In re Gen. Determination of Rights of Water

• Decision Date: 17 August 2004
• Docket Number: No. 981509.,981509.
• Citation: 98 P.3d 1,2004 UT 67,152 Wash.2d 528
• Parties: In the matter of the GENERAL DETERMINATION OF the RIGHTS TO USE ALL OF the WATER, BOTH SURFACE AND UNDERGROUND, WITHIN the DRAINAGE AREA OF UTAH LAKE AND JORDAN RIVER IN UTAH, SALT LAKE, DAVIS, SUMMIT, WASATCH, SANPETE, AND JUAB COUNTIES in Utah. Butler, Crockett and Walsh Development Corporation; The Pinecrest Water Company; and LeRoy Meyer, Plaintiffs, Appellants, and Cross-Appellees, v. Pinecrest Pipeline Operating Company and Pinecrest Water Users Association, Defendants, Appellees, and Cross-Appellants. State of Utah, Appellee and Cross-Appellee.
• Court: Utah Supreme Court

98 P.3d 1

2004 UT 67

152 Wash.2d 528

In the matter of the GENERAL DETERMINATION OF the RIGHTS TO USE ALL OF the WATER, BOTH SURFACE AND UNDERGROUND, WITHIN the DRAINAGE AREA OF UTAH LAKE AND JORDAN RIVER IN UTAH, SALT LAKE, DAVIS, SUMMIT, WASATCH, SANPETE, AND JUAB COUNTIES in Utah.

Butler, Crockett and Walsh Development Corporation; The Pinecrest Water Company; and LeRoy Meyer, Plaintiffs, Appellants, and Cross-Appellees, v. Pinecrest Pipeline Operating Company and Pinecrest Water Users Association, Defendants, Appellees, and Cross-Appellants.

State of Utah, Appellee and Cross-Appellee.

No. 981509.

Supreme Court of Utah.

August 17, 2004.

Brent A. Bohman, Morgan, and John Walsh, Salt Lake City, for plaintiffs.

Jeffrey W. Appel, Jennifer L. Crane, Salt Lake City, for defendants.

Mark L. Shurtleff, Att'y Gen., Norman K. Johnson, L. Ward Wagstaff, Julie I. Valdes, Asst. Att'ys Gen., Salt Lake City, for the State.

PARRISH, Justice:

¶ 1 We review the trial court's adjudication of certain water rights associated with the Emigration Creek Subdivision of the Salt Lake County East Division of the Utah Lake and Jordan River Drainage Area ("Emigration Creek Subdivision"). LeRoy Meyer ("Meyer") appeals a summary judgment in favor of Pinecrest Pipeline Operating Company ("PPOC") as to the ownership of Water User's Claim ("WUC") 57-8492. PPOC cross-appeals the trial court's determination that WUC 57-3442 was not forfeited by Meyer's predecessor in interest. The state engineer appears as appellee and cross-appellee. We affirm the summary judgment in favor of PPOC on the ownership of WUC 57-8492 and also affirm the trial court's rulings regarding the alleged forfeiture of WUC 57-3442.

BACKGROUND

¶ 2 In the 1970s, the state engineer began the process of determining water rights within the Emigration Creek Subdivision, which includes the Pinecrest area. Settlers in the early 1900s had established a community in the Pinecrest area of Emigration Canyon with the construction of cabins, cottages, and the Pinecrest Hotel. The community received spring water through a redwood stave pipeline constructed in 1912.

¶ 3 In subsequent years, additional cabins and cottages were constructed and connected to the redwood stave pipeline. The hotel burned and was torn down in 1951, and thereafter the collective cabin and cottage owners operated and maintained the pipeline exclusively. In the mid-1970s, the owners discussed among themselves the need to construct a new pipeline to replace the dilapidated redwood stave pipeline. A new pipeline identified as "the blue line" was consequently constructed. ¶ 4 Meyer is a resident of the Pinecrest community. Following completion of the blue line, Meyer sent a letter to other property owners addressing the need to incorporate the informal association of property owners that had been operating and maintaining the pipelines. Prior to that time, the association had held meetings, but the name of the association varied according to who kept the minutes. In June 1982, the property owners incorporated under the name Pinecrest Pipeline Operating Company, commonly referred to as PPOC.

¶ 5 When the state engineer assessed the rights of the water users in the Emigration Creek Subdivision and published his proposed determination, a dispute erupted over the ownership of the pipeline system, the existence and ownership of property easements for the system, and ownership of the underlying water rights. The interested parties initiated litigation in the trial court. The overall adjudication was bifurcated into two proceedings. The first proceeding resolved issues related to the pipeline system and property easements. The second proceeding, which involved ownership of the water rights, is the subject of this appeal. The result of the first proceeding also was appealed to this court. Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline Operating Co. (In re General Determination of Rights to Use All Water), 909 P.2d 225 (Utah 1995). Additional background on the parties and the development of the Pinecrest area community is found in that opinion. Id. at 227-30.

I. WUC 57-8492

¶ 6 Because the dispute regarding ownership of WUC 57-8492 was decided on summary judgment, we recite and view the relevant facts in the light most favorable to Meyer, who was the nonmoving party below. Norman v. Arnold, 2002 UT 81, ¶ 2, 57 P.3d 997.

¶ 7 Meyer became part of the Pinecrest area community in approximately 1970 when he purchased property and a cabin near the site of the former hotel. Meyer obtained water for his property by hooking into the redwood stave pipeline and thereafter joined the association of property owners operating and maintaining the water system. From time to time, Meyer performed work on the pipeline for which the other property owners reimbursed him.

¶ 8 In 1979, Meyer began negotiating to purchase the property on which the old hotel had once stood. In connection therewith, Meyer met an official from the state engineer's office who was assessing water rights in the area. Meyer spoke with the official about the pipeline system and the water being used by the homes connected to the line. The official suggested that Meyer fill out a water user's claim form for the water, and Meyer did so. On the form, in the space designated for the name of the claimant, Meyer identified "Pinecrest Water Users Association c/o LeRoy Meyer (Treasurer)." In the space designated for the claimant's signature, Meyer signed his name. The completed form for WUC 57-8492 noted the water usage of twenty-seven families and listed a priority date of 1908.

¶ 9 When the state engineer published the proposed determination of water rights in the Emigration Creek Subdivision, WUC 57-8492 was omitted. The recently incorporated PPOC filed an objection to the proposed determination based on the omission, claiming a right to the water as successor in interest to the Pinecrest Water Users Association. In response, the state engineer admitted that WUC 57-8492 "was inadvertently omitted from the proposed determination" and recommended that the water rights identified in WUC 57-8492 go to PPOC. Meyer accepted service of the proposed determination and filed no objection thereto.

¶ 10 In the trial court, Meyer maintained that he filed WUC 57-8492 on his own behalf, rather than on behalf of the association of property owners operating and maintaining the water system. He therefore argued that the associated water rights belong to him personally. PPOC opposed Meyer's personal claim to the water rights and ultimately prevailed on this issue through summary judgment.

II. WUC 57-3442

¶ 11 In the trial court, PPOC and Butler, Crockett and Walsh Development Company ("BCWDC") litigated the validity of WUC 57-3442. BCWDC thereafter transferred its interests in WUC 57-3442 to Meyer, who represents those interests on appeal.

¶ 12 BCWDC acquired WUC 57-3442 in connection with the purchase of real property in 1981. WUC 57-3442 entitles its owner to 21.61 acre-feet of water per annum. Soon after obtaining WUC 57-3442, BCWDC filed a change application with the state engineer to alter the nature of the approved use from domestic to irrigation. As part of the approval process for the change application, an official from the state engineer's office conducted a field examination of BCWDC's property in October 1981 and again in February 1982. The official confirmed the property's acreage and the existence of water diversion works for irrigation. His report noted that the purpose of the irrigation was to water ten thousand blue spruce trees. The state engineer approved the change application, establishing BCWDC's right to use 21.61 acre-feet of water to irrigate 7.21 acres of land.

¶ 13 When the state engineer's proposed determination of water rights recognized BCWDC as the owner of WUC 57-3442, PPOC objected. PPOC argued that BCWDC had forfeited the water right, either totally or partially, by failing to beneficially use the water for a continuous five-year period. Specifically, PPOC alleged the water was not beneficially used from April 1982 to April 1990.

¶ 14 The parties litigated the forfeiture dispute in the trial court, where BCWDC presented evidence that the water had been used to cultivate trees for a tree farm and that the water was otherwise put to beneficial use irrigating indigenous vegetation on the property. John Walsh ("Walsh"), a principal of BCWDC, testified that he purchased and planted blue spruce seeds in scattered groupings throughout the property. According to Walsh, he planted tree seeds in 1981, 1982, and 1987. Although no blue spruce trees grew, Walsh testified he could have mistakenly planted seeds for white fir or douglas fir trees, which were found on the property. In addition, Walsh testified that he aesthetically enhanced the property through the cultivation of wildflowers indigenous to the area and that he actively irrigated the land throughout the alleged forfeiture period using various new diversion points, causing the natural plants to proliferate and enabling him to harvest and gift trees and berries to friends and family.

¶ 15 In contrast, PPOC presented evidence that Walsh's tree farm failed and that the water was put to only limited, non-beneficial use during the alleged forfeiture period. Specifically, PPOC argued that the methods Walsh employed would have failed to yield conifer trees, that no clear system of irrigation ditches was maintained, and that Walsh's watering of the natural vegetation on the property did not constitute beneficial use. PPOC offered expert testimony that a mature tree farm would consume a maximum of 3.3 acre-feet of water per annum, and argued that the water right should therefore be reduced and limited to that amount.

¶ 16 The trial judge inspected BCWDC's property in 1996 at the conclusion of trial. Ultimately, the court ruled in favor of BCWDC, finding that PPOC had not met its burden...