Stern v. Metro. Water Dist. of Salt Lake & Sandy, 20100339.

Decision Date20 March 2012
Docket NumberNo. 20100339.,20100339.
Citation2012 UT 16,274 P.3d 935
CourtUtah Supreme Court
PartiesEric STERN, Michaela Stern, Loraine Sundquist Berolatti, Lloyd J. Cummings, Lorraine Cummings, Leland Richins, Linda A. Richins, Anthony A. Costanza, DeVonna Costanza, Roger Chase, Becky Chase, L. Craig Hamada, Susan Hamada, Jeff Darby, and Kim Darby, Plaintiffs and Appellants, v. METROPOLITAN WATER DISTRICT OF SALT LAKE & SANDY, Draper City, and Draper Irrigation Company, Defendants and Appellees.


Stephen K. Christiansen, Kelley M. Marsden, Salt Lake City, for appellants.

W. Cullen Battle, Rachel G. Terry, Rachel S. Anderson, Salt Lake City, for appellee Metropolitan Water District of Salt Lake & Sandy.

Douglas J. Ahlstrom, Benjamin C. Rasmussen, Draper, for appellee Draper City.David B. Hartvigsen, Matthew E. Jensen, Salt Lake City, for appellee Draper Irrigation Company.

Justice LEE authored the opinion of the Court, in which Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING joined.

Justice LEE, opinion of the Court:

¶ 1 The Point of the Mountain Aqueduct is a sixty-inch diameter pipeline that runs along the historic Draper Canal and transports culinary water to Salt Lake City and other cities in the Salt Lake Valley. Plaintiffs in this case are homeowners who asserted claims challenging Metropolitan Water District's construction of the aqueduct as exceeding the scope of its real property rights along the canal route. The district court granted summary judgment for the Water District. We affirm that decision in most respects, but reverse and remand for further proceedings on one issue.


¶ 2 Appellants are four private property owners in Draper, Utah whose land abuts the Point of the Mountain Aqueduct. Metropolitan Water District of Salt Lake & Sandy is a water district organized under the Metropolitan Water District Act. See Utah Code §§ 17B–2a–601 to –608. The District constructed the aqueduct on real property it acquired through its codefendants, Draper City and Draper Irrigation Company.1 The District placed the aqueduct along the Draper Canal, which was originally constructed sometime between 1915 and 1921 by the District's predecessor in interest, Utah Lake Irrigation Company (ULIC).

¶ 3 In the following paragraphs, we (a) first recount ULIC's original acquisition of property rights for its construction of the Draper Canal; (b) then explain the canal's usage from 1921 through the 2005 construction of the Point of the Mountain Aqueduct; and (c) conclude with a discussion of the procedural history of this case.


¶ 4 In 1914, ULIC sought to develop an irrigation canal on the southeast benches of the Salt Lake Valley and began obtaining the necessary property rights. At the time, appellants' predecessors in interest owned four parcels of land in the proposed path of the canal. ULIC used three different methods to obtain rights in these parcels: (1) voluntary transfers, (2) a stipulated condemnation judgment, and (3) a contested condemnation judgment. ULIC constructed the Draper Canal after successfully obtaining property rights in a fifty-foot strip of land traversing appellants' predecessors' parcels. The company identified the lengths of the canal corresponding to the boundaries of each parcel as “reaches.” Reaches 16–19 are at issue in this case.

¶ 5 ULIC obtained Reaches 16 and 17 by warranty deed from Bayard and Matilda Crosgrove in 1914 (Crosgrove Deeds I and II, respectively). The relevant language in the Crosgrove Deeds is identical, stating that the grantors “hereby convey and warrant to Utah Lake Irrigation Company a “described tract of land in Salt Lake County.” Both Deeds further state that the “strip of land [is] to be used for canal purposes only.” Appellants Anthony Costanza and DeVonna Costanza are the Crosgroves' successors in interest as current owners of the property abutting Reach 16. Appellants Eric Stern, Michaela Stern, Leland Richins, and Linda Richins are also the Crosgroves' successors in interest as current owners of the property abutting Reach 17.

¶ 6 ULIC obtained Reach 18 through a stipulated Judgment in Condemnation against the Susannah Crane family, entered August 22, 1914 (the Crane Judgment).2 Prior to the Judgment, the Cranes had agreed that “a decree of condemnation may be entered herein, condemning in fee to plaintiff the property hereinafter described for the purpose of constructing and maintaining a canal.” Pursuant to this stipulation, the Judgment stated that the “action was commenced to condemn the property ... for the purpose of constructing and maintaining a canal,” and ordered “that plaintiff take and acquire and have [the property] for its use in fee.” Appellant Loraine Berolatti is the Cranes' successor in interest as current owner of the property abutting Reach 18.

¶ 7 ULIC obtained Reach 19 through a condemnation decree (the Smith Decree), entered July 21, 1915, after a jury trial against Elida H. Smith. The Smith Decree granted ULIC a “right of way for its canal and for the construction, operation and perpetual maintenance” of the canal. Appellants Lloyd Cummings and Lorraine Cummings are Smith's successors in interest as owners of the property abutting Reach 19.


¶ 8 In 1921, after acquiring the necessary property rights and building the Canal, ULIC transferred ownership of the canal to Draper Irrigation Company. Draper Irrigation used the canal for the next seventy years to transport irrigation water from the Jordan River to farmland in southeastern Salt Lake County.

¶ 9 Over the years, the canal began to receive increased flows of urban and storm water runoff, and in 1975, Draper Irrigation granted Salt Lake County the right to use the canal as part of its storm drain and flood control system. Then in 1998, Salt Lake County transferred control over the storm drain and flood control uses of the south portion of the canal (including Reaches 16–19) to Draper City, which continued using the canal for storm drainage.

¶ 10 Meanwhile, in 1993–94, Draper Irrigation installed underground irrigation-water pipelines across most of the canal, but not across Reaches 16–19, which remained open. Draper Irrigation ceased cleaning and maintaining the open portions of the Canal in 1993, and then ceased transporting open irrigation water sometime between 1993 and 1995.3

¶ 11 In 1998, Draper City began negotiating with Draper Irrigation to acquire the canal for use as a public trail and for storm drainage purposes. Draper Irrigation eventually conveyed its interest in the canal to Draper City in 2001.

¶ 12 Soon afterward, in 2002, Metropolitan Water District of Salt Lake & Sandy negotiated with Draper City to build the Point of the Mountain Aqueduct through the City. The proposed aqueduct would carry culinary water from the District's Point of the Mountain Water Treatment Plant to other treatment plants in the area. Following these negotiations, Draper City executed a “Non–Exclusive Pipeline Right of Way and Easement Agreement,” granting the District use of the canal for its Aqueduct.

¶ 13 The Water District began construction in 2005, and during the course of this litigation it has completed the buried aqueduct and graded the surface of the old Draper Canal. In connection with laying the sixty-inch pipeline, the District constructed cement air-valve structures that rise a number of feet above ground,4 and installed a fiber-optic control cable that operates the valves. According to appellants, “one of the concrete blocks is directly in front of the Sterns' front door.” Draper City has also constructed a public bicycle path along the graded surface of the old Canal, traversing Reaches 16–18 abutting appellants' property.5


¶ 14 Appellants brought this action in the district court at the outset of the Water District's construction of the aqueduct. The court denied appellants' initial request for a preliminary injunction, and the parties cross-moved for summary judgment while the construction proceeded. In their summary judgment motion, appellants argued that:

(1) The Crosgrove Deeds, the Crane Judgment, and the Smith Decree conveyed easements solely for the purpose of an irrigation canal;

(2) The aqueduct exceeded the scope of these easements because it was for culinary use and because the air-valve structures burdened the servient estate beyond the contemplation of the original parties; 6

(3) In the alternative, even if the Crosgrove Deeds and the Crane Judgment conveyed fee interests, the instruments contained restrictive covenants that run with the land, limiting use of the property to the original irrigation canal; and

(4) As an additional alternative, Draper Irrigation abandoned its easements when it ceased using Reaches 16–19 for open irrigation flows in 1995.

¶ 15 The District, joined by Draper City and Draper Irrigation, argued that the Crosgrove Deeds and the Crane Judgment conveyed fee interests and contained only personal covenants that did not run with the land. It conceded that the Smith Decree granted only an easement, but argued that the scope of the easement was broad enough to include the buried, culinary-water pipeline and the air-valve structures. Finally, the District argued that it never intended to abandon the easement and continued using the easement for storm water purposes between 1993 and 2001.

¶ 16 The district court denied appellants' motion and granted summary judgment to the Water District. Concerning Reaches 16–17, the court concluded that the Crosgrove Grants “were standard warranty deeds that ‘conveyed and warranted’ fee interests to ULIC, and that the deeds' “canal purposes only” language was merely a personal covenant that “does not bind successive owners.”

¶ 17 Concerning Reach 18, the court concluded that the Crane Judgment conveyed a fee interest to ULIC because the judgment “specifically refers” to a conveyance “in fee.” In addition, the underlying stipulation expressly authorized a condemnation...

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