Reed v. Cloninger
| Decision Date | 24 March 2006 |
| Docket Number | No. 05-74.,05-74. |
| Citation | 2006 WY 37,131 P.3d 359 |
| Parties | R. Michael REED and Icia Reed, Appellants (Plaintiffs), v. Leslie E. CLONINGER, Jr., Co-Trustee and Stanley Sheppard, Co-Trustee of the Carl M. Burgener Family Living Trust Fund; Cox and Fisher, Inc., a Wyoming corporation; Kenneth Jones; Melvin C. Parker; Janet L. Parker; and Shoshone Irrigation District, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming, for Appellants.
S. Joseph Darrah of Darrah, Darrah & Brown, P.C., Powell, Wyoming, for Appellees Cloninger and Sheppard, Co-trustees of the Carl M. Burgener Family Living Trust Fund
S.B. Freeman III of Bormuth & Freeman, LC, Cody, Wyoming, for Appellee Cox and Fisher, Inc.
Patrick J. Murphy and Jakob Z. Norman of Williams, Porter, Day & Neville, P.C., Casper, Wyoming, for Appellee Jones
David B. Hooper of Hooper Law Offices, P.C., Riverton, Wyoming, for Appellees Melvin C. and Janet L. Parker
Michelle A. Pinkowski and Robert G. Busch of Godfrey and Lapuyade, P.C., Englewood, Colorado, and Harriet M. Hageman of Hageman & Brighton of Cheyenne, Wyoming, for Appellee Shoshone Irrigation District. Arguments presented by Ms. Pinkowski and Messrs. Hooper and Freeman.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.
[¶ 1] Appellants, R. Michael Reed and Icia Reed, husband and wife, (the Reeds), filed a complaint on March 31, 2004, alleging claims of negligence, nuisance, trespass, and a prayer for injunctive relief. The basis for those claims was that Appellees had caused irrigation water to damage their home. When speaking of the Appellees collectively, we will call them Appellees, and each individual Appellee may also be referred to by a given name or other identifying term. The district court granted summary judgment in favor of Appellees on the basis that the claims of the Reeds were barred by the application of the four-year statute of limitations. We conclude there are genuine issues of material fact which must be resolved before the statute of limitations can be applied and, therefore, reverse and remand for further proceedings consistent with this opinion.
[¶ 2] The Reeds raise these issues:
1. Whether the district court erred in ruling that the [Reeds'] claims were time barred and finding that the [Reeds] had discovered their cause of action when they knew of water damage to their home, but did not have any knowledge of continuing seepage into their basement.
2. Whether the district court erred by failing to recognize the continuing duty of the Appellees and by refusing to hold that each new incident of water seeping onto the [Reeds'] property constituted a new cause of action for statute of limitations purposes.
Each of the Appellees states the issues in a form very similar to this:
A. Whether the district court erred in ruling that the [Reeds'] claims were barred by the statute of limitations based on the fact that they knew or should have known of the existence of ground water damage in their basement when they purchased the home in December 1999.
B. Whether the district court erred in refusing to find each new incident of water allegedly seeping onto the [Reeds'] property constituted a new cause of action for statute of limitation purposes.
[¶ 3] At the outset, we will briefly introduce the Appellees and the role each plays in the facts and circumstances giving rise to this case.
[¶ 4] Appellees, Leslie E. Cloninger, Co-trustee, and Stanley M. Sheppard, Co-trustee, of the Carl M. Burgener Family Living Trust Fund (Burgener Trust) owned farmland neighboring the Reeds until 2003, at which time that land was sold to the Appellees Melvin C. and Janet L. Parker (the Parkers). Kenneth Jones (Jones) also owns farmland in the area that adjoins the Reeds' home. The Burgener Trust considers itself a nominal party at this stage of the proceedings.
[¶ 5] The house now owned by the Reeds was built in 1939 by F.J. Burgener, and he lived there until his death in 1968. During that entire time, the basement of the house had water in it, and he was unable to abate the problem. Donald F. Burgener lived in the house from 1968 until 1998. When water seeped into the basement, he would pump it out. According to Donald F. Burgener, this water seepage was caused by a rise in the water table under the farmland in the area, and that rise was caused by groundwater due to irrigation of the farmland. So long as the house sits in the middle of the farming community wherein it was constructed and the local farmers continue to farm around it, the water table will be high at certain times, and the basement of the house will take on water. Appellees Cox and Fisher, Inc. (Cox and Fisher) have farmed the property west, north, and east of the Reeds for a number of years. Cox and Fisher lease that farmland from the Parkers and Jones.
[¶ 6] The Shoshone Irrigation District (District) provided a comprehensive statement of the facts that we will recite in its detail:
1. In 1925, the District was incorporated pursuant to Wyoming law as an irrigation district, upon petition by owners of the lands that were to be included within the new irrigation district.
2. In 1926, the District contracted with the U.S. Department of the Interior, Bureau of Reclamation, to become a reclamation district under the 1902 Reclamation Act and subsequent Reclamation laws. Through that contract, the District agreed to deliver reclamation water to farmers within its boundaries. At the time of making the contract, it was specifically contemplated that "seepage and other unavoidable incidental losses" would occur and be taken into account in performing the terms of the contract.
3. The District delivers water to its user via gravity from the Garland canal, its main canal, to laterals (which are underground pipes), then from the laterals to sub-laterals (which are also underground pipes), then from the sub-laterals to headgates (measuring devices/valves that the District can turn on or off to deliver water, depending on water requests).
4. The property at issue in this case lies in the southwest portion of the Shoshone Irrigation District, on the southwest corner of a farm. This area is covered by lateral "R," then sub-laterals "OR" and "2R." Sub-lateral OR is north of [the Reeds'] property and does not border it. Sub-lateral 2R runs along the southern boundary of [the Reeds'] property. At the southwest corner of [the Reeds'] property is headgate "2R-1."
5. The District turns 2R-1 on and off at various times during the irrigation season to meet the water demands of its customers. When the headgate is turned on, water flows from sub-lateral 2R through 2R-1 and into the 2R-1 ditch running along the west side of [the Reeds'] property, for delivery to water users to the north of [the Reeds'] property.
6. Just to the west of the 2R-1 head ditch is the OR-1 waste ditch, into which water drains from the fields west of [the Reeds'] property. This waste ditch deposits the water back into the District's system by means of pipes which run under, but are not a part of, the 2R-1 headgate.
7. In 1939, F.J. Burgener built the house located at 1173 Lane 11, Powell, Wyoming 82435, which is the house [the Reeds] purchased in November of 1999.
8. According to Donald F. Burgener, the son of F.J. Burgener, water seeped into the basement of the house each and every irrigation season the entire time the Burgener family lived in this house, from 1939 until 1988.
9. The Burgeners dealt with this issue by placing items in the basement—freezers, a refrigerator, a stove, and a meat cutting table—on six-inch blocks and by using a sump pump to pump water back out into the OR-1 waste ditch.
10. When the Burgeners sold the house to Kyle and Mary Johnson in 1991, the house was inspected for a Federal Housing Administration (hereinafter "FHA") loan. It was noted at that time that the basement was and would continue to be wet during certain times of the year. After 52 years of the basement getting wet, the only repair that the FHA deemed required was shoring up some support beams.
11. The Johnsons lived in the house until 1999, when [the Reeds] bought the property and moved in.
12. Prior to selling the property to Mr. Reed, the Johnsons disclosed to him, in a "Seller's Property Disclosure" (hereinafter "Seller's Disclosure"), that there were moisture and/or water problems in the basement and crawl space. Their handwritten note regarding this issue stated that the basement and crawl space could get wet if the yard was flood irrigated.
13. Prior to purchasing the property, [the Reeds] commissioned Heart Mountain Home Inspections in Powell, Wyoming, to inspect the property and produce a "Building Inspection Report" (hereinafter the "Report"). The inspection was conducted on November 4, 1999.
14. [The Reeds] and the real estate broker for the Johnsons, William Metzler, were present during the inspection. Mr. Metzler has described the conversation he held with [the Reeds] on that day regarding the fact that the basement of the house gets wet during the irrigation season. Mr. Metzler told [the Reeds] that before the Johnsons bought the house, the Burgeners had to repair the beams in the basement due to water damage. Mr. Reed informed Mr. Metzler that he was an engineer and he understood the water damage issue.
15. The Report resulting from the November 4, 1999 inspection stated in numerous places that there was evidence of damage caused by long-term seasonal flooding in the basement. On page three it stated:
Minor horizontal cracking was observed in the foundation at the north wall. Cracks of this nature are usually the result of soil pressures on the exterior of the foundation wall, or "adfreezing" (frozen soil attaching itself to the foundation and causing uplift). In either case, attempts should be made to reduce moisture content in the soil...
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