Cupps v. Pioneer Canal-Lake Hattie Irrigation Dist.
| Decision Date | 13 December 2019 |
| Docket Number | No. 18-8024,18-8024 |
| Parties | C. MARK CUPPS; MARK B. KOENIG; CHERYL L. KOENIG; DALE M. CARLSON; PEGGY CARLSON; JOHN E. MCINROY; ANN W. PECK; PHILLIP KOSKI; ANDREA KOSKI; ESTHER SANDOVAL; KAY YUEN HING REVOCABLE TRUST; FLOYD A. BARBOUR; WILLIAM G. CUTLER; BRUCE R. SMITH; DEBRA J. SMITH; JOSEPH RUPINKSKI, JR.; LARRY WEYHRICH; KATHY WEYHRICH; LARAMIE BOAT CLUB, INC.; BARBARA J. BARBOUR, Plaintiffs-Appellants, v. PIONEER CANAL-LAKE HATTIE IRRIGATION DISTRICT, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Wyo.)
ORDER AND JUDGMENT*Before HOLMES, McKAY, and MORITZ, Circuit Judges.
Plaintiffs-Appellants ("Landowners"), who own land adjacent to Wyoming's Lake Hattie Reservoir, seek review of findings of fact and conclusions of law in favor of Defendant-Appellee Pioneer Canal-Lake Hattie Irrigation District ("Irrigation District"), which owns and operates the reservoir.
According to the Landowners, the Irrigation District allowed reservoir water to encroach on their land, impermissibly exceeding the boundaries of a right-of-way approved under the Act of March 3, 1891, 26 Stat. 1095, 1101-02 (1891) ("Act").1 Following a bench trial, however, the district court ruled against the Landowners, finding that the Irrigation District had not exceeded its right-of-way.
For reasons set forth below, we agree with the Landowners that the district court's reasoning was erroneous and conclude that the judgment cannot otherwise be upheld. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for additional proceedings consistent with this opinion.
As relevant here, the Act permitted canal and ditch companies to obtain rights-of-way through certain public lands "to the extent of the ground occupied by the water of [a] reservoir and of [a] canal and its laterals, and fifty feet on each side of the marginal limits thereof." 26 Stat. at 1101. The Act continued:
Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the Department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.
Id. at 1101-02 (second emphasis added).
To "secure the benefits of" the Act, a company had to "file with the register of the land office for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of the Interior [("Secretary")] the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way." Id. at 1102. The Act applied to "all canals, ditches, or reservoirs, heretofore or hereafter constructed, . . . on the filing of the certificates and maps herein provided for." Id.
In 1908, the Department of the Interior ("Department") adopted regulations for obtaining a right-of-way under the Act. See Regulations for Rights of Wayover Public Lands and Reservations, 36 Pub. Lands Dec. 567 (Dep't of Interior June 6, 1908). They required a company seeking to obtain the benefits of the Act to file field notes of a survey and a map, among other things, with the register of the land district in which the reservoir would be located. Id., ¶¶ 8, 8(j), 10, 11. The field notes and map, the regulations said, "should" create a "record . . . so complete that from it the surveys could be accurately retraced by a competent surveyor with proper instruments." Id., ¶ 10. The "line of survey" set forth in those documents, the regulations added, "should be . . . , as exactly as possible, the water line of the proposed reservoir." Id. The map had to be "strictly conformable to the field notes of the survey." Id., ¶ 11. Once the Secretary approved the map, the "lines of [the reservoir], as laid down on the map," would be marked on township plats by local officials. Id., ¶ 22. Following the construction of the reservoir, "[n]o new map" was required, "unless there [were] deviations from the right of way previously approved, either before or after construction," in which case "new maps and field notes in full" had to be filed. Id., ¶ 23. Any new map had to "show clearly" or describe "the portions amended[,]" and the location had to be "described in the forms as the amended survey and the amended definite location." Id. (emphases added).
In the early 1900s, engineer Z.E. Sevison sought permission from the State of Wyoming to store water at the reservoir site. According to one of his applications, which the State ultimately approved, the dam at the site would rise eight feet above the water line when the reservoir was full. A map accompanying that application showed a high-water line at an elevation of 7,290 feet.2
In 1909, the Irrigation District's predecessor-in-interest submitted to the Department a map of the boundaries of a proposed Lake Hattie Reservoir for approval of a right-of-way under the Act. The project's chief engineer, W.H. Rosecrans, certified on the face of the map that the surveys of the reservoir and its canals "represent level lines, which are the proposed water lines of the reservoirs and the proposed grade lines of the canals, and that such surveys are accurately represented on the accompanying map and by the accompanying field notes." See Aplts.' App., Vol. I, at 119 (1909 Map). The map further certified that the surveys were "correctly represented on this map and by the accompanying field notes" as the "definite location" of the reservoir and canals. See id. Fieldnotes accompanying the map stated that, "[i]n running the line of the reservoir[,] the distances were determined by stadia on a self-reading rod divided into feet and tenths, which served at the same time as a level rod to determine the true water line." Id. at 105 (Field Notes). In 1911, the Department approved the map and the related application for a right-of-way under the Act.
A 1912 engineering report on the Lake Hattie project stated that the reservoir's high-water mark was 7,278 feet and that the dam rose to 7,285 feet. The district court found that those figures "have remained the same over time." Id. at 86 ().
In 1923, the Irrigation District's predecessor-in-interest submitted to the Department two affidavits as proof of construction. The first, from an official of the predecessor-in-interest, stated that the reservoir had been constructed in conformity with the approved map and field notes and in full compliance with the Act. The second affidavit was from a civil engineer who had surveyed the reservoir and supervised its construction. The engineer stated:
[T]hat the traverse of the shore line of [the reservoir] when filled to full capacity level is as given in the Field Notes accompanying [the application] . . . ; and that [the reservoir] as constructed conforms to the map and accompanying field notes . . . which were approved by the First Assistant Secretary of the Interior [in] 1911.
Id. at 128-29 (Bishop Aff., dated Nov. 7, 1923). Following the submission of those affidavits and other documents, the Department concluded that, with oneexception not now relevant, the reservoir had been "constructed and completed exactly in conformity with the specifications" and, thus, that "the easement [was] earned." Id. at 133-34 (Dep't of Interior Letter, dated Nov. 27, 1923).
In 1938, Congress passed the Small Tract Act, which authorized the Secretary to sell and lease small tracts of "vacant, unreserved, surveyed public land" for use as, inter alia, a home, cabin, or business site. See Act to Provide for the Purchase of Public Lands for Home and Other Sites, 52 Stat. 609 (1938). In 1949 and 1950, in apparent preparation for leasing land near the reservoir under the Small Tract Act, the Bureau of Land Management ("BLM") performed a re-survey of the reservoir and surrounding area.
In preparation for the re-survey, the BLM's Regional Chief of Engineering advised a local surveyor to "secure a copy of the traverse of the highwater line of Lake Hattie" and "copies of the field notes showing the bearings and distances along this right-of-way." Aplts.' App., Vol. I, at 136 (Bandy Letter, dated Sept. 28, 1949). The surveyor responded that he had located the 1909 map, which "seem[ed] to be the only relevant map . . . fixing the definite limit on the right of way granted for the reservoir." Id. at 137 (Naret Letter, dated Sept. 30, 1949). The surveyor further opined, however, that the map was of "doubtful value" because it omitted "numerous courses and distances describing the traverse of thereservoir." Id. The surveyor also stated that he had not located the field notes, which he "consider[ed] essential." Id.
The BLM issued "Special Instructions" for performing the re-survey and ultimately dividing the land into tracts. The Special Instructions provided, inter alia, that surveyors should survey the boundaries of the reservoir right-of-way as described in the 1909 map and field notes. Surveyors were also instructed that a "boundary line" for tracts facing the reservoir should be kept at "approximately ten feet vertical height above the present water level, and should also be kept a minimum of forty feet from the right-of-way boundary." Id. at 140 (BLM Special Instructions, dated Oct. 6, 1949). This was intended to "leave a passage way at least forty feet in width between the right-of-way boundary and the lots, and to keep the lots above the high water elevation of the reservoir." Id.3
According to field notes from the re-survey, surveyors used the 1909 map as a reference point and may have located old surveyor's stakes remaining fromthe original survey. The plat ultimately resulting from the...
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