DeWitt v. Balben, s. 85-127

• Decision Date: 23 April 1986
• Docket Number: 85-128,Nos. 85-127,s. 85-127
• Citation: 718 P.2d 854
• Parties: James H. DeWITT II, George E. Baker II, Anne T. DeWitt, Hillcrest Investment Partnership, a Wyoming partnership, and Hillcrest Water Inc., a Wyoming corporation, a/k/a Hillcrest Water Company, Appellants (Plaintiffs), v. Edward C. BALBEN, Marion C. Balben and Edward C. Balben and Marion C. Balben d/b/a Hillcrest Development Company, Appellants (Defendants), v. James H. DeWITT II, George E. Baker II, Anne T. DeWitt, Hillcrest Investment Partnership, a Wyoming partnership, and Hillcrest Water Inc., a Wyoming corporation, a/k/a Hillcrest Water Company, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 854

718 P.2d 854

James H. DeWITT II, George E. Baker II, Anne T. DeWitt, Hillcrest Investment Partnership, a Wyoming partnership, and Hillcrest Water Inc., a Wyoming corporation, a/k/a Hillcrest Water Company, Appellants (Plaintiffs), v. Edward C. BALBEN, Marion C. Balben and Edward C. Balben and Marion C. Balben d/b/a Hillcrest Development Company, Appellants (Defendants), v. James H. DeWITT II, George E. Baker II, Anne T. DeWitt, Hillcrest Investment Partnership, a Wyoming partnership, and Hillcrest Water Inc., a Wyoming corporation, a/k/a Hillcrest Water Company, Appellees (Plaintiffs).

Nos. 85-127, 85-128.

Supreme Court of Wyoming.

April 23, 1986.

David F. Palmerlee and Blair Klein, Buffalo, for appellants in No. 85-127 and appellees in No. 85-128.

Harry G. Bondi, Casper, for appellees in No. 85-127 and appellants in No. 85-128.

Before THOMAS, C.J., ROONEY, BROWN, CARDINE, JJ., and RAPER, J., Retired.

BROWN, Justice.

This appeal involves certain water rights to a well. An action was brought by James H. DeWitt II, George E. Baker II, Anne T. DeWitt, Hillcrest Investment Partnership, and Hillcrest Water, Inc. (hereinafter plaintiffs) against Edward C. Balben, Marion C. Balben d/b/a Hillcrest Development Company (hereinafter defendants) ¹ to determine the plaintiffs' rights in a water well located on the defendants' property. After trial to the court, a lengthy judgment was entered. The parties dispute who actually prevailed. In Case No. 85-127, the plaintiffs appeal from the district court's denial of attorney's fees and raise the following issues:

"1. Did the Court err in not awarding reasonable attorney fees to Plaintiffs?

"2. Are Plaintiffs entitled to reasonable attorney fees for prosecuting this appeal and defending the appeal of Defendants on all other issues?"

In Case No. 85-128, the defendants cross-appeal from the court's judgment and raise a number of issues. The arguments in their brief do not track the stated issues. Rather, the issues are embodied in the following arguments, summarized by the defendants as follows:

"Argument I

"The plaintiffs' cause of action to be declared owners of the Leavitt Spring water right is barred by the statute of limitations.

"Argument II

"There is insufficient evidence to support the court's ruling that appellant Balben in the contract of 1980 gave consent to the plaintiffs to enter upon Balben's land to rejuvenate the Leavitt Spring.

"Argument III

"The trial court erred in construing the 1962 'Agreement for Use of Water' to convey all of appellants' right, title, and interest in the Leavitt Spring appropriation.

"Argument IV

"The plaintiffs should be equitably estopped from claiming fee simple ownership of the Leavitt Spring.

"Argument V

"Defendants are entitled to reasonable attorney's fees as set forth in the 1980 'contract'."

We will affirm the decision of the trial court in all respects, save the denial of attorney's fees to the plaintiffs. We will reverse and remand to the district court for a determination of reasonable attorney's fees to be awarded the plaintiffs for fees incurred at trial. We will also award the plaintiffs reasonable attorney's fees incurred on appeal.

The factual and procedural history of the case is long and complex. In 1962, the defendants sold the plaintiffs' predecessors in interest a bottled water business known as the Hillcrest Water Company. As part of the sale, the defendants also granted to the plaintiffs the water rights to two springs located on the defendants' land, as well as the right of ingress and egress upon the defendants' land to maintain the springs. One of the springs is no longer used. The other spring, known as the Leavitt Spring, is the subject of this action.

Between 1970 and 1980, the defendants developed three additional wells upon their land known as Hillcrest Wells Nos. 1, 2, and 3. These wells are in close proximity to the Leavitt Spring, and are used by the defendants to supply water for the Hillcrest Development Company, owned by the defendants. All four wells are supplied from a common source of water. When the defendants developed and used the three Hillcrest wells, the water level in the Leavitt Spring dropped to a point where it was unusable by the plaintiffs. Subsequently, one of the defendants back-filled the Leavitt Spring, destroying the facility and forcing the plaintiffs to obtain their water from an alternate source. The defendants did not allow the plaintiffs to rehabilitate the Leavitt Spring, even though the defendants granted such right in the 1962 sale.

In order to resolve the problem, the parties entered into an agreement in 1980 which again set forth the plaintiffs' right to rehabilitate the Leavitt Spring. Nevertheless, the defendants continued to refuse access to the plaintiffs for the purpose of rehabilitating the Leavitt Spring. Apparently, the defendants sought to place their wells in a priority senior to the plaintiffs' Leavitt Spring by destroying it. As Edward Balben, one of the defendants, stated in a letter to the state engineer on January 6, 1983:

" * * * As I understand the State Engineer's rules, when a Spring has been dormant for over five years it reverts back to the State, which is the case here.

"Naturally Hillcrest Water Co. (Plaintiffs) wants to dig at the dormant (Leavitt) Spring site, even though it would probably eliminate or contaminate Well # 2 and # 3, which are within 25' and 50' of it. To do otherwise would allow Hillcrest Development (Defendants) to have Senior Water Rights * * *."

In any event, the plaintiffs were not allowed to rehabilitate the Leavitt Spring and the defendants purportedly offered to sell the plaintiffs Hillcrest Development Company, owned by the defendants, for a sum of $130,000, or instigate litigation. The Leavitt Spring is located on the land whereupon Hillcrest Development is situated, so it appears the defendants attempted to sell the plaintiffs Leavitt Spring twice--by forcing the plaintiffs to buy Hillcrest Development Company in order to rehabilitate the Leavitt Spring when the plaintiffs had already purchased the water rights to such spring from the defendants in 1962. In a letter to the plaintiffs dated February 23, 1983, Edward Balben of Hillcrest Development stated:

"The purpose of this letter is to make it clear that if my terms of January 27, 1983 are not agreed to no later than March 1, 1983 they will be cancelled and you may either agree to the terms of August 28, 1982 or proceed with Court Action. Let it be clarified that there shall be no trespassing until all matters are settled." (Emphasis added).

Therefore, on April 15, 1983, the plaintiffs filed an action to settle their right in the Leavitt Spring located on the defendants' land. The parties arrived at a settlement before trial, and the court subsequently approved such and entered judgment thereon on June 26, 1984.

The defendants did not appeal from the judgment but subsequently filed to withdraw the stipulation and judgment on July 19, 1984. The court found that the defendants' attorneys did not have authority to enter into the earlier stipulation and judgment, and therefore the court vacated the earlier judgment and awarded the plaintiffs attorney's fees.

Trial was subsequently had to the court, resulting in a judgment filed April 17, 1985. The court granted the plaintiffs relief in declaring the plaintiffs to be the absolute owners in fee simple of the Leavitt Spring; the court enjoined the defendants from interfering with the plaintiffs' right to maintain and rehabilitate the Leavitt Spring the court awarded the plaintiffs $452.59 in costs, but refused to award the plaintiffs attorney's fees or damages. The court found in part:

"IT IS THEREFORE HEREBY ORDERED, ADJUDGED AND DECREED that the Plaintiffs are the sole and absolute owners in fee simple of, and are entitled to the exclusive use and possession of the Irrigation Spring and Leavitt Spring Water Rights, that neither the Defendants, nor their successors in interest have any right, title, interest, claim or estate in the Irrigation Spring or Leavitt Spring Water Rights or any part thereof and that title to the Irrigation Spring and Leavitt Spring Water Rights shall be, and is forever quieted in Plaintiffs.

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendants be, and are, hereby forever enjoined and restrained from interfering with the Plaintiffs' rights to maintain the Leavitt Spring, to develop, expand and revive the Leavitt Spring and of ingress and egress to the Leavitt Spring all granted pursuant to the 1962 Agreement, the 1980 Contract and the 1980 Right of Way Easement as set forth in paragraphs XII, XIII and XIV of this Judgment.

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the prayer of the Plaintiffs and the prayer of the Defendants for attorney's fees be, and is, hereby denied.

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiffs' prayer for monetary damages be, and is, hereby denied.

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants' counterclaim for monetary damages be, and is, hereby denied.

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiffs be, and are, hereby, awarded costs in the amount of $452.59."

Case No. 85-128

We will consider the issues raised by the defendants in Case No. 85-128 first.

1.

In their first argument, the defendants claim the plaintiffs' action is barred by the applicable statute of limitations. The defendants contend the action is barred under § 1-3-103, W.S.1977, which reads:

"An action for the recovery of the title or possession of lands, tenements or hereditaments can only be brought within ten (10) years after the cause of such action accrues."

Under that statute, an action to recover real property must be brought within ten years after the cause of action accrues or it is barred.

The plaintiffs, on the other hand, contend their action was one for declaratory relief under the Wyoming...