Laramie Rivers Co. v. Wheatland Irr. Dist.

• Decision Date: 10 October 1985
• Docket Number: No. 84-52,84-52
• Citation: 708 P.2d 20
• Parties: LARAMIE RIVERS COMPANY, Appellant (Respondent), v. WHEATLAND IRRIGATION DISTRICT, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 20

708 P.2d 20

LARAMIE RIVERS COMPANY, Appellant (Respondent), v. WHEATLAND IRRIGATION DISTRICT, Appellee (Petitioner).

No. 84-52.

Supreme Court of Wyoming.

Oct. 10, 1985.

Horace M. MacMillan, II and George J. Millett of Pence & MacMillan, Laramie, for appellant.

William R. Jones of Jones, Jones, Vines & Hunkins, Wheatland, for appellee.

A.G. McClintock, Atty. Gen., John D. Erdmann, Asst. Atty. Gen., Cheyenne, for State Bd. of Control.

Before THOMAS, ^* C.J., and ROSE, ROONEY, ^** BROWN and CARDINE, JJ.

ROSE, Justice.

This appeal brings these parties before the court for the second time. See Wheatland Irrigation District v. Laramie Rivers Company, Wyo., 659 P.2d 561 (1983).

Background

In the first appeal, we held that the abandonment petition of contestant Wheatland Irrigation District (sometimes referred to as Wheatland) had been timely filed--undertaking of dam repairs does not prevent forfeiture--and we remanded to the district court for resolution of the question which asks whether contestee Laramie Rivers Company (sometimes referred to as Laramie or Laramie Rivers) had failed to utilize its reservoir storage rights to the contested 41,100 acre-feet in Lake Hattie Reservoir according to statutory directive, and, if not, whether Laramie had a lawful excuse for such nonuse.

In reliance upon Wyoming's nonuse water-abandonment statute, § 41-3-401(a), W.S.1977, ¹ Wheatland originated the action by filing a petition with the State Board of Control, seeking to abandon 41,100 of the 68,500 acre-feet of water which had been appropriated to the Laramie Rivers Company from the Laramie and Little Laramie rivers under two reservoir permits for the Lake Hattie Reservoir. The reservoir permits for the storage of 90,872 acre-feet for the appellee's Wheatland No. 3 Reservoir are junior to and downstream from Lake Hattie. It is Wheatland's contention that the statutory five successive years having passed since Laramie applied the contested water to beneficial use, the appropriation was, under § 41-3-401(a), abandoned and therefore subject to declaration of abandonment under § 41-3-401(b), W.S.1977. ²

Remand Proceedings

The State Board of Control, upon remand from this court, reconsidered the evidence received in the original hearing and, on August 18, 1983, ordered all storage rights in Lake Hattie Reservoir abandoned above an elevation of 7,263 feet above mean sea level. Further, the State Board of Control ordered that the Laramie Rivers Company or its successors cause a survey to be made to determine the actual capacity of Lake Hattie Reservoir below 7,263 feet and to prepare a capacity map to the satisfaction of the State Board of Control prior to May 1, 1986.

Issues for Decision

Laramie appealed to the district court and the case was certified directly to this court, with the following issues assigned for our review:

"1. Does Wheatland Irrigation District lack standing to file a petition for partial abandonment of the storage rights held by Laramie Rivers Company in Lake Hattie Reservoir?

"2. Did the Board of Control properly comply with Wyoming law by arbitrarily disregarding the facts as to the actual amount of water available for diversion during the years in question?

"3. Did the Board of Control comply with Wyoming law in concluding that a partial abandonment of storage rights in Lake Hattie Reservoir could be based upon elevation, rather than the actual quantity of water put to beneficial use?

"4. Was the order of the Board of Control directing that all storage rights in Lake Hattie Reservoir shall be abandoned if Laramie Rivers Company fails to provide a map certifying the capacity of Lake Hattie Reservoir by May 1, 1986, and until such time that an acceptable map is provided in compliance with Wyoming law?"

Issue No. 1--Standing

We will find that the threat of resuscitating Laramie River's abandoned water rights constitutes such abridgment of Wheatland's water rights as will provide standing to petitioner in abandonment, because, after the triggering of the injury which flows from resuscitation (i.e., reapplication to beneficial use), it is then too late for Wheatland to protect its right to the use of the contested water under our holding in Wheatland Irrigation District v. Pioneer Canal Co., Wyo., 464 P.2d 533 (1970); Sturgeon v. Brooks, 73 Wyo. 436, 281 P.2d 675 (1955).

Wheatland's Position

In the appeal at bar, it is the appellee Wheatland's position that the threat of the reapplication of Laramie River's abandoned storage rights to beneficial use would adversely affect Wheatland's water right which--for purposes of the case at bar--it identifies as being the uninterrupted flow of the contested water past the Lake Hattie diversion into Wheatland's No. 3 Reservoir subject only to the rights of such intermediate users as may be in priority.

In the words of its brief, Wheatland urges that it has standing

" * * * in order to protect its right to use its previously appropriated water in Wheatland Reservoir No. 3 from the injury which it would suffer were the Contestee/Appellant allowed to resuscitate the water rights which it abandoned from non-use."

Wheatland's Resuscitation Theory

Concerning its standing to petition for abandonment under § 41-3-401(b), where the "water user" must be found to have been "affected," Wheatland argues that it is a junior downstream appropriator which is possessed of an unsatisfied water right that is being supplemented through the nonuse of Laramie River's upstream, partially abandoned, senior appropriation, and, therefore, the threat of the reassignment of the contested water to beneficial use causes Wheatland to become such an "affected" water user as is contemplated by § 41-3-401(b).

Essential to the understanding of contestant's theory is a continuing awareness of the provisions of § 41-3-401(a) and (b). Particularly is it important to remember that § 41-3-401(a) provides that contestee's nonuse for the statutory period creates a condition which the legislature has described as "having abandoned the water right" (emphasis added). Section 41-3-401(b) then explains who it is that will be permitted to take advantage of the "abandoned * * * water right"--namely, "any water user who might be affected" (emphasis added).

Where standing is in issue and nonuse is alleged, Wheatland interprets these statutory provisions to say that, even though--through nonuse--Laramie has factually abandoned the water right in question, prior to a declaration of abandonment it nevertheless retains "resuscitation" ³ privileges which contemplate that the abandoned water right may be retrieved and revitalized through reapplication to such beneficial use as is contemplated by the contestee's original appropriation authority. In support of this automatic abandonment theory, with its attendant "resuscitation" properties, Wheatland remembers Sturgeon v. Brooks, supra, and Wheatland Irrigation District v. Pioneer Canal Co., supra. The lesson of these opinions is that nonuse for the statutory period renders a right forfeited, but, if the petition for abandonment is not filed until after beneficial use is resumed, forfeiture of the water right will not be declared.

We discussed Sturgeon and Wheatland Irrigation District in our first opinion and, in light of the importance of these cases to an understanding of the appellee's theory of standing in this appeal, what we said there bears repeating. In Wheatland Irrigation District v. Laramie Rivers Company, 659 P.2d at 566-567, we said:

"In Sturgeon v. Brooks, 281 P.2d at 683-684, this court said:

" '* * * We might say at this point, plaintiff Sturgeon testified that he acquired the land on which the reservoir in question is located in 1936 or 1937. The reservoir rights in question here had not been put in use for five years previously and were not put to use until 1951 or 1952. Yet he waited sixteen or seventeen years before bringing an action of forfeiture, and that after the defendant Brooks had twice repaired the reservoir and had recommenced to use the water. The testimony does not disclose the outlay, but judging from the fact that plaintiff Sturgeon had offered to contribute $500 to the repair of the dam of the reservoir, the expenditure by Brooks must have been at least substantial. Waiting sixteen or seventeen years to bring an action for forfeiture would, on its face, seem to be an unreasonable time, especially in view of the facts just stated.' (Emphasis added.)

"The court then went on to explain that had the reservoir water not been put to use, the result might not have been the same when we said:

" '* * * It may be conceded herein for the purpose of this case, that if the action for forfeiture had been brought before Brooks put the reservoir again into use, the court would have been justified, if not constrained, to declare a forfeiture.' (Emphasis added.)

"In Wheatland Irrigation District v. Pioneer Canal Co., Wyo., 464 P.2d 533 (1970), we were later confronted with a fact situation (like the case before the court here) where a forfeiture petition was filed before the water had been applied to its beneficial use. There, both the Board of Control and the district court found that the Pioneer Canal Company should have a reasonable period of time to enlarge their reservoir to its appropriated size rather than abandoning the right as to any excess over its present capacity. This court reversed the district court's affirmance of the Board of Control's order and declared the excess of the right to be abandoned. Commenting on Sturgeon v. Brooks, we said:

" ' * * * One of the questions dealt with in the case was whether or not the owner had abandoned his storage right because of the prolonged disuse of the reservoir. We held he had not for the reason no formal declaration of abandonment had theretofore been obtained from the board or the district court. It was said, however, "that if the action for forfeiture had been brought before...