Cremer v. State Bd. of Control, s. 5793

• Decision Date: 09 January 1984
• Docket Number: 5794,Nos. 5793,s. 5793
• Citation: 675 P.2d 250
• Parties: Curtis (Buddy) CREMER, Appellant (Petitioner), Frank Bosler, (Petitioner), v. STATE BOARD OF CONTROL, Schmid Properties, Inc., and Laramie Valley Municipal Irrigation District, Appellees (Respondents). Frank BOSLER, Appellant (Petitioner), Curtis (Buddy) Cremer, (Petitioner), v. STATE BOARD OF CONTROL, Schmid Properties, Inc., and Laramie Valley Municipal Irrigation District, Appellees (Respondents).
• Court: Wyoming Supreme Court

Page 250

675 P.2d 250

Curtis (Buddy) CREMER, Appellant (Petitioner), Frank Bosler, (Petitioner), v. STATE BOARD OF CONTROL, Schmid Properties, Inc., and Laramie Valley Municipal Irrigation District, Appellees (Respondents).

Frank BOSLER, Appellant (Petitioner), Curtis (Buddy) Cremer, (Petitioner), v. STATE BOARD OF CONTROL, Schmid Properties, Inc., and Laramie Valley Municipal Irrigation District, Appellees (Respondents).

Nos. 5793, 5794.

Supreme Court of Wyoming.

Jan. 9, 1984.

Rehearing Denied Feb. 1, 1984.

Jack R. Gage of Hanes, Gage & Burke, P.C., Cheyenne, for appellant cremer.

Jay Dee Schaefer of Jay Dee Schaefer & Associates, Laramie, for appellant Bosler.

A.G. McClintock, Atty. Gen., Walter Perry, III, Sr. Asst. Atty. Gen., John D. Erdmann, Asst. Atty. Gen., Cheyenne, for appellee State Board of Control.

William R. Jones and Eric M. Alden of Jones, Jones, Vines & Hunkins, Wheatland, for appellee Schmid Properties, Inc.

C.M. Aron of Aron & Hennig, Laramie, for appellee Laramie Valley Municipal Irr. Dist.

Before ROONEY, C.J., and RAPER, ^* THOMAS, ROSE and BROWN, JJ.

ROSE, Justice.

On August 20, 1980 a petition in abandonment was filed with the Wyoming Board of Control, the purpose of which was to seek the abandonment of water rights and water works authorities associated with James Lake in Albany County, Wyoming, in which appellants Bosler and Cremer had an interest. ¹

On the 2nd of September, 1981, the Board of Control responded to the abandonment petition by ordering water rights in James Lake Reservoir and Supply system to be partially abandoned in that the order limited storage in the lake to three feet above the bottom of its outlet, which limitation represented an abandonment of approximately 90% of the reservoir capacity. The Board abandoned one of appellants' sources of water supply and drastically reduced the capacity in their water transfer canal, thus inhibiting its ability to transport water from its principal remaining sources. Further, the Board abandoned all of the appellants' distribution system downstream from the reservoir as well as all of their secondary permits.

James Lake--some 18 miles northwest of the city of Laramie, Wyoming--is a shallow, natural basin located at the terminus of Seven Mile Creek which flows out of the mountains west of Laramie. Beginning in 1908 the James Lake Reservoir Company undertook to obtain various permits from the State Engineer for the purpose of constructing and operating an irrigation system in the James Lake area. The acquisition of permits continued through 1912, construction of the system was accomplished in the very early part of the century, and beneficial use was established on the land described in the permits prior to 1925.

Appellee Schmid Properties, Inc. (hereinafter referred to as Schmid, Inc.) owns the Hunt Ranch attached to which are various upstream underlying or base ² water rights on streams and ancillary drainages which also serve the James Lake system. The underlying or base Hunt appropriations carry priorities which predate 1945 and are senior to the same classification of James Lake permits in which the appellants have

an interest and which, as has been noted, also predate the year 1945. ³

THIS COURT'S HOLDING

We will reverse the court of first instance which had affirmed the order of the Board of Control and we will hold that, since Schmid, Inc.'s pre-1945 water rights were senior to appellants' pre-1945 rights, and it appearing that appellee Schmid, Inc. does not complain that these rights are not being serviced, it follows that, absent the enactment of the surplus water act of 1945, the appellees would have no standing to bring abandonment against the underlying or base rights of the appellants. ⁴ We will further hold that the surplus water act did not serve to confer upon Schmid, Inc. such standing as would permit it to successfully petition in abandonment in the case at bar.

SCHMID, INC.'S CONTENTION

Schmid, Inc. contends it has standing to bring abandonment proceedings against the base or underlying as well as the surplus water rights of the appellants under § 41-3-401(b), W.S.1977 which provides:

"When any water user who might be affected by a declaration of abandonment of existing water rights, desires to bring about a legal declaration of abandonment, he shall present his case in writing to the state board of control." ⁵ (Emphasis added.)

Schmid, Inc.'s legal position comes more sharply into focus when its brief and hearing contentions are taken into account. In its brief, Schmid, Inc. says:

"Appellants state in their briefs that all of the Hunt Ranch's water rights are senior to the rights being abandoned. This is simply not true. Like all water rights in existence in Wyoming as of March 1, 1945, the Hunt Ranch permits have two water rights attached to them. The first right has a priority date based on the time of filing of the original application for a permit, the second right, in the amount of 1 c.f.s. per 70 acres, has a priority date of March 1, 1945, pursuant to § 41-4-320. It is this second right, the right created by the Wyoming Surplus Water Law, which will be affected by a declaration of abandonment of the permits in question in this action." (Emphasis added.)

Schmid, Inc.'s attorney took a similar position in arguing against the contestee's motion to dismiss the abandonment petition before the water superintendent who conducted the motion hearing. Schmid, Inc.'s counsel was addressed by the superintendent:

"Mr. Jones, I would like to ask you to explain more fully your position that you could be injured on the basis of your surplus water assignment.

"MR. JONES: The existence of these rights, all of which we are seeking to have abandoned, are rights which, if they are determined to be validly existing, will be entitled to satisfaction prior to the time that the rights of the Petitioner would receive a double appropriation. And that's the position." (Emphasis added.)

It is, then, the contention of Schmid, Inc. that it and the appellants are possessed of two classes of water rights upon the same stream system--i.e., (1) water rights under pre-1945 adjudication and (2) surplus water rights under the legislative adjudication of March 1, 1945. Schmid, Inc. argues that, in passing the surplus water act of 1945, it was the intention of the legislature to cause surplus water rights to become junior to pre-1945 rights, thereby bestowing

such standing under the abandonment statute, § 41-3-401(b), as would permit any surplus user on a stream system to bring abandonment proceedings against pre-1945 and surplus water rights of any other user on the same water system.

APPELLANTS' CONTENTION

It is the appellants' contention that Schmid, Inc. has no standing to bring abandonment proceedings because its appropriation will not be "affected" under the abandonment statutes in that:

(1) The benefit which Schmid, Inc. seeks through abandonment is not such "benefit" as is concerned with the protection of its water rights, and

(2) The surplus water statute, § 41-4-324, prohibits the diversion or taking of water "other than surplus water," and the appellee Schmid, Inc. seeks, contrary to law, to take the water authorized by the appellants' pre-1945 permits which is not "surplus water."

THE BOARD OF CONTROL'S DECISION

Prior to the proceedings before the Board of Control, Bosler and Cremer joined in a motion to dismiss the abandonment petition upon the grounds that Schmid, Inc. was not possessed of standing to complain since Schmid, Inc. was receiving all of the water to which it was entitled under both appropriations, and therefore could not be said to be a "water user who might be affected by a declaration of abandonment of existing water rights." (§ 41-3-401(b), supra.) The motion was denied for the reason that the abandonment of the appellants' water rights would result in a "benefit" to Schmid, Inc. In its Findings of Fact, the Board found:

"15. THAT * * * a declaration of abandonment would benefit the Petitioner by allowing the continued use of surplus waters from Four Mile and Seven Mile Creeks to supply its prior rights, since only so much of the water rights from these sources not abandoned by this order could be used to fill the James Lake Reservoir * * *. Similarly, the Petitioner's prior right on the Snake Ditch would be benefited by continued use of surplus flows in the Little Laramie River and Mill Creek, when available, because the appropriations to supply James Lake Reservoir would be reduced or eliminated." (Emphasis added.)

In its Conclusions of Law the Board says, at p 4:

" * * * The Petitioner has standing to have its Petition for Abandonment heard and decided by the State Board of Control. Its standing pertains to all of the permits in question. As against the diversions from the Little Laramie River and Mill Creek, the Petitioner is affected because of its prior downstream rights in the Snake Ditch. And as against the impoundment of the Seven Mile Creek flood flows and the diversion of Four Mile Creek waters into James Lake Reservoir, the Petitioner is affected because of its direct flow water rights in the same two sources of supply. Under the Surplus Water Law, W.S. 41-4-317 through W.S. 41-4-324, the Petitioner and its predecessors have enjoyed a 1945 junior priority right to the distribution of the surplus waters from all four sources of supply. If this petition is not granted, the Petitioner could lose the benefit of its surplus water rights due to demands for regulation of these sources of supply for the purpose of filling James Lake Reservoir." (Emphasis added.)

The sum and substance of the Board's resolution of the issue is that Schmid, Inc. had standing to bring abandonment because it was an appropriator whose surplus water adjudication made its rights junior to the appellants' base rights and, because it would "benefit" from the abandonment of Bosler's and Cremer's water...