Rennard v. Vollmar, 98-59
| Decision Date | 15 April 1999 |
| Docket Number | No. 98-59,98-59 |
| Citation | 977 P.2d 1277 |
| Parties | Thomas and Nancy RENNARD, Appellants (Plaintiffs), v. Jerry and Rondi VOLLMAR, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Patrick T. Holscher of Schwartz, Bon, Walker & Studer LLC, Casper, for Appellant.
Keith P. Tyler, Casper, for Appellee.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, * JJ.
This appeal presents a dispute about an irrigation ditch between two adjoining landowners, the Rennards and the Vollmars, whose respective parcels earlier were joined as one under a unity of ownership. At issue are the rights in the irrigation ditch which runs across the Vollmars' non-irrigated parcel while delivering appropriated water to the Rennards' irrigated parcel. The Rennards' water rights and the irrigation ditch through which the Rennards' appropriated water flows were established when these adjoining parcels were one under a unity of ownership. In 1973, the unified property was divided, creating the two adjoining parcels involved in today's dispute; the two parcels have not been under common ownership since. The precise question we must answer is the applicability in this dispute of the rule stated in Frank v. Hicks, 4 Wyo. 502, 522, 35 P. 475, 480 (1893), reh. denied, 4 Wyo. 502, 35 P. 1025 (Wyo.1894), that "a right to the use of water for the irrigation of land, together with the ditch making such right available, becomes ... so attached to the land irrigated as to pass by a conveyance of the land without mentioning the water right...." After a bench trial, the district court held that the law of implied easements, not the Frank rule, applied to this dispute; that the Rennards had failed to prove the elements of the law of implied easements and, therefore, their claim of ditch ownership failed; and that the Vollmars owned the ditch. We hold that the district court erred; that the Frank rule applies to this dispute; and that the Rennards, as owners of the irrigated parcel, are owners of and are entitled to reasonable access to the ditch which crosses the Vollmars' non-irrigated parcel. We reverse and remand this case for further proceedings consistent with this decision.
Rennards present this single issue for our review:
Is the means of conveying water attached to a water right such that it passes in a transfer of water right ownership without specific mention of that means of conveyance.
Vollmars restate the issue presented to the Court for review as:
whether or not the tests of implied easement under Wyoming law are applicable to an existing irrigation ditch for which there is no express grant or reservation of easement.
The parties' two adjoining parcels are located in Natrona County and were originally one contiguous parcel under one ownership. The Rennard parcel is a portion of the property generally described as the NE 1/4 of Section 11. The Vollmar parcel is described as the NW 1/4 of Section 11. While the parcels were under one ownership, farming was established on the Rennard parcel; and it has always been irrigated and received water from an irrigation ditch crossing the entire property, including that part which is now the Vollmar parcel. The irrigation ditch runs across the Vollmar parcel before entering the Rennards' irrigated acreage.
The irrigation ditch apparently was built sometime in the 1940's while both parcels were owned by the Engbergs. The Engbergs irrigated the NE 1/4 of Section 11 of their land that eventually was sold to the Rennards. In 1964, the unified property was sold to the Schwartzkopfs. In 1967, the Schwartzkopfs were granted water rights for the irrigated land in the NE 1/4 of Section 11 with priorities of appropriation of July 27, 1934, April 25, 1936, and December 1, 1931. Water was delivered to the irrigation ditch from the Casper-Alcova Irrigation System.
In 1968, the unified property was again sold. After yet another sale in 1969 to the Kellers, the unified property, in 1973, was divided into the two adjoining parcels that exist today, the Kellers selling the irrigated NE 1/4 of Section 11 (the Rennard parcel) to Bruce and Esther Allen while retaining the non-irrigated NW 1/4 (the Vollmar parcel). This transfer included "all water allotments and water rights appurtenant thereto," but was silent on the irrigation ditch which crossed the adjoining NW 1/4 (Vollmar parcel). The Allens sold the NE 1/4 parcel to Larry and Vicki Jo Allen, who later sold it to the Rennards on November 4, 1994. The Rennards purchased this parcel in order to farm it and intended to irrigate their fields. The contract for sale provided that the Rennards were to be given written permission for access to all the irrigation ditches for the purpose of clean up, preventative work, and the like. No such written permission was provided to Rennards nor was an easement for the ditches included in the deed from the Allens to the Rennards; however, the Rennards closed on their purchase with the Allens and accepted the property. The deed conveying the property was silent on water rights as well as access to the irrigation ditch.
The parcel that the Vollmars ultimately purchased went through a series of transfers that were entirely silent on ditch and water rights, and the record indicates that the Vollmars were not deeded any water rights and are not entitled to any of the water flowing through the irrigation ditch that is part of the Rennards' appropriation from the Casper-Alcova Irrigation System. The Vollmar parcel has never been used for agricultural purposes and is not so used today. The parties do not dispute that there was never an express grant or reservation of easement for the ditch in question in any of the transfers.
Shortly after acquiring their property, the Rennards began to order water from the Casper-Alcova system in order to irrigate their fields. They experienced difficulty receiving the water as it passed through the Vollmar property, and their investigations revealed that the Vollmars had placed irrigation headgates on two reservoirs they had built immediately astride the ditch and were taking water from the ditch. Believing the Rennards had no ownership interest in the ditch, the Vollmars denied the Rennards access to their property for maintenance and use of the ditch.
Rennards filed suit alleging intentional destruction of property, conversion, negligence, and prescriptive easement. They sought both damages and injunctive relief. The Vollmars filed a counterclaim for trespass and property damage. Both parties moved for summary judgment. In denying the Rennards' motion, the district court stated that
[p]laintiffs' argument that "The Ditch Follows the Right," citing Frank v. Hicks, 4 Wyo. 502, 35 P. 1025 (Wyo.1893), would appear to have logical application to the case at bar. However, it would also appear essential to the claims asserted in this case for Plaintiffs to have a legally established easement or property right upon the property of the Defendants in order to sustain any of their claims.
The Vollmars were granted summary judgment on the issue of a prescriptive easement, all other summary judgment motions were denied, and the matter proceeded to bench trial. The district court issued findings of fact and concluded that the issue was whether the Rennards had an implied easement in the ditch. The district court found that the Rennards' use was permissive, and it was feasible for them to build their own ditch. The district court concluded, as a matter of law, no implied easement was intended at the time of the property division.
When a trial court in a bench trial makes express findings of fact and conclusions of law, we review the factual determinations under a clearly erroneous standard and the legal conclusions de novo. Stansbury v. Heiduck, 961 P.2d 977, 978 (Wyo.1998); Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1176 (Wyo.1997).
The Rennards contend that the district court erred, as a matter of law, in applying the law of implied easements to resolve this dispute. They assert that long ago, in Frank, this Court adopted for...
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