Delta Canal Co. v. Frank Vincent Family Ranch, LC, 20120470.

• Citation: 420 P.3d 1052
• Decision Date: 19 November 2013
• Docket Number: No. 20120470.,20120470.
• Parties: DELTA CANAL CO., Melville Irrigation Co., Abraham Irrigation Co., Deseret Irrigation Co., and Central Utah Water Co., Plaintiffs and Appellants, v. FRANK VINCENT FAMILY RANCH, LC, Defendant and Appellee.
• Court: Supreme Court of Utah

420 P.3d 1052

DELTA CANAL CO., Melville Irrigation Co., Abraham Irrigation Co., Deseret Irrigation Co., and Central Utah Water Co., Plaintiffs and Appellants,

v.FRANK VINCENT FAMILY RANCH, LC, Defendant and Appellee.

No. 20120470.

Supreme Court of Utah.

Nov. 19, 2013.

Rehearing Denied November 13, 2013.

John H. Mabey Jr., David C. Wright, Salt Lake City, Richard Waddingham, Delta, for appellants.

Edwin C. Barnes, Steven E. Clyde, Robert D. Andreasen, Jonathan S. Clyde, Salt Lake City, for appellee.

John E. Swallow, Att'y Gen., Norman K. Johnson, L. Ward Wagstaff, Julie I. Valdes, for amicus curiae.

Justice DURHAM authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice NEHRING, Justice PARRISH, and Justice LEE joined.

AMENDED OPINION

Justice DURHAM, opinion of the Court:

INTRODUCTION

¶ 1 Appellants Delta Canal Company, Melville Irrigation Company, Abraham Irrigation Company, Deseret Irrigation Company, and Central Utah Water Company (collectively, Irrigation Companies) and Appellee Frank Vincent Family Ranch, LC (Vincent) are water-rights holders on the Sevier River system. The Irrigation Companies claim that Vincent's water right has been partially forfeited and partially abandoned. The district court granted summary judgment to Vincent. We reverse and remand.

BACKGROUND

¶ 2 The Irrigation Companies are nonprofit Utah corporations that distribute water to their shareholders for irrigation of agricultural land in Millard County. They filed a complaint in district court alleging that Vincent's water right had been partially forfeited and partially abandoned.

¶ 3 The water right in question was awarded to the Samuel McIntyre Investment Company (McIntyre) in 1936 during a general adjudication of the Sevier River system.¹ Leading up to the general adjudication, the state engineer catalogued all water usage in the Sevier River system and prepared a proposed determination of water rights. The state engineer proposed to award McIntyre 5,000 acre feet of water annually to irrigate 1,051.5 acres of land.

¶ 4 The district court heard and addressed objections to the proposed determination and then issued a final decree, referred to as the "Cox Decree." The Cox Decree awarded McIntyre twenty-two cubic feet of water per second from March 1 through October 1 of each year. This water included a storage component from April 16 to October 1, permitting McIntyre to store 90% of its allocation in the Sevier Bridge Reservoir for future use.

¶ 5 Vincent purchased this water right in 1998, when it also purchased the McIntyre farm. Vincent has used the farm and water right to grow crops, such as corn, hay, and alfalfa, and to run a commercial bird-hunting operation.

¶ 6 The Irrigation Companies allege that during the twenty-year limitations period preceding the filing of their complaint in 2008,² Vincent and its predecessor forfeited and abandoned a portion of the water right. They allege that from 1988 to 1998, McIntyre irrigated only 830 of its 1,051.5 acres, and that after 1998, Vincent cultivated fewer than 900 of the 1,051.5 acres.

¶ 7 Vincent contends that it was unable to cultivate all 1,051.5 acres because in times of water shortages, the Sevier River Commissioner reduced its diversion right. Vincent further argues that it should not be faulted for failing to use water between March 1 and April 15 because water could not be beneficially used while the ground was unprepared and sometimes frozen, and there was no storage right during this period. Vincent also defends on the grounds that it irrigated many acres of natural habitat for commercial bird hunting.

¶ 8 The parties also disagree on the purely legal question of whether partial forfeiture and partial abandonment were available in Utah before 2002. In 2002, the legislature amended Utah Code section 73–1–4 (the Forfeiture Statute) to clarify that partial forfeiture was an available remedy. See 2002 Utah Laws 120. As amended, the Forfeiture Statute provided that "the water right or the unused portion of that water right " could be forfeited. UTAH CODE § 73–1–4(3)(a) (subsequent to 2002 amendments) (emphasis added). Before the amendment, the code stated only that "the water right" could be forfeited. UTAH CODE § 73–1–4(1)(a) (prior to 2002 amendments).

¶ 9 The district court held that Utah law did not provide for partial forfeiture or partial abandonment before 2002, and that Vincent was protected from partial forfeiture and partial abandonment after 2002 by an exception located in Utah Code section 73–1–4(3)(f)(i) (subsequent to 2002 amendments). See 2002 Utah Laws 120. This exception stated that "[t]he provisions of this section shall not apply ... to those periods of time when a surface water source fails to yield sufficient water to satisfy the water right, or when groundwater is not available because of a sustained drought." The court held that because Vincent did not receive an uninterrupted flow of twenty-two cubic feet of water per second during any years between 2002 and the filing of the complaint, the Irrigation Companies were "precluded from claiming either a partial forfeiture, or a partial abandonment." The court granted summary judgment to Vincent, and the Irrigation Companies appealed. We have jurisdiction under Utah Code section 78A–3–102(3)(j).

STANDARD OF REVIEW

¶ 10 "We review a district court's grant of summary judgment for correctness." Basic Research, LLC v. Admiral Ins. Co., 2013 UT 6, ¶ 5, 297 P.3d 578 (internal quotation marks omitted).

ANALYSIS

¶ 11 We begin by examining the pre–2002 Forfeiture Statute in conjunction with Utah Code section 73–1–3 (the Beneficial Use Statute). We determine that the pre–2002 Forfeiture Statute unambiguously permitted partial forfeiture. We next conclude that the exception located in Utah Code section 73–1–4(3)(f)(i) (subsequent to 2002 amendments) is a codification of the physical-causes exception—not a rule that forfeiture can never occur when a water right is not fully satisfied. We also clarify that abandonment is a common-law cause of action that requires a showing of intent to relinquish. Finally, we clarify the proper measure of Vincent's water right and address other issues likely to arise on remand.

I. PARTIAL FORFEITURE HAS ALWAYS BEEN AVAILABLE IN UTAH BECAUSE IT IS INHERENT IN THE PRINCIPLE OF BENEFICIAL USE

A. Partial Forfeiture in Our Case Law

¶ 12 The parties dispute whether partial forfeiture was available in Utah before 2002. Vincent argues that it was not available, relying in part on Eskelsen v. Town of Perry, 819 P.2d 770, 775 n. 9 (Utah 1991), where we stated in dicta that "[t]he question of partial forfeiture is not addressed in our statutes and has never been directly before this court...." But closer investigation of our case law reveals that this court has always assumed that partial forfeiture was an available remedy.

¶ 13 In 1897, we stated,

The great weight of modern authority is to the effect that when an appropriator permits part of the water appropriated to run to waste, or fails to use a certain portion of it for some beneficial use or purpose, he can only hold that part of the water which has been actually applied to a beneficial use, and his right is limited to the quantity so used.

Becker v. Marble Creek Irrigation Co., 15 Utah 225, 49 P. 892, 893 (1897) (emphasis added). In 1943, we heard an appeal involving an allegation of partial forfeiture of a water right. Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 104 Utah 202, 135 P.2d 108 (1943). We declared that "if there were a five year continuous period during which [the appropriator] failed to use material amounts of available water, we should hold that a forfeiture of at least part of its right has occurred by virtue of this nonuse." Id. at 112 (emphasis added). We then applied this standard to the facts of the case and determined that no forfeiture had occurred because the appropriator had fully used its water right in one relevant year and was protected by the "physical causes" exception³ in other years. Id. at 111–13.

¶ 14 More recently, in Eskelsen, we noted that "all of the policy reasons that support forfeiture as a general principle would be furthered by, and hindered without, partial forfeiture." 819 P.2d at 775 n. 9. Finally, in 1997, we said that "[t]he extent of anyone's right to use water ... is limited to that amount which can be put to beneficial use. Thus, the nonuse of water for five years by an appropriator works a loss of the right to the unused water. ..." Platt v. Town of Torrey, 949 P.2d 325, 331–32 (Utah 1997) (emphasis added) (citation omitted).

¶ 15 These cases, which span a century, show that this court recognized and applied the doctrine of partial forfeiture long before 2002. Although we have not previously linked the doctrine of partial forfeiture to statutory language, we have always acted on the assumption that partial forfeiture was available. This appeal presents us with the opportunity to situate the doctrine of partial forfeiture within our statutes.

B. The Language of the Forfeiture Statute

¶ 16 "Our primary objective when interpreting statutes is to give effect to the legislature's intent." State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780 (internal quotation marks omitted). To discern legislative intent, we begin by examining a statute's plain language and construing it "in harmony with other statutes in the same chapter and related chapters." Id. (internal quotation marks omitted). "When viewing the act as a whole does not eliminate duplicative yet plausible meanings, the statute is ambiguous, and we may resort to extrinsic interpretive tools to resolve the ambiguity." R & R Indus. Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar. Ass'n, 2008 UT 80, ¶ 26, 199 P.3d 917 (internal quotation marks omitted).

¶ 17 Before 2002, the Forfeiture Statute provided,⁴

When an appropriator or the appropriator's successor in interest abandons or ceases to use water for a period of five years, the water

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