Bard Ranch, Inc. v. Weber
| Decision Date | 05 March 1968 |
| Docket Number | No. 6267,No. 22864,No. 22865,P,No. 2,No. 1,No. 6266,W,22864,1,22865,2,6266,6267 |
| Citation | 538 P.2d 24 |
| Parties | BARD RANCH, INC., Appellant, v. Wayne A. WEBER and Evelyn S. Weber, Appellees. In the Matter of the FINAL PROOFS OF APPROPRIATION OF the Following WATER RIGHTS: PermiteberDitch; PermiteberDitch; PermitENL., Wayne ENL. WeberDitch; PermitENL., Second ENL. WeberDitch; In the Matter of the Amended Petition to Change the Appropriation Under the WeberDitch, Permitriority of |
| Court | Wyoming Supreme Court |
William R. Jones, Jones, Jones, Vines & Hunkins, Wheatland, for appellant, Bard Ranch, Inc. and appellees H. F. Ketelsen and Frances S. Ketelsen.
Jack R. Gage, Hanes, Carmichael, Johnson, Gage & Speight, Cheyenne, for Wayne A. Weber and Evelyn S. Weber (appellants in Case No. 4403, and appellees in Case Nos. 4400 and 4401).
Before McEWAN, * C. J., GUTHRIE, McCLINTOCK, THOMAS, JJ., and ARMSTRONG, D. J., Retired.
How long is the Cooley Ditch? Who owns the Cooley Ditch? Who is entitled to use the Cooley Ditch? What water appropriations can be conveyed through the Cooley Ditch? Who is responsible for the expense of maintenance and repair of the Cooley Ditch?
These are the questions posed by these three cases which are the product of disagreements between neighbors over the operation of a private irrigation system located approximately five miles east of Wheatland, in Platte County, Wyoming. The Cooley Ditch was initially constructed in 1914, according to a Proof of Appropriation of Water filed with the State Engineer on October 19, 1936, as an integral part of the irrigation system through which water is diverted from Chugwater Creek for various water appropriations, either adjudicated in favor of the parties or held in a permit status by the parties. This stretch of Chugwater Creek flows in generally a northeasterly direction, and the several ditches which compose the irrigation system also flow to the north and east out of Chugwater Creek.
We have concluded that the Cooley Ditch begins at its headgate located on Chugwater Creek, the site of which is legally described as South 85 10 East, 700 ft. distance, from the South Quarter Corner of Section 20, Township 24 North, Range 67 West, 6th P.M., and which is located in the Northwest Quarter of the Northeast Quarter of Section 29, T. 24 N., R. 67 W. It ends at the point in the Northeast Quarter of the Southwest Quarter of Section 21, T. 24 N., R. 67 W., where in the year 1920 it entered an existing ditch known as the Enlargement of the Chugwater Ditch No. 1. It is jointly owned by the parties in these cases. Both parties are entitled to use the Cooley Ditch.
The District Court held that Bard Ranch, Inc., in entitled to use the Cooley Ditch for the conveyance of water for water rights aggregating 2.76 c. f. s. This finding appears to be premised upon a combination of contractual rights and historic permission. The District Court further held that in accordance with the provisions of §§ 41-181 through 41-188, W.S.1957, Bard Ranch, Inc., would be entitled to convey as much as 5.52 c. f. s. through the Cooley Ditch. Bard Ranch, Inc.'s rights to convey water must be the object of further consideration by the District Court. Accepting arguendo the rights of Bard Ranch, Inc., as defined by the District Court, and recognizing that the capacity of the Cooley Ditch is 45.2 c. f. s., the interest of the Webers then would be the balance of that capacity, or 39.68 c. f. s., which they would be entitled to use for the conveyance of water assuming that they are able to secure appropriations of water in such amounts. 1
With respect to the responsibility for maintenance and repair of the Cooley Ditch the parties must contribute to these expenses according to a ratio determined by the number of acres owned by them and irrigated by water conveyed through the Cooley Ditch and the total number of acres irrigated by water conveyed through the Cooley Ditch.
The rationale for our answers to these questions is stated more completely in the discussion which follows. The judgment in at least one of these cases must, of necessity, be redrawn, and, in accordance with our resolution of the issues presented, the District Court will need to augment the record in some particulars and perhaps reexamine it in others.
This is an appeal from the Order entered by the District Court in an action brought by Bard Ranch, Inc., in which the adjudication of ownership and use rights of the Cooley Ditch was sought. While the use of the Cooley Ditch was adjudged in favor of Bard Ranch, Inc., to the full extent sought, the ownership claims it made were essentially denied, and Bard's appeal seeks to have that determination reversed and adjusted. In part, we have done so. The parties are in accord that the result in this case influences, and perhaps substantially controls, the disposition of the other appeals.
The record discloses that in 1883 the Chugwater Ditch No. 1 was constructed, and lands in Section 5, T. 23 N., R. 67 W., 6th P.M., and in Sections 21, 28, 29, and 32, T. 24 N., R. 67 W., 6th P.M., were irrigated by water conveyed through that ditch. The course of the ditch as then constructed was from its headgate in Section 8, T. 23 N., R. 67 W., 6th P.M., across Section 5 in the same Township, and then through Sections 32, 29, 28, and into Section 21 in T. 24 N., R. 67 W., 6th P.M. In 1904 the Chugwater Ditch No. 1 was extended in a generally north-northeasterly direction to convey water to irrigate lands in Sections 10 and 15, T. 24 N., R. 67 W., 6th P.M. At this time the course of the Chugwater Ditch No. 1 as extended by the Enlargement of the Chugwater Ditch No. 1 was from its headgate in Section 8, T. 23 N., R. 67 W., 6th P.M., across Section 5 in the same Township, and then through Sections 32, 29, 28, 21, 16, 15, and into Section 10 in T. 24 N., R. 67 W., 6th P.M. Early maps manifest the existence of such a ditch in Section 21, although the particular name to be attached to that ditch is the subject of considerable confusion.
The appropriation of water which was obtained in connection with the Enlargement of the Chugwater Ditch No. 1 was for 2.18 c. f. s., and it is identified as Permit 1186 Enl. in the office of the State Engineer. This appropriation was obtained by George Milne, a predecessor in interest of Swan Land and Cattle Company, Ltd., and for purposes of this case also a predecessor in interest of Bard Ranch, Inc. The next event of significance in this case is the construction of the Cooley Ditch in 1914, as briefly described earlier. The Cooley Ditch originally was built by H. W. Meglemre, and the appropriation of water sought in the permit application in connection with which he built the Cooley Ditch was for lands in Section 16, T. 24 N., R. 67 W., 6th P.M., which, of course, is south and west of Section 10, and west of Section 15. This appropriation is identified by Permit No. 15740 in the office of the State Engineer, and it was for 1.89 c. f. s. The permit map submitted in connection with this permit application shows the Enlargement of the Chugwater Ditch No. 1 as a part of the means of conveyance for the 1.89 c. f. s. for which the appropriation was certified.
For this history to be meaningful in connection with the issues of this case it is important to bear in mind that essentially the Swan Land and Cattle Company, Ltd., was the predecessor in interest of Bard Ranch, Inc. H. W. Meglemre was the predecessor in interest of the Webers. A The contract readily lends itself to the inference that it was made in settlement of potential legal questions between Meglemre, who technically was a trespasser, and Swan Land and Cattle Company, Ltd., which had a need and a desire to shorten the distance of its transportation of its water appropriation for Sections 10 and 15, T. 24 N., R. 67 W., 6th P.M. The contract also readily lends itself to the construction that in addition to the Cooley Ditch it was intended that Meglemre's right to carry water to Section 16 through the Enlargement of Chugwater Ditch No. 1 was formalized. After the execution of this contract, and in accordance with its terms, Swan Land and Cattle Company, Ltd., did obtain a change in the point of diversion for Permit No. 1186 Enl. for 2.18 c. f. s., which previously had been conveyed through the Chugwater Ditch No. 1 and the Enlargement of Chugwater Ditch No. 1, to the Cooley Ditch. appropriation were moved from the Cooley At later times portions of the 2.18 c. f. s. Ditch into other ditches, and from time to time since 1920 the parties or their predecessors in interest have used the Cooley Ditch for the conveyance of other water rights, with the current rights actually so conveyed being summarized in footnote 1 of this opinion.
complication is injected by the fact that Swan Land and Cattle Company, Ltd., at the time the Cooley Ditch was constructed, owned Section 21, T. 24 N., R. 67 W., 6th P.M., in which the Cooley Ditch and a part of the Enlargement of Chugwater Ditch No. 1 are situated. Several years after the construction of the Cooley Ditch, the Swan Land and Cattle Company, Ltd., and H. W. Meglemre, who at that time owned Section 16 in T. 24 N., R. 67 W., 6th P.M., entered into a written contract pertaining to the Cooley Ditch. This contract is dated March 12, 1920, and because of its significance in connction with these cases, it is reproduced in full, except for certain formal parts, as an...
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