State ex rel. Squaw Mountain Cattle Co. v. Wheatland Irr. Dist., 85-219

• Decision Date: 17 November 1986
• Docket Number: No. 85-219,85-219
• Citation: 728 P.2d 172
• Parties: The STATE of Wyoming ex rel. SQUAW MOUNTAIN CATTLE COMPANY and Two Bar-Muleshoe Water Company, Petitioners, v. WHEATLAND IRRIGATION DISTRICT, and its Board of Directors, Respondents.
• Court: Wyoming Supreme Court

Page 172

728 P.2d 172

The STATE of Wyoming ex rel. SQUAW MOUNTAIN CATTLE COMPANY and Two Bar-Muleshoe Water Company, Petitioners, v. WHEATLAND IRRIGATION DISTRICT, and its Board of Directors, Respondents.

No. 85-219.

Supreme Court of Wyoming.

Nov. 17, 1986.

Rehearing Denied Dec. 15, 1986.

Thomas S. Smith, Smith, Stanfield & Scott, Laramie, for petitioners.

William R. Jones, Jones, Jones, Vines & Hunkins, Wheatland, for respondents.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Chief Justice.

The parties to this proceeding seek to have resolved further the obligation of Wheatland Irrigation District to deliver water which is imposed by a contract for a reservoir site and various court proceedings relating to that contract. After careful consideration of the file and record before this court, earlier court proceedings relating to the subject matter of this controversy, and the briefs and arguments of counsel, the court is persuaded that the alternative writ of mandamus entered on January 14, 1986 should be made absolute. It hereby is ordered that the alternative writ of mandamus be, and it hereby is, made absolute.

Wheatland Irrigation District is the successor in interest of Wyoming Development Company which, on March 1, 1900, contracted with The Swan Land and Cattle Company (then a corporation existing under the laws of the United Kingdom of Great Britain and Ireland) to lease a site for a water storage reservoir. As consideration for the reservoir site, Wyoming Development Company agreed to furnish through the headgates for the Two Bar Ditch and the Muleshoe Ditch water to irrigate lands of The Swan Land and Cattle Company "lying under such ditches and capable of being irrigated therefrom." Wyoming Development Company agreed to furnish "throughout the irrigation season * * * such quantity of water as may be carried and conveyed through and by means of such irrigation ditches." In 1947 The Swan Company (the successor of The Swan Land and Cattle Company) conveyed its lands which lie under such ditches and are capable of being irrigated therefrom and transferred its rights under the reservoir lease to the Two Bar-Muleshoe Water Company. Squaw Mountain Cattle Company is one of the shareholders of Two Bar-Muleshoe Water Company, and its interest as a shareholder is proportionate to the lands that it owns which initially were transferred to the Two Bar-Muleshoe Water Company by The Swan Company.

The rights and obligations under this reservoir lease have been the subject matter of litigation in several cases. In litigation which culminated in the opinion in Anderson v. Wyoming Development Company, 60 Wyo. 417, 154 P.2d 318 (1944), certain individual purchasers of water from Wyoming Development Company attacked the right of The Swan Company to receive water pursuant to the reservoir lease. In essence the plaintiffs contended that The Swan Company had no right to use water from Reservoir No. 2 (the leased reservoir site) because its lands were not included in the reservoir permit. Demurrers to the complaint were sustained by the district court, and that judgment was affirmed. In the opinion in that case this court said:

"The amount of water thus contracted for is the amount the lessor's two ditches, known as the Two Bar and Mule Shoe, and whose dimensions are stated, can carry for the irrigation of certain lands of the lessor which are capable of irrigation; as additional consideration for this lease the lessee agrees to furnish water from the said Sybille Creek as shall be sufficient to irrigate 300 acres to be used upon lands selected by lessor.

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"It would appear that plaintiffs desire to retain the benefit of the reservoir and the lands which make it available, and yet deny to The Swan Company the right to have the agreed consideration for this use of its land.

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"We have discovered no sections in the statutory law of this state relative to reservoir supply water which were operative at the time this contract was made which would render it void. Plaintiffs have not directed our attention to any such enactments. We have already mentioned that, at the time this lease was made, no restrictive laws were in existence relative to the use of storage water except the elemental principles of due appropriation of water and the application thereof to a beneficial use. It would seem that these requirements have been met in this matter, as we have seen. * * * " Anderson v. Wyoming Development Company, supra, 60 Wyo. 492, 493, 154 P.2d 346, 347.

Some 30 years later Two Bar-Muleshoe Water Company brought an action against Wheatland Irrigation District seeking specific performance of the contract and damages. The district court entered judgment in favor of Two Bar-Muleshoe Water Company ordering Wheatland Irrigation District to perform the March 1, 1900 contract. Relief in the form of damages was denied "such having been waived and withdrawn." In that decision the district court indicated that the volume of water Wheatland Irrigation District must furnish for the 300 acres alluded to in Anderson v. Wyoming Development Company, supra, was "the statutory standard of 1 cubic foot per second for each 70 acres." An appeal by Wheatland Irrigation District from that judgment was dismissed because not all of the claims had been disposed of at that time, and the trial court did not make a determination pursuant to Rule 54(b), W.R.C.P., that there was no just reason for delay in entering a final judgment on fewer than all of the claims. Wheatland Irrigation District v. Two Bar-Muleshoe Water Company, Wyo., 431 P.2d 257 (1967). In arriving at that holding, however, this court stated that the lease provided for a quantity of water consistent with the carrying capacity of the ditches, rather than a quantity consistent with the statutory duty of water:

"It is 'distinctly' understood and agreed that the quantity of water to be furnished shall be that quantity which the ditches can carry 'with their present dimensions, as hereinabove stated.'

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"In order to prevail in an action for specific performance, it would seem plaintiffs would have been obligated to adduce convincing evidence of some nature as to the quantity of water intended." Wheatland Irrigation District v. Two Bar-Muleshoe Water Company, supra, 431 P.2d at 258.

The litigation in the district court then continued. The trial court ultimately concluded that the original carrying capacity of the Two Bar Ditch was 26 c.f.s., that the original capacity of the Mule Shoe Ditch was 25 c.f.s., and that the lease required Wheatland Irrigation District to provide water throughout the growing season of the lessor, even if that did not coincide with Wheatland Irrigation District's irrigation season. Judgment was entered in favor of Two Bar-Muleshoe Water Company, and Wheatland Irrigation District appealed. The decision of the district court was affirmed, but it was modified to reflect that the capacity of the Mule Shoe Ditch was only 17.5 c.f.s., and the total acreage to be irrigated was identified as 1,597 acres. Wheatland Irrigation District v. Two Bar-Muleshoe Water Company, Wyo., 521 P.2d 1334 (1974).

This brings us to the present controversy. It appears that in 1980, 1981 and 1982, Wheatland Irrigation District refused to honor demands for water made by Two Bar-Muleshoe Water Company. In the spring of 1983, perhaps in an attempt to resolve the controversy, Wheatland Irrigation District attempted to purchase the lands of Squaw Mountain Cattle Company. In the spring of the following year the district court issued a decision letter refusing a request by Two Bar-Muleshoe Water Company that the court hold Wheatland Irrigation District in contempt for the refusals to deliver water in the years 1980, 1981 and 1982. The decision letter stated that Wheatland Irrigation District's actions were not "flagrant, wanton or malicious." Then in 1984 Two Bar-Muleshoe Water Company filed suit against Wheatland Irrigation District asking for specific performance of the contract, requesting an order to Wheatland Irrigation District to comply with the decision of this court in 1974, and praying for damages for the refusal to deliver the water demanded in the years 1980 through 1983. Wheatland Irrigation District answered this complaint and counterclaimed for a declaration of its duties under the contract and for a taking by eminent domain of the leased reservoir site. Two Bar-Muleshoe Water Company then filed a motion for summary judgment on all of the issues in the case. The trial judge wrote a decision letter which denied summary judgment on the specific performance count because factual questions existed as to beneficial use and impossibility of performance, and the matter of eminent domain was held in abeyance. Counsel professed confusion with respect to this letter and an additional letter from the district judge followed.

In the fall of 1985, while the suit described above was pending in the district court, Wheatland Irrigation District again refused to honor Two Bar-Muleshoe Water Company's demand for water subsequent to September 15, 1985, and on that day Wheatland Irrigation District cut off the water. On October 2, 1985, counsel for Two Bar-Muleshoe Water Company arranged a conference call involving himself, the district judge, and counsel for Wheatland Irrigation District. The product of this telephone call was that the trial court ordered Wheatland Irrigation District to continue delivering water and set a hearing for October 17, 1985.

After that order Wheatland Irrigation District filed in this court a petition for a writ of prohibition against the trial court which addressed the oral order to deliver water and claimed that the water was not needed; the natural flow of Sybille Creek was sufficient to provide water; Wheatland Irrigation District needed to preserve water for the 1986 water season; delivery would waste...