dissenting.
I,too, must respectfully dissent. I join in the dissent of my brother Raper, but feel that because the appropriation, use, and control of the waters of this state comprise the single most important area of concern to all of the citizens of Wyoming, I feel compelled to set out shortly some of my views and the reasons therefor.
It is my view that the majority opinion casts confusion into this field and departs from long-established precedent, and that it fails to conceptualize or recognize the basic constitutional commandments that all the waters are the property of the state, subject alone to the supervision and control of the State Board of Control and that the only power, authority, or jurisdiction of courts in this area is one of appellate review. I am also concerned that this opinion ignores the basic principle that although the right to use of water is described as one of ownership, this is conditional and such use is always subject to the doctrine of beneficial use for the benefit of society as a whole.
Additionally, it is my opinion that the majority of the court has restructured this proceeding and raised and asserted issues not raised, asserted or contemplated by the parties thereto and has departed completely from the basis upon which the trial court made its holding. This approach mystifies me, leaving me with the apparent inference that this is a device to avoid the clear holding of Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 P. 764, and Wyoming Hereford Ranch v. Hammond Packing Co., 31 Wyo. 31, 222 P. 1027.
The record is clear that no party to this proceeding has in any manner challenged the city’s appropriation, priority, or use of the water thereunder, and strangely enough an examination of the amicus curiae brief of the city reveals that it does not even attempt to suggest that this is the case. Nor does the majority contend that the city will be in any manner bound by any declaration in this case because it is basic that since the city is not a party thereto, its rights could not be affected. Simply and logically, this appears to be a complete answer to the question of whether the City of Cheyenne is an indispensable party, but such approach is often unacceptable to the legal mind, although it is the writer’s suggestion that these facts alone reveal the absence of a justiciable issue.
Although the majority opinion is sensitive to the limitations of an amicus curiae brief, a careful reading of the opinion suggests that it has been unable to apply these limitations, which is improper. An amicus curiae brief cannot “create, extend or enlarge the issues,” City of Tempe v. Prudential Insurance Company of America, 109 Ariz. 429, 510 P.2d 745, 748, dismissed 414 U.S. 1088, 94 S.Ct. 717, 38 L.Ed.2d 546; Hootch v. Alaska State-Operated School System, Alaska, 536 P.2d 793, 809; Morgan County Commission v. Powell, 292 Ala. 300, 293 So.2d 830, 840.
So far as I am able to analyze and understand, the holding of the majority that the City of Cheyenne is an indispensable party in this case is based upon three propositions, most summarily stated as follows:
1. That because of conditions which might be imposed it could become uneconomical for Husky to purchase its water from the city, and that a renegotiation or an abandonment of the contract might follow, which “could have serious effects upon the ability of the city to meet bond obligations * * * should the refinery operations be discontinued or Husky’s purchase of the water terminated.”
2. That in the absence of the city, any decision made herein against Husky would affect the city “as a matter of stare decisis.”
3. With some apparent relationship to the last-mentioned point, the majority opinion apparently asserts that Husky is *284an agent of the city, which would make it an indispensable party.
An examination of these, in my opinion, reveals affirmatively the impropriety of the assertion that they indicate an indispensable status of the city.
The first is based upon speculation and the imagined possibilities existent in the mind of the opinion writer. Declaratory judgment actions grant no power to courts “ ‘to determine future rights or controversies in anticipation of events that have not occurred,’ ” Cranston v. Thomson, Wyo., 530 P.2d 726, 729, quoting Glasgow v. Fox, 214 Tenn. 656, 383 S.W.2d 9, 13.
Declaratory judgment actions do not require the joinder of persons who will be affected only by precedent, Attorney General v. Kenco Optics, Inc., Mass., 340 N.E.2d 868, 870. The writer further suggests that by application of the rule in Cranston the same result is indicated. If the writer may be indulged in his own speculation — as has been quite freely done herein — may it be observed that if this basis has any validity there is a strong possibility that every municipality which has water rights and which sells water to industrial users is an indispensable party herein.
To sustain the agency relationship and that this decision will affect the city, the majority relies upon the case of Metropolitan Denver Sewage Disposal District No. 1 v. Farmers Reservoir and Irrigation Company, 179 Colo. 36, 499 P.2d 1190, 1192, to apparently satisfy itself that any decision rendered against Husky will affect the city in this case.
This writer is totally unable to apply that case to this proceeding because of the marked factual differences. That case is based upon the agreed facts and conditions of the contract between Denver and Metro. In effect Metro was only treating sewage, and once it had completed the treatment of the sewage its function had ceased. The extent of Denver’s control was such that it was the same as if Denver alone had treated it, and based thereon that case decides Metro is an agent of Denver. I am unable, by any construction of the facts herein, to attribute to Husky any agency arrangement, Husky being merely a purchaser of the water and using it for its own purposes with no provision that it be returned to the City of Cheyenne.
In my joinder in Justice Raper’s dissent, I make full reliance upon his disposal of such matters and the authority cited therein, which I do not specifically mention in this opinion.
In my view it is, however, necessary not only to require Husky to apply for a permit but to reverse and set aside the judgment of the trial court insofar as it holds that the rights of the intervenors were not infringed upon and to set aside the dismissal with prejudice of the intervenor’s petition.
The historical use of water has been long recognized, and to deprive the intervenors in this case of a proper forum in which to assert their claim would be devastating, not only to them, but to others whose rights may be dependent upon an application of such doctrine throughout the state. The writer may suggest, however, that this question may not be ripe unless and until the board of control and the State Engineer shall have granted a permit with conditions therein which would result in the violation of their rights, and that they certainly should be heard.