McTiernan v. Scott

• Decision Date: 20 September 2001
• Docket Number: No. 00-203.,00-203.
• Citation: 31 P.3d 749,2001 WY 87
• Parties: John McTIERNAN and Donna Dubrow, Appellants (Respondents), v. Sam J. SCOTT and Mona J. Scott, Appellees (Petitioners).
• Court: Wyoming Supreme Court

31 P.3d 749

2001 WY 87

John McTIERNAN and Donna Dubrow, Appellants (Respondents), v. Sam J. SCOTT and Mona J. Scott, Appellees (Petitioners).

No. 00-203.

Supreme Court of Wyoming.

September 20, 2001.

Kim D. Cannon and Anthony T. Wendtland of Davis & Cannon, Sheridan, WY, Representing Appellant. Argument by Mr. Cannon.

Tom C. Toner of Yonkee & Toner, Sheridan, WY, Representing Appellees. Argument by Mr. Toner.

Before LEHMAN, C.J., and GOLDEN, HILL, KITE and VOIGT, JJ.

HILL, Justice.

[¶ 1] John McTiernan and Donna Dubrow (collectively McTiernan) filed a petition with the Board of Control (Board) seeking an order that Sam and Mona Scott (the Scotts) had abandoned a portion of their water rights. On remand from our decision in Scott v. McTiernan, 974 P.2d 966 (Wyo.1999) (Scott I) for additional findings of fact, the Board concluded that the Scotts had abandoned 14.8 acres of the 28.8 acre Shallcross property and ordered the Scotts to file a petition for a change of the point of diversion and means of conveyance with the Board. McTiernan appeals from a district court order finding the Board's decision unsupported by substantial evidence and, after a review of the record, concluding that the Scotts had abandoned 9.2 acres. McTiernan also challenges the district court's conclusion that the Board did not have the authority to order Scott to file a petition for a change in point of diversion and means of conveyance. We affirm and remand to the Board for further proceedings.

[¶ 2] McTiernan offers two issues for review:

1. Are the Board's Findings and Conclusions on the Shallcross lands sufficiently articulated and supported by substantial evidence?

2. Does the Board of Control have the authority, in support of this decision, to require Scott, the owner of a portion of the lands under the # 3 Priority, to clarify the point of diversion(s) and the means of conveyance under the # 3 Priority?

The Scotts agree there are two issues:

1. Is the Board's conclusion that only 14.0 acres of the Shallcross property were irrigated in the five years immediately preceding the filing of the abandonment petition supported by substantial evidence and sufficiently detailed findings of fact?

2. Was the Board of Control required to make findings of fact justifying its decision to require Scotts to file a petition for change of point of diversion and means of conveyance for their water right given that the points of diversion and means of conveyance of that water right were changed before 1965 when the McTiernan and Scott lands were owned by a common owner?

Procedural History and Factual Background

[¶ 3] The Scotts and McTiernan are adjoining landowners whose properties were once owned in common. Both parties hold water rights in Smith Creek to irrigate the respective properties. The Scotts' water right is part of the John Ross Appropriation, which is a territorial water right with a priority date of May 1882 and is the number three priority on Smith Creek. McTiernan holds the number four priority on Smith Creek. Scott I, 974 P.2d at 968-69.

[¶ 4] In 1996, McTiernan filed a petition with the Board for a declaration of abandonment of the Scotts' John Ross Appropriation. The Scotts' appropriation irrigated two separate parcels of land: (1) Tracts 3 and 4 north of Smith Creek and (2) the Shallcross property. Id. In the current proceeding, our only concern is with the disposition of the Shallcross property. After a contested case hearing on the petition held in the summer of 1997, the Board concluded that the Scotts had abandoned all but 14.1 acres of the 28.8 acres contained within the Shallcross property. The Scotts appealed the decision to the district court.

[¶ 5] In Scott I, we considered the Scotts' appeal of the Board's decision on certification from the district court. We held that the Board's factual findings regarding the actual acreage irrigated on the Shallcross property were insufficient and, accordingly, we remanded the matter to the Board for proper fact-finding proceedings. While our review of the Board's decision regarding the Shallcross property in Scott I was rather lengthy, it is necessary for us to quote that discussion in its entirety in order to properly set forth the context of the current dispute and to facilitate our review of the Board's decision on remand and the district court's subsequent reversal:

The Scotts maintain that the board's conclusion that only 14.1 acres of the Shallcross property were irrigated during the five years immediately preceding McTiernan's filing of the abandonment petition was not supported by substantial evidence or by sufficiently detailed findings of fact. McTiernan argues that sufficient evidence and adequate findings of facts supported the board's determination. We agree with the Scotts that the board's findings of fact concerning the Shallcross property were inadequate.

The Scotts claimed that they irrigated twenty-five acres of the Shallcross property in 1996. McTiernan conceded that the Scotts had irrigated three acres of the Shallcross property. The board addressed the Shallcross property in finding of fact number 23. That finding stated in pertinent part:

SW¼ NE¼ of Section 24, Township 57 North, Range 87 West (Shallcross property):

Bruce Barton, a McTiernan witness, testified at the public hearing that he observed irrigation in the SW¼ NE¼ of Section 24, Township 57 North, Range 87 West, shown as 3.0 acres in green on Exhibit No. 30 submitted as evidence at the public hearing. Robert Mullinax, John Dahlke and Roy Powers testified at the public hearing that they observed the "big gun" operating on the Shallcross parcel in different locations which total an additional 11.1 acres of irrigation, shown on Exhibits X-3 and 44 submitted as evidence at the public hearing.

The board accordingly concluded that only 14.1 acres of the Shallcross property had been irrigated, and it ruled that the Scotts abandoned the remainder of the water right.

The board relied on the testimony of Robert Mullinax, John Dahlke, and Roy Powers, together with Exhibits X-3 and 44, to justify its determination that the Scotts had irrigated only 11.1 acres in addition to the three acres conceded by McTiernan. Exhibits X-3 and 44 are maps which depict the Shallcross property.

Mullinax was an irrigation equipment contractor who visited the Scotts' property around August 15, 1996, to give them an estimate for installing an irrigation pipeline. He testified that he saw a big gun sprinkler operating on the Shallcross property north of the Smith Creek subdivision access road. He drew a circle on Exhibit X-3 to show the area where he saw the sprinkler operating. Mullinax testified that he also saw irrigation pipe laid out on the west side of the big gun sprinkler. He stated that a big gun sprinkler waters a circular area with a 130-foot radius. Mullinax hypothesized that the big gun sprinkler could, therefore, water approximately three-quarters of an on each set. [Footnote 3]

Dahlke, a hydrographer commissioner for the board, also testified at the hearing. In July 1996, he observed a big gun sprinkler operating on the Shallcross property both north and south of the subdivision road. Dahlke drew six circles on Exhibit 44 to show where he saw the sprinkler operating. He went on to state that he observed "a minimum of seven or eight" acres of the Shallcross property being irrigated in 1996.

Powers owned land which neighbored the Scotts' land, and he occasionally traveled on the subdivision road through the Shallcross property. He testified that, in 1996, he saw the Scotts operating the big gun sprinkler on the Shallcross property south of the subdivision road. Powers marked Exhibit 44 to show the location of the big gun sprinkler.

The appellees [McTiernan] argue that the board's conclusion that the Scotts irrigated 11.1 acres can be extrapolated from Mullinax's, Dahlke's, and Powers' testimony. The board claims that it accepted Sam Scott's testimony that he made nine sets with the big gun sprinkler during the 1996 irrigation season. It then used Mullinax's testimony that the big gun sprinkler watered a circular area with a radius of 130-feet to calculate a total acreage of 10.98 acres, [Footnote 4] or, as the board states, "approximately 11.1 acres."

The board's argument is obviously an attempt to justify its decision in hindsight. In its findings of fact, the board did not state that it relied on Sam Scott's testimony to support its conclusion that 11.1 acres had been irrigated. Furthermore, if it had truly used this rationale to reach its conclusion, it would have determined that Scott had irrigated 10.98 or, if it had rounded the number up, 11.0 acres. The board's calculation simply does not support its conclusion that the Scotts irrigated an additional 11.1 acres of the Shallcross property.

McTiernan takes a different approach to justify the board's conclusion. McTiernan argues that the 11.1 acre conclusion can be derived by using Mullinax's statement that each big gun set covers approximately three-quarters of an acre and taking that figure times twelve to fourteen sets. McTiernan does not explain the source of its twelve-to fourteen-set figure, and no such figure is readily discernable from Mullinax's, Dahlke's, or Powers' testimony. We cannot, therefore, accept McTiernan's rationale to justify the board's finding.

The appellees [McTiernan] have not convinced us that the board's factual findings in this case are sufficient. Furthermore, "a litigant's brief or oral argument is no substitute for a proper agency decision." [Schulthess v. Carollo, 832 P.2d 552, 559 (Wyo.1992)]. There may be a sufficient factual basis for the board's determination that the Scotts irrigated only 11.1 acres of the Shallcross property in addition to the three acres conceded by McTiernan; however, that factual basis was not included in the formal findings of fact. We, therefore, remand this case with directions that the board

...