. LEXIS 28 (Wyo. 2004).

Applied in

Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983).

Stated in

Wyoming v. United States, 933 F. Supp. 1030, 1996 U.S. Dist. LEXIS 11526 (D. Wyo. 1996).

Cited in

Whalon v. North Platte Canal & Colonization Co., 11 Wyo. 313, 71 P. 995, 1903 Wyo. LEXIS 8 (1903); Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912); Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (1925).

Law reviews. —

For comment, “‘It's Our Water!’ — Can Wyoming Constitutionally Prohibit the Exportation of State Waters?” see X Land & Water L. Rev. 119 (1975).

For comment, “The Idaho and Montana Procedures for Obtaining Water Use Permits — Possible Sources for Improvement of Wyoming Law,” see X Land & Water L. Rev. 435 (1975).

For article, “Industrial Siting Legislation: The Wyoming Industrial Development Information and Siting Act — Advance or Retreat?” see XI Land & Water L. Rev. 27 (1976).

For comment, “Sporhase v. Nebraska ex rel. Douglas: State Control of Water Under the Constraints of the Commerce Clause,” see XVIII Land & Water L. Rev. 513 (1983).

For comment, “Forfeiture Proceedings in Wyoming Water Law: The Legislature Revives Private Standing,” see XX Land & Water L. Rev. 459 (1985).

§ 41-4-504. Endorsement by state engineer; return to applicant; effect of approval or rejection.

The refusal or approval of an application shall be endorsed thereon and a record made of such endorsement in the state engineer’s office. The application so endorsed shall be returned to the applicant. If approved, the applicant shall be authorized, on receipt thereof, to proceed with the construction of the necessary works, and to take all steps required to apply the water to a beneficial use, and to perfect the proposed appropriation. If the application is refused, the applicant shall take no steps toward the prosecution of the proposed work, or the diversion and use of the public water so long as such refusal shall continue in force. Any violation of this section, unless exempt under W.S. 41-3-301 , shall be punishable pursuant to W.S. 41-3-616(a).

History. Laws 1890-91, ch. 8, § 34; 1895, ch. 45, § 1; R.S. 1899, § 920; C.S. 1910, § 730; C.S. 1920, § 838; R.S. 1931, § 122-407; C.S. 1945, § 71-241; W.S. 1957, § 41-204; Laws 2005, ch. 82, § 2.

The 2005 amendment, effective July 1, 2005, added the last sentence.

Prior adjudication. —

Petition to intervene brought by irrigators to adjudicate water rights was properly dismissed by the district court, pursuant to Rule 12(b)(6), W.R.C.P., as the matter was barred by res judicata and the petition was untimely. The disputed reservoir certificates were previously adjudicated in 1963. In re General Adjudication of All Rights to use Water in the Big Horn River System, 2004 WY 21, 85 P.3d 981, 2004 Wyo. LEXIS 28 (Wyo. 2004).

Right to appeal. —

Applicant's right to appeal, given under § 41-4-517 , does not mature upon the engineer's return of the application for additional information. Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (Wyo. 1912).

Applied in

Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983).

Cited in

Whalon v. North Platte Canal & Colonization Co., 11 Wyo. 313, 71 P. 995, 1903 Wyo. LEXIS 8 (1903); Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911); Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (1925).

§ 41-4-505. Additional information before approval or rejection.

1. Before either approving or rejecting an application, the state engineer may require such additional information as will enable him to properly guard the public interests, and may, in the case of applications proposing to divert more than twenty-five (25) cubic feet of water per second of time, or to reclaim over one thousand (1,000) acres of land, require a statement of the following facts:
   1. In case of incorporated companies, he may require the submission of the articles of incorporation, the names and places of residence of its directors and officers, and the amount of its authorized and of its paid up capital;
   2. If the applicant is not an incorporated company, he may require a showing as to the name or names of the party or parties proposing to construct the work, and a showing of facts necessary to enable him to determine whether or not they have the financial ability to carry out the proposed work, and whether or not the said application has been made in good faith.

History. Laws 1890-91, ch. 8, § 34; 1895, ch. 45, § 1; R.S. 1899, § 921; C.S. 1910, § 731; C.S. 1920, § 839; R.S. 1931, § 122-408; C.S. 1945, § 71-242; W.S. 1957, § 41-205.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Cited in

Whalon v. North Platte Canal & Colonization Co., 11 Wyo. 313, 71 P. 995, 1903 Wyo. LEXIS 8 (1903); Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912); Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (1925).

Law reviews. —

For article, “Industrial Siting Legislation: The Wyoming Industrial Development Information and Siting Act — Advance or Retreat?” see XI Land & Water L. Rev. 27 (1976).

For comment, “Forfeiture Proceedings in Wyoming Water Law: The Legislature Revives Private Standing,” see XX Land & Water L. Rev. 459 (1985).

§ 41-4-506. Time limits for completing construction work; extensions; forfeiture of rights; cancellation of permit; notice of date of expiration to appropriator.

Whenever the state engineer places his endorsement of approval on any application for a water permit, he shall require that actual construction work be completed within the time set by him in the permit. The time set for completion shall not exceed a period of five (5) years after the date of approval of application. In the case of an application for a ditch permit, he shall further require that the application of the water to beneficial use must be completed before the date which he shall specify, and which shall not be earlier than the date specified for the completion of construction; and that final proof of appropriation must be submitted within five (5) years after the date specified for the completion of the application of the water to beneficial use. He may limit the application to a less period of time for the completion of construction and application of water to beneficial use than is asked for in the application. For good cause shown, the state engineer may at any time, or from time to time, before the date of expiration, extend any or all of these periods. An extension of time for compliance with any of the specified requirements shall be construed to automatically extend for a like period the time for compliance with any of the specific requirements in relation to which the time expires thereafter. Default by the holder of the permit in any of the specified requirements shall work a forfeiture of the water right involved. The state engineer may upon such default cancel the permit. The state engineer shall, at least three (3) months before default in any of these requirements shall be operative, notify the permit holder when the time allowed will expire. Notification may be delivered by United States postal service, by other generally accepted mail delivery method to the post-office address given by the permit holder or by email or other electronic means that provides actual notice to the permit holder. If the permit holder cannot be reached mail or by email the state engineer shall notify the permit holder by certified mail to the permit holder's last known address and shall publish notice of the default on the state engineer's official website and for three (3) weeks in a newspaper of general circulation published in the county, or in case there is no newspaper of general circulation published in the county, then in a newspaper published in the state of Wyoming and in general circulation in the county, the last publication to be at least two (2) months before cancellation of the permit.

History. Laws 1890-91, ch. 8, § 34; 1895, ch. 45, § 1; R.S. 1899, § 922; C.S. 1910, § 732; Laws 1917, ch. 119, § 1; 1919, ch. 18, § 1; C.S. 1920, § 840; Laws 1921, ch. 23, § 1; 1923, ch. 7, § 1; R.S. 1931, § 122-409; Laws 1937, ch. 80, § 1; 1941, ch. 21, § 1; C.S. 1945, § 71-243; W.S. 1957, § 41-206; Laws 1973, ch. 131, § 1; 1995, ch. 102, § 1; 2021 ch. 26, § 1, effective July 1, 2021.

Cross references. —

As to final proof of appropriation and as to procedures generally, see § 41-4-511 .

The 2021 amendment, effective July 1, 2021, in the eighth sentence, deleted "by registered mail, with a return receipt requested" preceding "at least three" and ", at the post-office address given by him" following "permit holder," added the ninth sentence, in the last sentence, substituted "mail or by email" for "registered mail, or if the address of the permit holder is unknown," and added "notify the permit holder by certified mail to the permit holder's last known address and shall" and "on the state engineer's official website and."

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Granting of extension of time under this section does not violate eminent domain provisions of the Wyoming constitution. Denius v. T R Twelve, Inc., 589 P.2d 374, 1979 Wyo. LEXIS 345 (Wyo. 1979).

Only substantive issue to be decided in questions arising out of an application for an extension of time under this section is whether or not good cause for the extension has been shown by the applicant: that means, has the applicant shown the state engineer good cause why he could not start and complete the reservoir within the original permit period or an extension thereof? Denius v. T R Twelve, Inc., 589 P.2d 374, 1979 Wyo. LEXIS 345 (Wyo. 1979).

The sole criterion for extending the time periods called for in this section is whether the permittee has shown good cause for the extension. Associated Enters. v. Toltec Watershed Improvement Dist., 578 P.2d 1359, 1978 Wyo. LEXIS 293 (Wyo. 1978).

Genesis for issue eligible for consideration under this section is diligence. Denius v. T R Twelve, Inc., 589 P.2d 374, 1979 Wyo. LEXIS 345 (Wyo. 1979).

Diligence defined. —

The diligence required in the prosecution of the construction of all works necessary for the diversion and application of water in an attempted appropriation of the same is that constancy or steadfastness of purpose or labor which is usual with men engaged in like enterprises, and who desire a speedy accomplishment of their designs. Denius v. T R Twelve, Inc., 589 P.2d 374, 1979 Wyo. LEXIS 345 (Wyo. 1979).

Determination of diligence is factual in nature and is to be determined from the circumstances surrounding each particular case. Associated Enters. v. Toltec Watershed Improvement Dist., 578 P.2d 1359, 1978 Wyo. LEXIS 293 (Wyo. 1978).

Where litigation has unavoidably delayed construction and completion of reservoir, the facts are, within the discretion of the state engineer, sufficient to constitute good cause for granting permittee an extension of time. Associated Enters. v. Toltec Watershed Improvement Dist., 578 P.2d 1359, 1978 Wyo. LEXIS 293 (Wyo. 1978); Denius v. T R Twelve, Inc., 589 P.2d 374, 1979 Wyo. LEXIS 345 (Wyo. 1979).

Right of entry obtained by grant or condemnation. —

An extension of time within which to construct a reservoir does not carry with it a right of entry, as the right of entry, the easement, must be obtained by grant or condemnation. Associated Enters. v. Toltec Watershed Improvement Dist., 578 P.2d 1359, 1978 Wyo. LEXIS 293 (Wyo. 1978).

Matters not considered in application for extension. —

Such matters as the effect of the construction of a reservoir upon existing water rights is outside the ken of an application for an extension of time under this section. Denius v. T R Twelve, Inc., 589 P.2d 374, 1979 Wyo. LEXIS 345 (Wyo. 1979).

Claimed water rights not relitigated. —

Holders of vested senior water rights cannot, in a proceeding contemplated by this section, litigate claimed rights conceived by the original reservoir permit approval-or-rejection statute (§ 41-4-503 ). Associated Enters. v. Toltec Watershed Improvement Dist., 578 P.2d 1359, 1978 Wyo. LEXIS 293 (Wyo. 1978).

Abandonment. —

In order that an initiated inchoate water right may be held to be abandoned, such intention must be shown. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Laches. —

Where suits to quiet title to water rights in Little Laramie River were started in 1932 attacking appropriation claimed by defendant under an adjudication by board of control in 1903, the attack was at least on largest part of defendant's appropriation barred by laches. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Speculative profit. —

If state engineer and board of control do their duty, as the court presumes they do, as to maps of lands to be irrigated and time within which appropriation must be completed, no one should be able to secure any part of it for speculative profit. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 1939 Wyo. LEXIS 37 (Wyo. 1939).

Applied in

Snake River Land Co. v. State Bd. of Control, 560 P.2d 733, 1977 Wyo. LEXIS 234 (Wyo. 1977); Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983); In re General Adjudication of All Rights to Use Water in Big Horn River Sys., 2002 WY 89, 2002 Wyo. LEXIS 93 , 48 P.3d 1040 (Wyo. 2002).

Cited in

Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912); Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (1925); John Meier & Son v. Horse Creek Conservation Dist., 603 P.2d 1283, 1979 Wyo. LEXIS 492 (Wyo. 1979).

Law reviews. —

For article, “The Disparity Between State Water Rights Records and Actual Water Use Patterns,” see V Land & Water L. Rev. 23 (1970).

For comment, “The Idaho and Montana Procedures for Obtaining Water Use Permits — Possible Sources for Improvement of Wyoming Law,” see X Land & Water L. Rev. 435 (1975).

For case note, “Water Law — The State Engineer's Authority with Reference to Change of Use, Place of Use, Point of Diversion, and Means of Conveyance of Water Embraced by Water Permits. Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983),” see XIX Land & Water L. Rev. 59 (1984).

For article, “Wyoming's Groundwater Laws: Quantity and Quality Regulation,” see XXIV Land & Water L. Rev. 39 (1989).

§ 41-4-507. Maps and plats; when required with application; contents; format requirements; copies; duties of state engineer generally.

1. Each application for a permit to appropriate waters for beneficial uses under a project embracing the major irrigable portion of an entire drainage basin within the limits of this state which has been approved by either state or federal agencies for development and construction in subdivisions as the result of preliminary investigations must be accompanied by a map or plat made by or under the responsible charge of a professional engineer or professional land surveyor and be signed by and bear the seal of the professional engineer or professional land surveyor. The map or plat shall be on a scale to conform to the regulations of the state engineer, showing the approximate location of all streams, proposed reservoirs, main canals and the other data required under the terms of W.S. 41-3-301 , together with the approximate location and area of the lands to be irrigated and approximate capacity of each of the reservoirs to be constructed. It shall be the duty of the state engineer to approve any such application made in conformity herewith which contemplates the application of the water of a drainage basin to the beneficial use of a major irrigable portion thereof where the proposed use does not tend to impair the value of existing rights, or to be otherwise detrimental to the public welfare; provided, however, that any permit for appropriation of waters for beneficial uses upon the irrigable lands designated in such a drainage basin project application, must be conditioned for the submission to the state engineer of detailed maps, plans and specifications applicable to a single subdivision of the project and the approval thereof by the state engineer, prior to the commencement of the construction of any such subdivisions; provided further that such subdivision maps, plans and specifications shall conform to the requirements hereinafter set forth as applicable to other applications not embracing the major irrigable portion of an entire drainage basin.
2. Except for applications made pursuant to subsection (a) or (c) of this section, every other application for a permit to appropriate water for beneficial uses must be accompanied by a map or plat, showing accurately the location and extent of the proposed work. The maps or plats must be on a scale to conform to the regulations of the state engineer and be made by or under the responsible charge of a professional engineer or professional land surveyor and be signed by and bear the seal of the professional engineer or professional land surveyor; they must show the location of the headgate or point of diversion by courses and distances from some government corner; they must show the actual location of the ditch or canal, or water line of the reservoir, and must show, wherever section lines are crossed, the distance to the nearest government corner. The map or plat must show the course of the river, stream or other source of supply; the location and area of all lands proposed to be reclaimed; the position and area of all reservoirs or basins intended to be created for the purpose of storing water; the location of the intersection with all other ditches, canals, laterals or reservoirs which are caused by this work, or with which connections are made. These maps must contain the name of the proposed work, and, where possible, the number of the permit. They must in addition, have the name or names of the applicant or applicants and the certificate of the engineer or surveyor, giving the date of survey, his name and address.
3. Notwithstanding subsections (a) and (b) of this section, an application and accompanying maps, plans, plats and designs filed in the state engineer’s office shall comply with the requirements of W.S. 33-29-801(a)(ii) through (iv) and subsections (d) and (e) of this section when the application is to:
   1. Construct small reservoirs for stock or other beneficial uses where the capacity of the reservoir does not exceed twenty (20) acre feet or twenty (20) feet in dam height;
   2. Develop springs for any beneficial use up to twenty-five (25) gallons per minute; or
   3. Construct flood water detention dams storing fifty (50) acre feet or less and not to exceed twenty (20) feet in height provided the dam has a minimum outlet of eighteen (18) inches diameter and the dead storage does not exceed twenty (20) acre feet.
4. An application made pursuant to subsection (c) of this section shall be signed by the applicant or an agent acting for him and shall be accompanied, at a minimum, by aerial photographs, digital imagery or United States geological survey quadrangle maps, of a scale provided by Wyoming board of professional engineers and professional land surveyors rule, with designation of the township, range, section and section corner or quarter corner and the location of the installation designated in the quarter section on the photographs or United States geological survey quadrangle maps and a description of:
   1. The dam including height, width, depth, construction materials, depth to be submerged and height of the free board; and
   2. The reservoir including length, width, average depth, submerged area and capacity.
5. Aerial photographs, digital imagery or United States geological survey quadrangle maps accompanying an application made pursuant to subsection (c) of this section shall comply with the following requirements:
   1. Two (2) aerial photographs, digital images or United States geological survey quadrangle maps shall accompany each application;
   2. The scale on the aerial photographs, digital imagery or United States geological survey quadrangle maps shall not be less than two (2) inches to the mile;
   3. An identified section corner or quarter corner shall be shown on each aerial photograph, digital image or United States geological survey quadrangle map;
   4. The entire section in which the facility is located shall be shown on each aerial photograph, digital image or United States geological survey quadrangle map along with subdivision lines showing forty (40) acre tracts; and
   5. The location of the facility shall be shown within the proper forty (40) acre subdivision.
6. The state engineer may adopt rules and regulations which provide exceptions to the filing requirements of subsections (a) and (b) of this section for projects for which, because of the size, nature or location, an exception would not impede upon public safety or the integrity of a water right. The exceptions provided pursuant to this subsection shall be in addition to the exceptions provided in subsection (c) of this section.

History. Laws 1890-91, ch. 8, § 35; 1895, ch. 45, § 2; R.S. 1899, § 924; C.S. 1910, § 734; C.S. 1920, § 842; R.S. 1931, § 122-411; Laws 1939, ch. 68, § 1; C.S. 1945, § 71-245; W.S. 1957, § 41-207; Laws 2005, ch. 15, § 2; 2017 ch. 43, § 1, effective July 1, 2017.

The 2005 amendment, effective July 1, 2005, in (a), deleted “in duplicate, the original of which shall be on tracing linen” following “a map or plat” in the first sentence; and in (b), deleted “in duplicate” following “map or plat”, “the original of these” preceding “maps or plats” and “on tracing linen” following “must be drawn.”

The 2017 amendment , effective July 1, 2017, in (a), inserted “made by or under the responsible charge of a professional engineer or professional land surveyor and be signed by and bear the seal of the professional engineer or professional land surveyor. The map or plat shall be” and made a related and stylistic change; in (b), inserted “Except for applications made pursuant to subsection (a) or (c) of this section” at the beginning, inserted “and be made by or under the responsible charge of a professional engineer or professional land surveyor and be signed by and bear the seal of the professional engineer or professional land surveyor”, and made a related and stylistic change; and added (c) through (f).

This section is not to be construed too rigidly in connection with maps and plans. Laramie Rivers Co. v. Levasseur, 65 Wyo. 414, 202 P.2d 680, 1949 Wyo. LEXIS 28 (Wyo. 1949).

The requirement of this section relating to the filing of maps and plats is for administrative purposes on the part of public officials and in special cases to protect the public. The supreme court considered that plaintiff, in the case before it, had no right to raise objections in that connection unless it had a special interest therein and was harmed or injured. Laramie Rivers Co. v. Levasseur, 65 Wyo. 414, 202 P.2d 680, 1949 Wyo. LEXIS 28 (Wyo. 1949).

This section does not prohibit amendments and changes in the map, in the plans, and in the irrigation works, during construction, at least where the changes are not unreasonable and are made with the approval of the state engineer and prior to the time that another party initiates an appropriation from the same source. Laramie Rivers Co. v. Levasseur, 65 Wyo. 414, 202 P.2d 680, 1949 Wyo. LEXIS 28 (Wyo. 1949).

Purpose of filings. —

Act of 1886 which provided for filing of statements by ditch owners or claimants was for purpose of establishing record of claims of water users to protect them in their rights, assist in adjudicating priorities and in regulation for use of the water. Nichols v. Hufford, 21 Wyo. 477, 133 P. 1084, 1913 Wyo. LEXIS 31 (Wyo. 1913).

Prior appropriation. —

Right to use of water for beneficial purposes depends upon prior appropriation and it existed before there was any legislation upon the subject. Moyer v. Preston, 6 Wyo. 308, 44 P. 845, 1896 Wyo. LEXIS 17 (Wyo. 1896).

Speculative profit. —

If state engineer and board of control do their duty, as the court presumes they do, as to maps of lands to be irrigated and time within which appropriation must be completed, no one should be able to secure any part of it for speculative profit. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 1939 Wyo. LEXIS 37 (Wyo. 1939).

Waste or seepage water. —

The words “waste and seepage water” written on a map accompanying application for permit to appropriate water are equivalent to direct statement that applicant wanted to appropriate waste waters and not water from a natural stream. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54, 1940 Wyo. LEXIS 20 (Wyo. 1940).

Applied in

Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 1983 Wyo. LEXIS 288 (Wyo. 1983).

Cited in

Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208, 79 P. 22, 1904 Wyo. LEXIS 39 , 70 L.R.A. 341 (1904); Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911); Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912); Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, 1925 Wyo. LEXIS 25 (1925).

Law reviews. —

For article, “Industrial Siting Legislation: The Wyoming Industrial Development Information and Siting Act — Advance or Retreat?” see XI Land & Water L. Rev. 27 (1976).

§ 41-4-508. Maps and plats; examination; approval; filing; return of copy.

It shall be the duty of the state engineer to examine these maps or plats and to ascertain if they agree with the description contained in the application, and when found to agree, or made to agree, to approve the same, file one (1) copy in his office and return the other, approved, to the party filing them. These maps or plats may be received and maintained by the state engineer in an electronic format.

History. Laws 1890-91, ch. 8, § 35; 1895, ch. 45, § 2; R.S. 1899, § 925; C.S. 1910, § 735; C.S. 1920, § 843; R.S. 1931, § 122-412; C.S. 1945, § 71-246; W.S. 1957, § 41-208; Laws 2005, ch. 15, § 2.

The 2005 amendment, effective July 1, 2005, inserted the final sentence.

Cited in

Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911); Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912).

§ 41-4-509. Maps and plats; additional information; longitudinal profiles of ditches.

In case of ditches or canals carrying more than fifty (50) cubic feet of water per second, the engineer may require, in addition to the maps or plats above described, the following: a longitudinal profile of the ditch showing the bottom and proposed water line; the horizontal scale of this line shall not be less than one (1) inch to one thousand (1,000) feet, and the vertical scale not less than one (1) inch to twenty (20) feet. If submitted electronically, the file shall be capable of reproduction at these scales.

History. Laws 1890-91, ch. 8, § 35; 1895, ch. 45, § 2; R.S. 1899, § 926; C.S. 1910, § 736; C.S. 1920, § 844; R.S. 1931, § 122-413; C.S. 1945, § 71-247; W.S. 1957, § 41-209; Laws 2005, ch. 15, § 2.

The 2005 amendment, effective July 1, 2005, inserted the final sentence.

Cited in

Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911); Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912).

§ 41-4-510. Maps and plats; additional information; cross section plans; plans of obstructions; reservoir specifications; field notes.

The engineer may require, in addition to the maps and plats above described, a plan showing cross sections at a sufficient number of points to show the different forms which the ditch, when completed, will take, and showing what proportion of the water is to be conveyed in excavation and what proportion to be conveyed in fill. These plans shall be drawn, or be capable of being drawn and printed if submitted electronically, on a horizontal and vertical scale of one (1) inch to twenty (20) feet. Plans of any dams, cribs, embankments or other proposed work to obstruct any river, stream, lake or pond, or other source of water supply, shall be drawn on a longitudinal scale of not less than one (1) inch to two hundred (200) feet, and for cross sections on a scale of not less than one (1) inch to twenty (20) feet; and shall show what material is intended to be used and placed in such work. Timber, brush, stone or other material except earth used in such works shall be shown in detail on a plan, the scale of which shall not be less than one (1) inch to four (4) feet. The maps of all proposed reservoirs shall show the surface of the ground under water, and a sufficient number of lines of level shall be shown so that the contents of the reservoir or basin may be approximately determined. If the levels shall be shown by contour lines they shall be on a scale sufficiently large to show vertical levels not exceeding five (5) feet, and with all such reservoir plans there shall be furnished a plan, on a scale of not less than one (1) inch to four (4) feet, showing the method of providing a wasteway for such reservoir, and method of drawing off the water from such reservoir or basin. If the state engineer deems it necessary he may require the submission of complete plans and specifications for his approval. He may also require the filing of field notes of canal and reservoir surveys.

History. Laws 1890-91, ch. 8, § 35; 1895, ch. 45, § 2; R.S. 1899, § 927; Laws 1907, ch. 86, § 14; C.S. 1910, § 737; C.S. 1920, § 845; R.S. 1931, § 122-414; C.S. 1945, § 71-248; W.S. 1957, § 41-210; Laws 2005, ch. 15, § 2.

Cross references. —

As to application of this section to maps and plans filed with application for permit to construct reservoir, see § 41-3-301 .

The 2005 amendment, effective July 1, 2005, inserted “or be capable of being drawn and submitted electronically” in the second sentence.

Cited in

Hamp v. State, 19 Wyo. 377, 118 P. 653, 1911 Wyo. LEXIS 26 (1911); Laughlin v. State Bd. of Control, 21 Wyo. 99, 128 P. 517, 1912 Wyo. LEXIS 14 (1912).

§ 41-4-511. Final proof of appropriation; procedures generally.

Whenever an appropriation of water has been perfected in accordance with any permit issued by the state engineer, the appropriator may submit final proof of appropriation of water at any time within the time specified by W.S. 41-4-506 , to the superintendent of the water division in which the water right involved is situated, or, when more expedient, before the superintendent of another water division or the state engineer, or before a water commissioner in accordance with the provisions of W.S. 41-4-308 . Proof shall be made by appropriators under oath upon forms furnished by the state board of control. The superintendent shall collect for each proof taken a fee not to exceed one hundred dollars ($100.00), which fee shall be transmitted to the secretary of the board of control together with the several proofs taken. The secretary of the board of control shall use the fee to pay the appropriate amount for the county recording fee for the recording of the certificate of appropriation in the office of the county clerk of the county in which the water right is situated and the newspaper advertising fee for advertising the several proofs as provided in this section. The remainder of the fee shall be remitted to the state treasurer to the credit of the general fund. If the board of control rejects any proof, the fee shall be returned to the person, association or corporation submitting such proof. At least thirty (30) days prior to any regular meeting of the state board of control the superintendent of each water division shall cause all proofs taken by him to be advertised in at least one (1) issue of a newspaper having general circulation in the community where the water right involved is situated, such advertisement to contain in each case the permit number, the date of priority, the name of the ditch, canal or reservoir, the name of the appropriator, the name of the stream from which the appropriation is made, and the amount of the appropriation expressed in acres for ditches designed for the irrigation of lands and in acre-feet for reservoirs, or in cubic feet per second or gallons per minute when the appropriation is for domestic, stock, municipal, industrial, manufacturing, fish hatchery or power purposes. Advertisements shall state the time when, and the place where, the proofs of appropriation of water taken by the superintendent will be open for public inspection for a period of not less than one (1) or more than five (5) days, and the last day of the period shall not be less than fifteen (15) days prior to the meeting of the board. Any party claiming an interest in any water right from the stream or streams to which the advertised proofs refer, shall have the right to contest the proposed adjudications according to the provisions of W.S. 41-4-312 through 41-4-315 . Upon the completion of the taking of proofs of appropriation and the advertising, the superintendent of each water division shall transmit to the office of the state board of control in Cheyenne the several proofs taken, together with fees collected, and shall accompany the same with affidavits of publication as evidence of the required advertisement. At its next regular meeting the board shall consider all proofs of appropriation received from the division superintendents and if satisfied that there are no conflicts and that any appropriation involved has been perfected in accordance with the permit issued by the state engineer, the state board of control by the hand of its president, attested under seal, shall issue a certificate of appropriation of water as described in W.S. 41-4-325 and send the certificate to the county clerk of the county in which the use of water has been made to be recorded by the clerk as provided in W.S. 41-4-325 .

History. Laws 1890-91, ch. 8, § 36; R.S. 1899, § 928; C.S. 1910, § 738; C.S. 1920, § 849; Laws 1925, ch. 118, § 1; R.S. 1931, § 122-418; Laws 1937, ch. 72, § 1; C.S. 1945, § 71-249; W.S. 1957, § 41-211; Laws 1965, ch. 180, § 1; 1974, ch. 16, § 2; 1979, ch. 56, § 1; 1993, ch. 123, § 1; 1999, ch. 34, § 1; 2017 ch. 99, § 1, effective July 1, 2017.

Cross references. —

As to issuance of certificate of appropriation by board of control with reference to underground water in accordance with the provisions of this section, see § 41-3-935 .

As to adjudication of water rights with reference to diversion or storage of water for use in adjoining state upon proof of beneficial use as provided in this section, see § 41-4-104 .

As to judicial review of administrative action, see Rule 12, W.R.A.P.

The 2017 amendment , effective July 1, 2017, substituted “one hundred dollars ($100.00)” for “fifty dollars ($50.00)” in the second sentence; in the third sentence substituted “secretary of the board of control shall use the fee to pay the appropriate amount for the county recording fee” for “appropriate amount for the county recording fee shall be used by the secretary of the board to pay” and added “newspaper advertising fee for advertising the several proofs as provided in this section”; deleted “recording” preceding “fee” in the fourth sentence; and deleted “The advertisement shall be paid for by the county as provided by W.S. 41-4-307 ” following “meeting of the board” near the middle of the paragraph.

“Adjudication” of stream priorities is a proceeding in rem, or quasi in rem; and adjudication is generally considered equivalent of “determination.” Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Relevancy of determination. —

In action to quiet title, claimed by prescription, to water right in Little Laramie river watershed, and to which defendants set up decrees in that and Big Laramie rivers, the determination or adjudication in connection with Little Laramie was relevant to show plaintiff's claim is unfounded, and determination in Big Laramie was relevant to show defendants' interest in controversy. Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (Wyo.), reh'g denied, 55 Wyo. 347, 102 P.2d 745, 1940 Wyo. LEXIS 14 (Wyo. 1940).

Speculation is issue during an application proceeding, pursuant to § 41-4-503 , and during the final stages leading to a certificate of appropriation, pursuant to this section, and it may also be an issue during an abandonment proceeding, pursuant to § 41-3-401 .Denius v. T R Twelve, Inc., 589 P.2d 374, 1979 Wyo. LEXIS 345 (Wyo. 1979).

Speculative profit. —

If state engineer and board of control do their duty, as court presumes that they do, as to maps of lands to be irrigated and time within which appropriation must be completed, no one should be able to secure any part of it for speculative profit. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 1939 Wyo. LEXIS 37 (Wyo. 1939).

Necessary parties on appeal. —

Where appeal from board of control to district court taken by several parties jointly was dismissed and on appeal to supreme court from such order of dismissal, one of appellants was not joined as a party, in absence of any showing therefor, such failure was fatal to proceedings in error. Johnston v. Little Horse Creek Irrigating Co., 4 Wyo. 164, 33 P. 22, 1893 Wyo. LEXIS 8 (Wyo. 1893).

Applied in

Snake River Land Co. v. State Bd. of Control, 560 P.2d 733,