Fuss v. Franks

• Decision Date: 25 April 1980
• Docket Number: No. 5209,5209
• Citation: 610 P.2d 17
• Parties: John FUSS and Martha Fuss, Husband and Wife, and Myrtrice A. Baumgartner, Appellants (Plaintiffs below), v. William J. FRANKS, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 17

610 P.2d 17

John FUSS and Martha Fuss, Husband and Wife, and Myrtrice A. Baumgartner, Appellants (Plaintiffs below), v. William J. FRANKS, Appellee (Defendant below).

No. 5209.

Supreme Court of Wyoming.

April 25, 1980.

Rehearing Denied May 16, 1980.

Donald E. Jones of Donald E. Jones Law Offices, Torrington, for appellants.

Bob C. Sigler of Sigler & Pauli, Torrington, for appellee.

John D. Troughton, Atty. Gen. and Sandra K. Dunn, Asst. Atty. Gen., Cheyenne, filed brief of amicus curiae, and Sandra K. Dunn, Asst. Atty. Gen., Cheyenne, appeared in oral argument.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

This case involves a dispute among landowners over the right to seepage or waste water first used upon the lands of the Bremers and appellants, Fusses and Baumgartner, and thereafter conveyed to other non-adjoining lands leased and farmed by Fusses. Appellee, Franks, interrupted this use by diverting the escaped water to his own property thus the controversy.

The case was disposed of upon the court's judgment of dismissal. We will affirm in part, reverse in part, and remand.

John and Martha Fuss, husband and wife, and Myrtrice Baumgartner, appellants herein, together with Dale and Ralph Bremer, own and farm adjacent tracts of land in the Goshen County Irrigation District (hereafter G.I.D.). The land irrigates from south to north that is, the water flows northerly from the three properties of Fusses, Baumgartner and Bremers toward the Franks land.

A secondary highway runs north and south to the east of these four tracts and borders the Baumgartner and Franks properties. Along the west side of the highway in the right-of-way is a borrow pit maintained by the State Highway Department. A ditch-rider road built by the G.I.D. intersects the highway, running east and west. This road separates the Franks land from the land owned and farmed by the appellants and the Bremers. A borrow pit originally ran alongside the ditch-rider road, but it has been converted into a waste-water-collection ditch. Waste water from the Bremer, Baumgartner and Fuss lands collects in this ditch and is carried into the highway borrow pit.

In addition to the aforementioned tract of land owned by the Fusses in Section 5, they also maintain farming operations to the north and east across the highway on state-lease land in Section 4.

Water for this entire area was acquired by the G.I.D. under various permits and the water rights within the District were then adjudicated in the names of individual landowners for individual 40-acre tracts. The water in contest here is seepage from water appropriated to tracts belonging to Bremers, Fusses and Baumgartner.

The present dispute arises out of the irrigation practices of the parties involved. The Fuss, Bremer and Baumgartner lands located in Section 5 have historically received water directly from the G.I.D. Canal, which bisects the three ownerships in that section. Excess water from these lands collects in the waste-water ditch which separates the Fusses, Bremers and Baumgartner from Franks in Section 5. The collected water flows easterly through this ditch into the highway borrow pit where it travels north some distance before it again flows east under the highway via an underground pipe constructed by the G.I.D. Appellants-Fusses have, for many years, irrigated their Section 4 state-lease land lying east of the highway with this escaped waste water which has crossed under the highway, as above described. William Franks has two pipes under the ditch-rider road from which he has collected some waste water for the irrigation of his property.

In 1977, Franks applied to the State Engineer's office for a permit for a supplemental supply of water, the source being the highway borrow pit. The application would allow Franks to construct a dam in the borrow pit in order that he might collect additional water for irrigation. The permit was approved by the State Engineer in July 1979.

Appellants brought the present action to prevent appellee from collecting this water and to stop further interference with the use of waste water on the appellants-Fusses' Section 4 leased land. An amended complaint was filed and was dismissed by order of the court on September 6, 1979.

We will address these following issues, which we find to be dispositive of all material questions raised by the appellants:

1. Whether the trial court erred when, by its order of dismissal, it held that the water from the highway borrow pit was lawfully appropriated by Franks under a valid permit;

2. Estoppel;

3. Adverse use; and

4. Injunction.

Point 1: Was the water from the highway borrow pit lawfully appropriated by Franks?

Whether or not Franks' appropriation was lawful is resolved by answering whether or not the State Engineer had authority to approve the Franks permit in July of 1979.

In this case, there was testimony that the seepage water in contest here would, if uninterrupted, flow into a natural stream. This is a qualifying requirement for appropriation. Binning v. Miller, 55 Wyo. 451, 102 P.2d 54 (1940).

In Binning we said:

". . . And so it is held in a number of cases that seepage water which, if not intercepted, would naturally reach the stream, is just as much a part of the stream as the waters of any tributaries and must be permitted to return thereto, if the owner cannot make beneficial use thereof. Rock Creek Ditch Co. v. Miller, 93 Mont. 248, 17 P.2d 1074, and note thereto in 89 A.L.R. 218-227; 67 C.J. 1006, 1015. That would seem to be the more reasonable rule in irrigating states. . . ." 102 P.2d at 61.

This concept was reaffirmed in Bower v. Big Horn Canal Association, 77 Wyo. 80, 307 P.2d 593 (1957).

The permit having been issued to Franks, this constituted prima facie evidence of his right to take the water. Hunziker v. Knowlton, 78 Wyo. 241, 322 P.2d 141 (1958). This being so, it fell to appellants to allege facts sufficient to show that they had a right to the water superior to that of Franks, the permittee. Binning, supra.

Appellants say in their brief:

". . . The appropriator who captures upon his land waters not fully used for irrigation, sometimes referred to as waste water, may recapture the water for beneficial use upon his premises for which the water had been appropriated. . . ." (Emphasis supplied.)

That is a correct statement of law. It cannot, however, inure to the favor of appellants under the facts of this case.

We commented upon Binning, supra, where the facts were uniquely similar to those to be found here, when, in Bower, supra, we said:

". . . The real question in the case (Binning ) was whether the prior appropriation of what was termed in the original application as 'waste and seepage water' was good as against the owner of the land from which said water came. The court held that the seepage water which formed a natural stream might be appropriated, subject to the right of the land owner to use the water for beneficial purposes upon the land for which the water forming the seepage was originally appropriated." (Emphasis and bracketed matter supplied.) 307 P.2d at 600.

This language means that the owner of land upon which seepage or waste water rises has the right to use and reuse capture and recapture such waste waters for use only "upon the land for which the water forming the seepage was originally appropriated." When the water leaves the land for which it was appropriated and would, if left to flow uninterrupted, reach a natural stream, it becomes eligible to other and separate appropriation for other and different uses. It leaves the landowner upon which the seepage rose, and from which it has escaped, without any superior right to such water by reason of its having been utilized upon the land to which it was first appropriated.

We recognized this concept in Bower, supra, when we said:

". . . Additionally, it is equitable, in accordance with the constitutional provisions of this State, and in line with our previous holdings, that we here decree seepage water arising on Bower's land to be subject to appropriation by him (subject to prescribed procedures) for lands other than those upon which the seepage arises. . . ." (Emphasis supplied.) 307 P.2d at 602.

The "prescribed procedures" referred to are the application requirements for a water permit under the statutes. The rationale for this rule finds its genesis in the doctrine long since established in this state to the effect that waters become appurtenant to the lands for which they are acquired and, unless the statutes are followed with respect to change of use, the waters cannot be detached and assigned to other land without the loss of priority. Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74 (1939).

The water which accumulates in the collection ditch separating the Franks land from Bremers, Fusses and Baumgartner in Section 5, and which thereafter runs into the highway right-of-way originates on the land of the last three mentioned owners and is adjudicated in the name of the individual landowners for use upon their particular land tracts. This fact statement is undisputed. Therefore, once the water escapes the aforementioned Bremers, Fusses and Baumgartner lands in Section 5 and finds its way to the collection ditch and thence to the highway right-of-way, it must be regarded as having escaped the land to which it is appropriated and, since it would, if undisturbed, have flowed to a natural stream, it, therefore, becomes eligible for other appropriation. Binning, supra; and Bower, supra.

Franks' permit was valid because the Fusses, Bremers and Baumgartner had no superior right to the water after it left their properties to accumulate in the collection ditch and from there flow to the highway right-of-way borrow pit.

Point 2: Estoppel.

In this appeal, the appellants urge a concept of estoppel. We will not detail it further because it was not pleaded.

We held in ...