Bingham v. Roosevelt City Corp.

Decision Date14 May 2010
Docket NumberNo. 20081061.,20081061.
Citation235 P.3d 730,2010 UT 37
PartiesMelvin BINGHAM, Glenda Bingham, Howard Horrocks, Ila Faye Horrocks, Virginia Houston, Fern Oberhansly Labrum, Kent Nelson, George Richins, and Loraine Richins, Plaintiffs and Appellants,v.ROOSEVELT CITY CORPORATION, Defendant and Appellee.
CourtUtah Supreme Court

COPYRIGHT MATERIAL OMITTED

J. Craig Smith, Kathryn J. Steffey, Bryan C. Bryner, Salt Lake City, for plaintiffs.

David L. Church, Salt Lake City, for defendant.

Donald E. McCandless, Provo, for amici Living Rivers and Great Basin Water Network.

DURRANT, Associate Chief Justice:

INTRODUCTION

¶ 1 In this case, several individuals who own property in the North Hayden Area (collectively, the “North Hayden Group” or the “Group”) appeal the district court's grant of summary judgment against them. The North Hayden Group alleges that nearby Roosevelt City (the City) has diverted water from the Neola-Whiterocks aquifer in a manner that lowers the surrounding water table and makes the soil less saturated. This diminution in soil saturation, the Group alleges, has made it more costly for Group members to irrigate their land and has impaired their ability to raise crops and livestock. The Group's complaint asserted that the City's pumping was negligent, interfered with the Group's water rights, and amounted to an unconstitutional taking of the value of the Group's property. The City moved for summary judgment on several grounds. First, it contested the Group's takings, interference, and negligence claims on their merits. It also asserted that the Group's claims were barred by the relevant statutes of limitations and that the Group's interference claim was barred by Utah's governmental immunity statutes. The district court granted summary judgment in favor of the City with regard to all of these issues. The North Hayden Group appeals. We affirm in part and reverse in part.

BACKGROUND

¶ 2 In 1983, Roosevelt City purchased property, including two wells and the associated water rights, in the North Hayden area.1 After purchasing the property, the City filed various change applications with the Utah State Engineer to change the point of diversion for two of its existing water rights to the location of the two wells. The City rehabilitated and deepened the two existing wells and eventually drilled three additional wells, culminating in five wells known collectively as the Hayden Well Field. Members of the North Hayden Group protested the change applications filed with the Office of the State Engineer and also protested the drilling of the additional three wells. Despite these protests, by the fall of 1990, all five wells in the Hayden Well Field were pumping water for the City.

¶ 3 The wells that constitute the Hayden Well Field draw water from the Neola-Whiterocks aquifer, an unconfined, shallow aquifer underlying the Hayden area. Historical data indicate that, before the Hayden Well Field was established, the static water level in the area was 14.3 feet below ground surface. In the years since the wells became active, this level has dropped dramatically in 2008 the water level at one of the wells was 94.6 feet below the surface. This change is the result of the geologic and hydrologic characteristics of the area. One key characteristic of unconfined aquifers, like the Neola-Whiterocks aquifer, is that water can be drawn through the soil into the aquifer. Thus, if water is extracted from the aquifer more quickly than it is naturally replenished, the water table in the surrounding area will drop. Because of the nature of this phenomenon, the underground area of reduced soil saturation 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. Accordingly, the depth of the water table will be most significantly impacted at the point of extraction, but even as one moves away from this point, the water table will be lower than it otherwise might be. Therefore, the effects on the water table are apparent even on parcels of land that are not immediately adjacent to the wells.

¶ 4 This type of aquifer is different from a confined aquifer. Confined aquifers are separated from the adjacent soil by a layer of less permeable stone. When confined aquifers are depleted, this layer of less permeable material prevents water from being drawn into the aquifer through the soil. This in turn makes the impact on the water table in the surrounding area far less dramatic. The North Hayden Group asserts that beneath the Neola-Whiterocks aquifer, there exists a confined aquifer-the Duchesne River Formation-from which the City could extract its water without so dramatically impacting the water table in the surrounding area. But because the wells extract water instead from the unconfined aquifer, each additional year of pumping causes the water table to continue to decrease.

¶ 5 Members of the North Hayden Group have suffered various injuries as a result of this change in the water table. After the wells were put into production, trees and grass died. Members of the Group are no longer able to irrigate their lands effectively because the irrigation water is now quickly absorbed and drawn deep into the soil, past the root systems of the crops and pasture vegetation, to replenish the aquifer. Thus, raising crops and livestock is much more costly in some instances and practically impossible in others.

¶ 6 The North Hayden Group filed suit against the City on June 3, 2004, seeking damages and injunctive relief. The Group asserted three causes of action: interference with water rights, takings, and negligence. The complaint did not allege that the City used any water right or water source for which it did not have an approved water right certified by the State Engineer. Nor does the Group claim any interest in the water being appropriated by the City. Rather, the Group claimed that it has various interests in other water rights and that the City's actions have had a negative impact on these water rights. Specifically, because its members' water is being drawn down through the soil, the Group asserted that the quantity of water to which they are entitled is no longer sufficient to irrigate their land effectively.

¶ 7 As a result, the Group claims that its members can no longer grow hay, pasture their cattle, or derive income from their properties, and that both their water rights and land have lost substantially all of their value. The Group members alleged that these losses were a result of the continuous pumping of the Hayden Well Field, which lowered the water table under their properties.

¶ 8 The City moved for summary judgment based on a number of theories. First, the City challenged the merits of each of the Group's claims. With regard to the Group's takings claims, the City argued that the property interests asserted by the Group are not protected by the takings clauses of the United States and Utah Constitutions. With regard to the Group's claim of interference, the City argued that the Group could not prevail on such a claim because the undisputed facts show that the City is pumping water that it has lawfully appropriated and to which the Group has no rights. The City challenged the Group's negligence claim by arguing that it did not owe the Group any duty to preserve the water table at historic levels.

¶ 9 The City also argued that the Group's claims were barred by the applicable statutes of limitations because the wells were drilled decades ago and the Group members for years have known, or should have known, that the City's pumping was causing the harms alleged in this case. Finally, the City argued that the Group's interference claim was barred by the Governmental Immunity Act of Utah. The district court ruled in favor of the City on each of these issues. On appeal, the North Hayden Group challenges all of these determinations. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j) (2008 & Supp.2009).

STANDARD OF REVIEW

¶ 10 “An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” 2

ANALYSIS

¶ 11 In analyzing the district court's grant of summary judgment, we address each issue in turn. We begin by addressing the Group's takings claim. We then address the Group's claim that Roosevelt City's conduct constitutes interference with the Group's water rights. Although we affirm the district court's grant of summary judgment in favor of the City with regard to these two claims, we find that the district court erred in its analysis of the Governmental Immunity Act of Utah. We then address the Group's negligence claim. Finding that the continuing tort doctrine applies, we hold that the district court erred in its determination that this claim was barred by the statute of limitations. Finally, we hold that the City owes a duty of reasonable care to parties who will foreseeably be injured by its method of diverting water. Accordingly, we reverse the district court's determination to the contrary and remand for further proceedings.

I. THE NORTH HAYDEN GROUP HAS NOT SUFFERED A COMPENSABLE TAKING AS A RESULT OF ROOSEVELT CITY'S USE OF LAWFULLY APPROPRIATED WATER RIGHTS

¶ 12 The City's diversion of water, even to the extent it has lowered the water table and altered the amount of water in the soil, has not unconstitutionally taken property from the North Hayden Group. The Group contends that both the Utah Constitution and the United States Constitution prohibit the City from negatively impacting the water level in the Group members' soil without providing just compensation for the corresponding diminution in property value. The district court disagreed, concluding that the Group members have no protectable interest in the level of water in the soil beneath their land. We affirm...

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