Barber v. City of Douglas, s. 96-43

• Citation: 931 P.2d 948
• Decision Date: 30 January 1997
• Docket Number: Nos. 96-43,96-42,s. 96-43
• Parties: William E. BARBER and Edna Barber, Husband and Wife, Appellants (Plaintiffs), v. The CITY OF DOUGLAS, Wyoming, a Wyoming Municipal Corporation, Appellee (Defendant). The CITY OF DOUGLAS, Wyoming, a Wyoming Municipal Corporation, Appellant (Defendant), v. William E. BARBER and Edna Barber, Husband and Wife, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 948

931 P.2d 948

William E. BARBER and Edna Barber, Husband and Wife, Appellants (Plaintiffs), v. The CITY OF DOUGLAS, Wyoming, a Wyoming Municipal Corporation, Appellee (Defendant).

The CITY OF DOUGLAS, Wyoming, a Wyoming Municipal Corporation, Appellant (Defendant), v. William E. BARBER and Edna Barber, Husband and Wife, Appellees (Plaintiffs).

Nos. 96-43, 96-42.

Supreme Court of Wyoming.

Jan. 30, 1997.

William W. Harden, Casper, for William E. Barber and Edna Barber.

Thomas E. Campbell, of Hand & Campbell, P.C., Douglas, for City of Douglas.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN, ^* and LEHMAN, JJ.

THOMAS, Justice.

At issue in this case is a district court ruling that there was no justiciable controversy presented in a declaratory judgment sought by William E. Barber and Edna Barber (Barbers), and a counterclaim for declaratory judgment by the Town of Douglas ¹ (Douglas), regarding the right to use water from Little Box Elder Spring. The water rights had previously been adjudicated to Douglas by an Order of the State Board of Control. The Barbers were seeking a judgment declaring their right to use water pursuant to contracts with Douglas. The district court ruled that the Barbers had no permit or right to the water and dismissed the declaratory judgment action including the counterclaim for a declaratory judgment by Douglas. The issue pressed by Douglas, assuming a justiciable controversy existed, was its right to a summary judgment upholding the sale and storage of water in accordance with its practice. We hold that the district court was in error in ruling that there was no justiciable controversy presented by the Barbers' Complaint. The Barbers clearly sought a declaration of their contractual rights to water from Little Box Elder Spring. We reverse and remand the case for the district court to address the contractual claims, and we make no ruling on the right of Douglas to a summary judgment because that issue should first be resolved by the district court.

In the Brief of Appellants William E. Barber and Edna Barber, the Barbers describe the issues before the Court as:

1. Whether or not the trial court erred in granting summary judgment by finding Appellants (hereinafter referred to as "Barbers") acquired no contractual rights to the use of water by virtue of the State Board of Control Order dated April 12, 1994 [sic], or the October 12, 1954 Right-of-Way Agreement between the parties.

2. Whether or not Barbers are entitled to a reversal and order granting summary judgment on the uncontested facts as a matter of law.

The Brief of City of Douglas, answering the Barbers, and setting forth the issue raised by Douglas in its cross appeal, states the issues as:

1. Whether the Barbers' lack of any water right in the Little Box Elder Spring requires dismissal of their claims for lack of a justiciable controversy.

2. If the Court determines there is a justiciable controversy, whether the City is nevertheless entitled to summary judgment.

a. Whether the right-of-way, dated October 12, 1954, clearly and unambiguously allows the City of Douglas to use the water from the Little Box Elder Spring for its water customers, whether such customers are located within or without the actual city limits of the City of Douglas.

b. Whether the Barbers are barred by the doctrines of estoppel, latches or waiver from bringing their claim.

c. Whether the Barbers have suffered any loss or damage.

In 1923, the Town of Douglas purchased the land surrounding and the water rights attached to Little Box Elder Spring. A reservation from that grant provided, "grantee [Douglas] agrees to furnish grantors, its assigns or successors, water for stock and garden purposes to be delivered through a two inch pipe controlled by ball and cock valves, said pipe to be installed by grantee herein, but maintained and repaired at all times by grantor, its assigns or successors * * *." The grantor in that conveyance was a predecessor in interest of the Barbers.

Douglas proceeded to secure the water right, and by an order of the State Board of Control, entered on April 12, 1924, the water appropriations that had been sold to the town were "detached from the lands and purposes for which said appropriations were originally granted, and changed to a preferred use for municipal purposes for and within the Town of Douglas, Wyoming * * *." The point of diversion for that water right was changed to the intake of the Douglas Pipe Line, and it then was conducted across the land now owned by Barbers through a wooden stave pipeline.

In 1954, Douglas obtained a new right-of-way across land owned by the Barbers for the installation of a new pipeline. The right of way document, dated October 12, 1954, includes the following in the statement of consideration:

As a further and additional consideration, First and Second Parties [Joseph Garst and R.C. Maurer, Co-Executors of the estate of Orsa D. Ferguson, Jr.--First Party, and the Barbers--Second Party] covenant and agree that Third Party [Douglas] is not limited in the use of water as purchased from the prior grantors * * * for domestic and municipal use in the Town of Douglas, Wyoming, but may meter, sell or utilize such water as may be necessary for domestic purposes for persons, ranches or families who live or own land on which the new water line crosses between the spring and the Town of Douglas, Wyoming. All water sold shall be subject to the direct control and regulation of Third Party.

Other consideration provided in that document is articulated in this way:

As an additional consideration to First and Second Parties [Joseph Garst and R.C. Maurer, Co-Executors of the estate of Orsa D. Ferguson, Jr.--First Party, and the Barbers--Second Party] in granting this right-of-way and easement, Third Party [Town of Douglas] agrees:

a. That any surplus water not needed by the Town of Douglas to provide water for the water customers of the Town of Douglas and not needed as an emergency supply, shall be turned into the creek at either the turn-out at the springs or at the turn-out on Saw Mill Creek so that the same may be made available for use by First and Second Parties, all of which is provided under the terms of the original agreement of sale of said water rights.

There is no dispute here that Douglas owns, and has had adjudicated to it, all of the water rights attributable to Little Box Elder Spring, and that the Barbers claim for water exists only under the language of the 1923 conveyance of the land and water rights and the 1954 right-of-way agreement. The contention of the Barbers is that the contracts limit Douglas to providing service within its city limits and to those over whose land the "spring" pipeline passes. The Barbers assert that any other use is, by definition, surplus water to be turned back into the creek. The Barbers brought this action seeking a declaratory judgment with respect to the agreements and injunctive relief to limit the use of water by Douglas in accordance with the agreements. Douglas claims that it consistently has interpreted the contracts with the Barbers to the end that it can provide service to all of its customers, whether they reside within or without the city limits. Douglas counterclaimed against the Barbers seeking declaratory relief incorporating its construction of the contracts. Both of the parties moved for summary judgment.

In ruling on the case the district court held, without regard to the contracts, that the Barbers had no right by virtue of an appropriation or permit to use water from Little Box Elder Spring. The district court held, in effect, that without such a legally cognizable interest in the water the Barbers had no standing to seek the declaratory judgment. The district court then found there was no justiciable controversy and dismissed the Complaint of the Barbers and the Counterclaim of Douglas. The Barbers appealed the ruling against them, and Douglas appealed the ruling against it.

A district court's rulings of law are reviewable de-novo on appeal. Garaman, Inc. v. Williams, 912 P.2d 1121, 1125 (Wyo.1996). On the record, the parties clearly were seeking an adjudication of their contractual rights; they were not disputing in any way the water right of Douglas; and, the case was one of...