purchaser; and they only obtained such a right upon filing the certificate mentioned, and then they obtained it by direct grant from the state, and not in any degree by the sale and purchase of the franchises, etc., of the old corporation." In Asheville Division v. Aston, 92 N. C. 578, the court used language which is in accord with our laws concerning the dissolution of corporations: "A corporation cannot endure longer than the time prescribed by its charter, and no judicial proceedings are necessary to declare a forfeiture for such a cause, but for any other cause of forfeiture a direct proceeding must be instituted by the sovereign to enforce the forfeiture, and it cannot be taken advantage of in any collateral proceeding." The defendant in the case at bar does not contend that there has been any judgment of the court dissolving the old corporation, and admits that it maintains the name and charter of the First State Bank, one of the parties to the contract sued upon. Not only does the doctrine of estoppel apply, but the contention of the defendant is a collateral attack. With reference to the power to relieve corporations from contracts and debts, the court in Bruffett v. Great Western R. Co. 25 Ill. 353, very properly says: "If the legislature might release such bodies from liability to perform their engagements, or from paying their debts, or damages in curred by a breach of contract or of duty, they would thereby impair the obligation of contracts existing between individuals and the company." In the case of Higgins v. Downward, 8 Houst. (Del.) 227, 40 Am. St. Rep. 141, 14 Atl. 720, 32 Atl. 133, the court says in the syllabus: "The Wilmington & Reading Railroad Company was incorporated under the laws of the state of Delaware. Subsequently, under a decree of the United States circuit court, all the railroad of said company, and all its rights, privileges, immunities, and franchises, exclusive of those granted by the state of Delaware, were sold to satisfy a mortgage. Afterwards the legislature of Delaware, by Act February 22, 1877, incorporated the purchasers at such sale, and vested them with all the rights, title, interest, property, possession, claim, and demand at law or in equity of, in, or to such railroad, with its appurtenances, and with all the rights, powers, immunities, privileges, and franchises of the corporation as whose property the same was sold. Held, that said act did not revoke the charter of said railroad company." We see no force in the contention that the defendant, using as it does, the same name and charter, still is in legal effect a new corporation, and absolved from the contracts of the old. Is it possible that the First State Bank became inanimate and lost its entity just long enough to escape free its debts and contracts, and at once, by the touch of some magic wand wielded by the bank commissioner, the corpse sprang upon its feet, not itself any longer, but another being entire ly, untrammeled by the obligations incident to its former existence, full-fledged, ready, and equipped to make its influence again felt in the channels of trade and commerce? If such be true, the bank commissioner of Oklahoma has brought about a transfor mation more wonderful than the dream of ancient alchemists that they could transmute the baser metals into gold. If the alchemist transmuted iron into gold the substance became gold, and was not iron any longer; but the defendant ascribes to the bank commissioner far greater power, a power to enable a helpless and hopeless being to lose its identity and existence, be transmuted into a new, separate, and independent creation, strong and virile, bearing the same name, having the same life, in law another being, but in fact the same. We do not think that either the bank commissioner or banking board intended such a paradoxical result. We must assume that such officers attempted to exercise only such power as was given them by law. One of two propositions must be true. Either the First State Bank, as now conducted, is a collection of individuals assuming to do a banking business without corporate existence and in violation of law, or it is the same corporation that entered into the lease contract with the plaintiff. We do not hesitate to decide in favor of the latter proposition. It appears from the agreed statement of facts that our holding in this case does no violence to the original intention of those interested in the reorganization of the First State Bank. Banking institutions, of all business concerns, should stand for fair dealing; Menefee and his associates, as the new stockholders of the bank, having by written contract, accepted by them, purchased the assets of the bank, including the leasehold in question, it ought not to be urged that the institution they are conducting should escape such obligations as the contract imposes. It is not necessary for us to determine whether or not the bank, after reopening for business, again assumed the lease con tract, nor whether or not such contract could be avoided by a sublessee, yet we feel it not amiss to add that, in holding the defendant liable, we fix no burden not contemplated by those interested at the time of the contract with the banking authorities, and do no one any injustice. The judgment of the trial court is affirmed. Per Curiam: Adopted in whole. Petition for rehearing denied July 10, 1917. Annotation-Reorganization of banking corporation in insolvency proceeding as affecting liability on existing obligations. Generally as to the effect of consolida- | vent bank to pay the depositors, and tion, merger, or absorption of corpora- creditors agreeing thereto, 74 per cent of tion on its unsecured liabilities, in ab- their claims, and to reopen the bank with sence of statutory or contract provision new capital and continue its business, in relative thereto, see notes to Atlantic & consideration of the transfer to them by B. R. Co. v. Johnson, 11 L.R.A. (N.S.) the stockholders of all the stock of the 1119; Luedecke v. Des Moines Cabinet bank and all its assets, including its name Co. 32 L.R.A.(N.S.) 616; and Jennings and franchise, which proposition was acV. Crystal Ice Co. 47 L.R.A. (N.S.) 1058. cepted, and such persons reorganized the As to what unsecured claims are cov- bank and carried on a banking business ered by the express assumption by one under the same name and franchise, with corporation of the indebtedness of an- the same officers, and in the same office, other, upon consolidation, merger, or and using the seal of the old corporaabsorption, see note to Billmyer Lumber tion, it was held that such reorganized Co. v. Merchants' Coal Co. 26 L.R.A. bank was a continuation of the original (N.S.) 1101. corporation, and was liable to creditors not accepting the proffered compromise. Island City Sav. Bank v. Sachtleben (1887) 67 Tex. 420, 3 S. W. 733; Island City Sav. Bank v. Wales (1887) 3 Tex. App. Civ. Cas. (Willson) 295. As to right of creditor of insolvent corporation to maintain action at law against new corporation to which assets have been transferred, see note to Sharples Co. v. Harding Creamery Co. 11 L.R.A.(N.S.) 863. As to right of creditors of corporation which has transferred all, or substantially all, of its assets to another corporation to subject the assets so transferred to an equitable lien or preference, see note to Ex parte Savings Bank, 5 L.R.A. (N.S.) 520. As stated in FIRST STATE BANK V. LEE, ante, 609, the important question to be determined in each case is whether the facts justify the conclusion that in legal effect the reorganized bank is a new corporation, since, if the old bank has not lost its identity, it is bound by any lawful contract into which it has entered. The reorganized bank was held not to be a new corporation in that case, it appearing that the bank commissioner, by a contract approved by the court, sold the assets of an insolvent state bank for the benefit of the depositors' guaranty fund, authorized the purchasers to secure the cancelation of the stock of the bank and have new certificates of stock issued to themselves, and granted authority to the bank so reorganized to reopen under the same name and charter, and to do a banking business on the repairing of the capital stock. Where certain persons made a proposition to the stockholders of an insol But where persons not connected with a failed bank purchased its assets from the state bank commissioner, assuming only the payment of its general deposit liabilities, and in pursuance of the contract of sale legally organized a new bank under a new name, such bank is not liable to a surety company for the amount it was required to pay as surety upon an indemnity bond executed by the former bank for the purpose of protecting a deposit made by the commissioners of the land office. Capitol State Bank v. Western Casualty & G. Ins. Co. Okla. —, 149 Pac. 149. In Willius v. Mann (1904) 91 Minn. 494, 98 N. W. 341, 867, where, during the winding up of the affairs of an insolvent bank by its assignee for the benefit of creditors, a reorganization of the bank was effected at the instance of the creditors, and the assignee turned over to the officers of the new bank all the property and effects of the old, and the new bank subsequently became insolvent, it was held, upon an objection to an assessment by a stockhelder of the old bank who did not become a stockholder of the new, that the stockholders of the reorganized bank were primarily liable for the debts of the old bank. G. V. I. UTAH SUPREME COURT. LAKE SHORE DUCK CLUB, Appt., V. LAKE VIEW DUCK CLUB et al., Respts. Water (— Utah, -> 166 Pac. 309.) cultivating appropriation food for wild fowl. Water cannot, where the purpose of the law is to endow the appropriator with all the indicia of private ownership, be ap. propriated for the purpose of cultivating food for wild fowl on public land which is unsurveyed, uninclosed, unoccupied, and uncultivated. For other cases, see Waters, 11. f, in Dig. 1-52 N. S. A' (June 28, 1917.) of the plaintiff and defendant corporations, and denies the other allegations of the complaint. It further alleges, in substance, that the individual defendants and numerous other persons named therein are now, and for a long time have been, the owners of several parcels of land, particularly describing them, and for more than thirty years prior to the commencement of the action have been the owners of the right to use all of the waters of Dix creek and Warm Springs creek, and during all of said time have, by dams and ditches and natural watercourses running through said land, irrigated the same for the production of natural grasses growing thereon, for watering stock, forming duck ponds, and for other beneficial purposes. It is further alleged that these acts of defendants are the acts complained of in plaintiff's complaint; that PPEAL by plaintiff from a judgment of the defendant corporation is, and for a the District Court for Box Elder County in favor of defendants in an action brought to quiet title to certain water and water rights, and for damages for alleged wrongful interference therewith. Affirmed. The facts are stated in the opinion. Mr. R. S. Farnsworth for appellant. Mr. George Halverson for respondents. Thurman, J., delivered the opinion of the court: This is an action by plaintiff to quiet its title to certain dams and ditches, water and water rights, of which it claims to be the owner, in Box Elder county, and for damages for the alleged wrongful interfer ence therewith. The complaint alleges the ownership and right of possession of said property, and long time has been, the lessee of the owners of said lands, and the individual defendants are employees of the defendant corporation. Defendants pray for a dismissal of the ac tion. The court found in favor of defendants. In finding No. 2 it finds that the plaintiff, on the 25th day of September, 1915, made an application in the office of the state engineer for a right to the use of unappropriated waters for irrigation purposes from September 1st to December 31st of each Box Elder county, to be applied through a every year of First Salt creek in ditch on unsurveyed land comprising parts of sections 6, 7, and 8, in township 7 north, range 2 west, and sections 11 and 12, township 7 north, range 3 west, Salt Lake and meridian, United States survey, aggregating the application was published, and, no pro- states that the water was used on certain described lands for the propagation and growing of grasses, tules, rushes, and other vegetation suitable for feeding wild waterfowl, and declares the same to be a beneficial use. The complaint then alleges the interference complained of, which consisted of placing obstructions in plaintiff's canal, diverting the waters thereof, and maintaining the same, to plaintiff's injury. Plaintiff prays for damages, and that its title to Finding 3, in substance, states that at the water and water ditches be quieted, and the time of making said application the for injunctive relief. The answer of the plaintiff was not, never has been, and is defendants admits the corporate existence not now, the owner of any part of said secNote. No other reported case has been doubtful whether the appropriation could found analogous as to facts to LAKE SHORE have been upheld, in view of the statement DUCK CLUB V. LAKE VIEW DUCK CLUB. In of the court that it was of the opinion that, view of the purpose of the statute under to effect a valid appropriation under the which the attempted appropriation was statute, the beneficial use contemplated made, that it is to endow the appropriator must be exclusively for the benefit of the with the indicia of private ownership, it appropriator, and subject to his complete would seem that no other decision could dominion and control, which manifestly is have been reached. And even had there been not the case where the use contemplated is in this case a possessory right to the land the cultivating of food for fowl feræ upon which the water was applied, it is naturæ. tions 6, 7, and 8, in township 7 north, range 2 west, or sections 11 and 12, in township 7 north, range 3 west of the Salt Lake meridian. The court then finds the construction of a canal by plaintiff leading to the lands above described in 1915 and 1916, and the placing of a dam therein by the defendants by which the water was diverted and caused to flow down a natural watercourse to and upon the lands of the defend ants, where the same was used for soil washing, the producing of natural grasses, pasturage, vegetation, and duck ponds, on the grounds occupied by the defendant Lake View Duck Club. Finding 4 states, in substance, that during the time mentioned in the complaint, and prior to the diversion of the water by the defendants, all the waters of Salt creek flowing down to plaintiff's point of diversion were flowing to and upon said sections 6 and 7, which were unsurveyed lands, arid in character, but the water spread out tended to produce natural grasses, tules, rushes, and other vegetation suitable for wild waterfowl; that said lands were and still are uninclosed public domain, no part of which has ever been tilled. The other findings of the court relate solely to the diversion and use of the water by the defendants, the necessity therefor, and the conclusion of the court that the defendants rightfully committed the acts complained of; that the plaintiff was not damaged, and was not entitled to the water. As the defendants seek only a dismissal of the action, with no prayer for equitable relief, we deem the foregoing statement sufficient, especially as the only question to be determined is, What, if any, relief is the plaintiff entitled to in view of the pleadings and facts disclosed by the record? This is an equity case, and this court has the power to review the testimony for the purpose of determining what the facts are and the equities of the parties, even though its views are in conflict with the findings of the trial court. On the very threshold, however, of our investigation, the court finds itself confronted with a unique question,-an anomaly, perhaps, in the jurisprudence of the arid region. Respondents, in their brief, assail the va. lidity of the alleged appropriation relied on by plaintiff on the grounds that the lands to be irrigated are unsurveyed government domain, uninclosed, unoccupied, and uncultivated, and that the propagation of wild fowl thereon is not a beneficial use subject to private ownership. If this contention is right, every other question involved becomes wholly immaterial. The plaintiff, in pursuance of the provisions of Comp. Laws Utah 1907, § 1288x6, | as amended in 1909 (Laws 1909, chap. 62), made its application in the office of the state engineer for a right to the use of unappropriated water for the irrigation of certain lands, to wit, sections 6 and 7, township 7 north, range 2 west, and sections 11 and 12, township 7 north, range 3 west, Salt Lake meridian. It is stated in the application that the land is unsurveyed, and that the water is to be used for propagating grasses, tules, rushes, and other vegetation suitable for feed for wild waterfowl. The application is in due form. Notice thereof was published as provided by law. protest was filed, and the state engineer approved the application subject to the usual conditions which, as far as the record discloses, have been fully complied with. No It will be noted that the only purpose of this appropriation is the production of food for wild waterfowl on unsurveyed lands of the public domain. The court found, as we have seen, that the lands were not only public and unsurveyed, but uninclosed and untilled. It also found that the plaintiff did not own them, nor any part of them, from all of which, if the court's findings are justified by the evidence, we may draw the legitimate conclusion that plaintiff did not, and does not, own even a possessory right to any of the lands except the small spot occupied by its clubhouse which, for the purposes of this case, is wholly immaterial. These findings of the court as to the nature, character, and condition of the land upon which the water was to be used are not seriously questioned. If they are questioned at all, we are satisfied that they are sustained by a decided preponderance of the evidence. The vital question, then, to be determined is, Can an appropriation of water be made under the laws of this state for the irrigation of unsurveyed, uninclosed, unoccupied public domain of the United States for the sole production of food for wild waterfowl, which, when propagated and raised, must, of necessity, be as accessible to capture, destruction, and appropriation to use, by any other person who may see fit to hunt upon the land, as to the person who went through the form of making an appropriation? To our minds it is utterly inconceivable that a valid appropriation of water can be made under the laws of this state, when the beneficial use of which, after the appropriation is made, will belong equally to every human being who seeks to enjoy it. It would be little short of an anomaly in any system of jurisprudence that would authorize the restraining of a person from diverting water used solely for the propagation of ducks, and then deny injunctive, or any, relief against the same person if he should enter was used; but in all such cases it will appear that some sort of possessory right, good as against everybody but the government, existed in favor of the appropriator. Such is the case with the authorities cited by appellant. upon the land irrigated, shoot the ducks, possessed of the land upon which the water ad libitum, and appropriate them to his own use. If the beneficial use for which the appropriation is made cannot, in the nature of things, belong to the appropriator, of what validity is the appropriation? The very purpose and meaning of an appropriation is to take that which was before public property and reduce it to private ownership. The whole procedure under our statute, relating to an appropriation of water, is a series of steps to that end. The section of the Compiled Laws above referred to commences: "Any person, corporation, or association, to hereafter acquire the right to the use of any public water in the state of Utah shall," etc. Then the successive steps are stated down to and including the issuing of the final certificate of ownership as provided in § 1288x16, as amended in 1915 (Laws 1915, chap. 83). The latter part of that section declares: "The certificate so issued and filed shall be prima facie evidence of the appropriator's right to the use of the water in the quantity, for the purpose and during the time mentioned therein, and shall be evidence of such right." It certainly must be conceded that the purpose of the law is to endow the appropriator of the water with all the insignia of private ownership. The certificate is his deed, his evidence of title,-good, at least against the state, for all it purports to be, and good as against everyone else who cannot show a superior right. The authorities cited by appellant in support of the right to appropriate water to be used on the public domain are not controverted by us, but they are not in point. It is almost a matter of common knowledge, even among laymen, that water may be appropriated and used on the public domain, and such a right acquired thereby as will be recognized and sustained, even though the appropriator never acquires title to the land. His right to the water may be respected and upheld even after he is dis It is manifest in this case that the plaintiff has no possessory right whatever to the lands upon which the water is to be applied. It is therefore impossible for it to acquire the exclusive enjoyment of the use to which the water is applied. It is not alone the fact that the lands are public domain, unsurveyed, uninclosed, unoccupied, and untilled, but the fowl to be fed on the land are wild waterfowl-feræ naturæ, as distinguished from domestic fowl, which might possibly be the subject of private ownership even though propagated on the public domain. We have searched in vain for any authority in support of appellant's claim of a valid appropriation of the water in controversy. The beneficial use stated in the application is not in question. We are not disposed to hold that any use of water tending to supply man or domestic animals with food is not beneficial. But for the purpose of effecting a valid appropriation of water under the statutes of this state we are decidedly of the opinion that the beneficial use contemplated in making the appropriation must be one that inures to the exclusive benefit of the appropriator and subject to his complete dominion and control. As the use in this case is not of that character, we are forced to the conclusion that plaintiff's attempted appropriation is invalid, and that defendants committed no legal wrong in the acts complained of in plaintiff's complaint. As these views are decisive of all the assignments of error, the judgment of the trial court is affirmed, with costs. Frick, Ch. J., and McCarty, Corfman, and Gideon, JJ., concur. Carrier Carmack Amendment |