Arave v. Pineview West Water Co., 101520 UTSC, 20180067

Docket Nº20180067
Opinion JudgePetersen Justice.
Party NameRoger B. Arave and Kimberly L. Arave; Janet Southwick, Trustee; Venture Development Group, LLC, Appellees, v. Pineview West Water Company, Appellant.
AttorneyJohn H. Mabey, Jr., David C. Wright, Salt Lake City, for appellees Edwin C. Barnes, Timothy R. Pack, Emily E. Lewis, Salt Lake City, for appellants
Judge PanelJustice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.
Case DateOctober 15, 2020
CourtSupreme Court of Utah

2020 UT 67

Roger B. Arave and Kimberly L. Arave; Janet Southwick, Trustee; Venture Development Group, LLC, Appellees,

v.

Pineview West Water Company, Appellant.

No. 20180067

Supreme Court of Utah

October 15, 2020

Heard November 13, 2018

On Direct Appeal

Second District, Ogden The Honorable Ernie W. Jones No. 130907544

John H. Mabey, Jr., David C. Wright, Salt Lake City, for appellees

Edwin C. Barnes, Timothy R. Pack, Emily E. Lewis, Salt Lake City, for appellants

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.

OPINION

Petersen Justice.

INTRODUCTION

¶1 Roger B. and Kimberly L. Arave, Janet Southwick, and the owners of the Snowberry Inn bed-and-breakfast (collectively, Plaintiffs) each have decades-old water rights that allow them to meet their own water needs. They divert their water through the use of two wells. Pineview West Water Company has a much larger, junior water right that allows it to supply water to seventy single-family homes and irrigate over twenty acres of land. Pineview operates five wells that are much deeper and stronger than those of the Plaintiffs. The Plaintiffs claim that Pineview has interfered with their water rights because when one of Pineview's wells operates (Well 4), it lowers the water table and puts the available water beyond the reach of their pumps. After a bench trial, the district court found in favor of the Plaintiffs on their claims of interference and negligence.

¶2 Pineview appeals, raising the following issues. With regard to the Plaintiffs' interference claims, Pineview asserts the Plaintiffs did not establish interference because they did not prove that they were unable to obtain some amount of their respective water rights and that their means and methods of diversion were reasonable. Pineview asserts that the Plaintiffs' negligence claim should fail because they did not bring it against the proper parties. And finally, Pineview argues that even if the Plaintiffs properly prevailed on their interference and negligence claims, the district court incorrectly calculated damages.

¶3 We reverse the district court's determination that Pineview interfered with the Plaintiffs' wells. We do not disturb the court's ruling on negligence. However, we remand that claim to permit the district court to consider whether it survives the dismissal of the Plaintiffs' interference claims and to make additional findings, if necessary. We vacate a portion of the Plaintiffs' damages award. And we remand the district court's calculation of the remaining damages and imposition of forward-looking remedies for the court to determine if and how they are impacted by the dismissal of the Plaintiffs' interference claims.

BACKGROUND1

The Parties

¶4 Roger B. and Kimberly L. Arave are joint owners and residents of a single-family residential property. They own a water right with a priority date of 1963. The Araves' water right allows them to divert 0.45 acre-feet[2] of water annually at a flow rate of 6.7 gallons per minute to supply water for single-family domestic use3 and two livestock units.

¶5 Janet Southwick, as trustee, is the sole owner and resident of a single-family residential property. She owns a water right with a priority date of 1978. Southwick's water right allows her to divert one acre-foot of water annually to irrigate 0.25 acres of land and supply water for single-family domestic use.

¶6 The Araves and Southwick share the Arave Well as the sole diversion point for their year-round water rights. The Arave Well was drilled in 1963 to a depth of 187 feet with perforations from 140 to 170 feet. The perforations are entirely in an aquifer called the Norwood Tuff.[4]

¶7 Venture Development Group, a limited liability company, is the sole owner of a residential property that operates a commercial bed-and-breakfast known as the Snowberry Inn. It includes nine bedrooms, nine bathrooms, two kitchens, and serves as the year-round residence of the Inn's operator. Venture owns two water rights with priority dates of 1960 and 2017. Venture's original water right allows it to divert 0.45 acre-feet of water annually at a flow rate of 6.7 gallons per minute to supply water for single-family domestic use. However, Venture had been using more water than it had lawfully appropriated, and it was using the water in ways that were not permitted under its original water right. So in 2017, it applied to appropriate additional water. Its new water right, acquired pursuant to a change application, allows Venture to divert an additional 3.25 acre-feet of water for irrigation and commercial use at the Snowberry Inn.

¶8 Venture diverts water year-round from the Snowberry Well, which was drilled in 2001 to a depth of 133 feet. Its perforations are from 105 to 125 feet and span both the Norwood Tuff and the unconsolidated material on top of it. The well likely gets the majority of its water from the more permeable unconsolidated material, but it is hydrologically connected to the Norwood Tuff. The Snowberry Well is equipped with a pump that has the capacity to pump twenty-five gallons per minute. The pump transfers water into a cistern, which then pumps water into the Snowberry Inn. The cistern is equipped with sensors that turn the pump on when the water level inside the cistern drops below a certain point and then signal the pump to turn off when the cistern is full.

¶9 While the Plaintiffs use their water rights to meet their own domestic and business needs, Pineview is a small water company that owns and operates five wells, including the one at issue here- Well 4. Pineview's water rights are almost thirty-three times larger than the Plaintiffs' rights combined, 5 and it supplies water to seventy single-family homes and irrigates over twenty acres of land. But its rights are junior to all of the Plaintiffs' rights except the latest one that Venture acquired. Its earliest right, modified by a change application, has a 2003 priority date. The state engineer's approval stated that modification was "subject to prior rights." In 2013, the state engineer approved a new change application, allowing Pineview to divert additional water. Pineview may divert its water from any combination of the five wells.

¶10 Well 4 is located approximately 700 feet from the Arave Well and approximately 460 feet from the Snowberry Well. It was drilled in 2004 to a depth of 738 feet with four perforated zones from 58 to 98 feet, 208 to 228 feet, 408 to 448 feet, and 648 to 738 feet. Well 4 draws water from both aquifers, but most of its water likely comes from the Norwood Tuff. Well 4 is equipped with a pump that has the capacity to pump 100 gallons per minute.

The Dispute

¶11 When Well 4 was tested for the first time in 2004, it affected the Arave Well almost immediately. Within hours, the Arave Well was unable to pump any water and began sucking air, resulting in silt damage to the Araves' and Southwick's property. So the test was cut short. The Arave Well recovered within a day or two following that initial test. But a subsequent test produced the same result.

¶12 Nevertheless, Pineview later began regularly pumping Well 4 during irrigation season, from early July until September. When Well 4 was operating, the Arave Well was once again unable to produce water. Eventually, the Snowberry Well had trouble as well. It had traditionally been able to fill its cistern within fifteen minutes. But with Well 4 operating, the Snowberry Well struggled for hours to complete the same task.

¶13 In the beginning, the parties resolved this problem amongst themselves. Pineview agreed to connect the Plaintiffs to its water supply and provide them with culinary water for a flat rate of $20 per month. Once the Araves and Southwick began using Pineview's water, the Araves removed the pump from the Arave Well and no longer used it to obtain water. Instead, they used it as a monitoring well to gather data regarding the impact of Well 4 on the water level.

¶14 Several years later, Pineview sought to increase the Plaintiffs' fees to match those paid by its other water users. The parties tried to reach an agreement regarding new fees, but those negotiations broke down and this suit followed.

¶15 The Plaintiffs sued Pineview, asserting causes of action for interference with water rights, negligence, and nuisance.6 In their complaint, they sought injunctive relief, damages, and attorney fees.

The Final Amended Judgment

¶16 Following a four-day bench trial during which the district court heard expert testimony from both sides, the court ruled in favor of the Plaintiffs on their interference and negligence claims. In support of the verdict, the district court entered findings of fact and conclusions of law.

¶17 The district court found that neither the Arave Well nor the Snowberry Well had ever experienced difficulty diverting water before Well 4 began pumping. But when Well 4 was in operation, the court found that it created a cone of depression that encompassed both the Arave and Snowberry Wells. The district court explained that a cone of depression is an "underground area of reduced soil saturation [that] is in the shape of an inverted cone, with the point of the cone extending downward toward the point at which the water is extracted. . . . [T]he depth of the water table will be most significantly impacted at the point of extraction . . . ." (Quoting Bingham v. Roosevelt City Corp., 2010 UT 37, ¶ 3, 235 P.3d 730.) The actual shape of a cone of depression varies depending on the nature, depth, and permeability of the surrounding aquifer.

¶18 The district court noted that the Arave Well is a "very good...

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