North Laramie Land Co., Matter of

• Decision Date: 01 May 1909
• Docket Number: No. 1516,No. 2,2,1516
• Citation: 605 P.2d 367
• Parties: In the Matter of a Petition for Declaration of Abandonment of the NORTH LARAMIE LAND COMPANY Appropriation for Water stored in North Laramie Land CompanyReservoir, PermitRes. Supplied from the North Laramie River through the North Laramie Land Company Canal, with priority of
• Court: Wyoming Supreme Court

Page 367

605 P.2d 367

In the Matter of a Petition for Declaration of Abandonment of the NORTH LARAMIE LAND COMPANY Appropriation for Water stored in North Laramie Land Company No. 2 Reservoir, Permit No. 1516 Res. Supplied from the North Laramie River through the North Laramie Land Company Canal, with priority of May 1, 1909 STATE BOARD OF CONTROL, Appellant (Respondent) and

Wilkinson Brothers, Appellant (Respondent-Contestant), v. JOHNSON RANCHES, INC., Appellee (Petitioner-Contestee).

No. 5174.

Supreme Court of Wyoming.

Jan. 18, 1980.

Christan P. Mai, Asst. Atty. Gen., and Paul J. Hickey, Horiskey, Bagley & Hickey, Cheyenne, for appellants.

Donald N. Sherard, Wheatland, for appellee.

Before RAPER, C. J., THOMAS and ROSE, JJ., GUTHRIE, J., Retired, and FORRISTER, D. J. ^*

RAPER, Chief Justice.

This appeal is concerned solely with the interpretation of a Wyoming statute which governed the abandonment of water rights at the time this action was initiated. ¹ The essential issue is whether the last sentence of § 41-47.1(b), supra, requires the contestant to prove that water was available during the successive five-year period for nonuse or whether the contestee is required to prove that water was not available thus excusing his nonuse. We will hold that the contestee has that burden, reverse the district court which held to the contrary, and affirm the Board of Control which properly construed the statute.

On May 12, 1977, the appellant, Wilkinson Brothers, filed before the State Board of Control a petition for declaration of abandonment of a water right, Permit No. 1516R. The water right in question was a reservoir right for the storage of 1,320 acre-feet of water and had a priority date of May 1, 1909. The petition for abandonment alleged:

"3. That the water has not been applied to beneficial use * * * for at least five consecutive years last past, when water was available for this purpose, and that your petitioner will be benefited by a declaration of abandonment of this appropriation * * * ."

The appellee, Johnson Ranches, Inc., answered generally denying the allegation of the appellant and asserting several defenses (1) appellant would not be "affected" or "benefited" by the declaration of abandonment as required by § 41-47.1(b), supra, (2) the appellant is estopped from pursuing the abandonment because he negotiated and entered into a settlement and compromise concerning the respective water rights of the parties in a civil action which was adopted into an order of a district court, (3) based on the facts set out in (2) immediately above, the appellant has waived any right to pursue this abandonment proceeding, and (4) the appellant is guilty of laches. Although appellee generally denied the allegations as set out above, he made no affirmative averment to the effect that water was not available during one or more of the five years asserted in the petition.

In his opening statement presented at the hearing, which was conducted pursuant to § 41-47.1(c) and (d), supra, the appellant stated:

"We are proceeding, of course, under Wyoming Statute 41-47.1 and, as I read the statute, Mr. Examiner, there are three burdens on the Contestant in order to prove a case for the abandonment of a water right. To paraphrase that statute, the first burden is that a holder of an appropriation of water has failed to use the water for the beneficial purposes for which it was appropriated for any five successive years. The second burden is that we must show the availability of water for diversion during that period. And lastly, we must show that the person bringing the abandonment proceeding is affected."

And in his closing argument, appellant asserted:

"The second point I think that we are concerned with, as I indicated at the onset, is the availability of water. What we are dealing with here is a matter of practicalities that is not foreign at all to water administration as the Examiner knows much better than I. The canal that is in question here, of course, diverts from the North Laramie River. This is a canal that has not been measured. We are at a disadvantage, all of us, because we don't have specific measurements of the flow of water into this canal on a yearly basis based on an adequate gauge.

"So, then we come to the question, 'Well, is anyone able to prove the availability of water if they don't know of a gauge?' Well, sure you are, Mr. Examiner, and I think we have conclusively proven that by virtue of the fact that the priorities in question here are all 1909 priorities, with the exception of the 1913 rights which have been alluded to earlier.

"So, if you don't have a gauge, how are you going to prove that water was available? Well, you prove it through the testimony of people that live in the area; through the testimony of George Wilkinson who lives a short distance from the reservoirs; through the testimony of Bob Harmon who through a leasing operation was able to travel this area for greater than twenty times a year for the six-year period of his lease; through the testimony of Mr. Bruegman who lives very close to the lands under the 1913 right as well as the reservoirs under the 1909 right.

"Their testimony without contradiction established that these reservoirs 1 and 3 had water during that period. Additionally, Mr. Bruegman quite emphatically testifies that under the 1913 rights, there was water applied to this acreage that is being irrigated with a sprinkler irrigating system.

"So, where does that leave us? Well, that leaves us with the fact that of the priorities here on these permits of the 1909 dates, there was more than enough water to satisfy the first reservoir and the second reservoir. Additionally, there was enough water in this canal to satisfy a junior appropriator, junior to the right of the No. 2 Reservoir. And by clear implication, if we can satisfy a junior right on this canal, then we sure had enough water to satisfy the No. 2 Reservoir."

In accordance with procedures established by § 41-47.1(c) and (d), supra footnote 1, and the Board of Control, the matter was referred to the Board of Control for decision. The parties each filed a brief before the Board of Control. The appellant there asserted in his brief, which was filed on December 19, 1977:

"An examination of the statute discloses that for an abandonment to be proper it must be shown that:

"1. The holder of an appropriation of water has failed to use the water For the beneficial purposes for which it was appropriated During any five successive years.

"2. That the water user filing the petition Might be affected by a declaration of abandonment.

"3. That water was available for the appropriation during the period of alleged abandonment.

"The evidence presented at the hearing clearly established these elements. * * * " (Emphasis in original.)

However, in its same brief appellant also pointed out:

"Lastly, in concluding the discussion of the evidence which establishes the above mentioned elements of W.S. 41-47.1, it must be pointed out that Contestee did not present any evidence in its behalf to show that the right involved had not been abandoned. (T. at 127). Surely if the Contestee had anything to offer to rebut the testimony establishing the abandonment, it would have done so. In this regard, consideration must be given to the Wyoming case of Yentzer v. Hemenway, 440 P.2d 7, reh. den., 441 P.2d 320, (Wyo.1968), wherein our Supreme Court held that nonavailability, as well as other factors not under appropriator's control, is properly a matter of defense in a water abandonment case and contestants were not obligated to show availability over the period of nonuse. By failing to offer any evidence that abandonment was not proper, there can be but one logical inference to be drawn, i. e. that Contestee has in fact abandoned the subject water right. * * * "

The appellee filed his brief with the Board of Control on December 16, 1977. It contended for the position that appellant had failed to prove that water was available during the period of the alleged abandonment. Appellee conceded the fact of nonuse. Appellee disputed initially that appellant was " 'affected' or 'benefited' " by the proposed abandonment, but he did not bring that issue before this court; and thus we are not concerned with that point and make no decision in that regard. Before the Board of Control, the appellee made no attempt to respond ² to the argument that this court's decision in Yentzer v. Hemenway, supra, relieved the appellant of the burden of proving availability even though he had assumed that burden in the hearing.

An order, dated March 1, 1978, and entered on April 25, 1978, contained the declaration of the Board of Control, which in pertinent part read:

"FINDINGS OF FACT

"9. THAT the Contestee (appellee) introduced no evidence of the use of said water right, nor of the availability or nonavailability of water for such use.

"CONCLUSIONS OF LAW

"3. THAT nonavailability of water is properly a matter of defense and a burden which must be borne by the Contestee (appellee)." (Bracketed material added.)

On May 25, 1978, the appellee filed a petition for review in the district court as provided for in § 41-47.1(e), supra. That petition alleged a variety of errors, but the only ones that concern us are:

"(b) Finding of Fact No. 9 which states as follows:

" '9. THAT the Contestee introduced no evidence of the use of the said water right, nor of the availability or nonavailability of water for such use.' "is not a finding of a controlling fact, but is merely a finding that the Contestee did not present evidence on the particular point; that based upon all of the evidence presented, there was no finding of the basic fact that water was available during the necessary five-year consecutive period, and in any event, there was no substantial evidence showing the availability of water for use by the subject water right during such period;

"(d) That ...