Thayer v. City of Rawlins, 4991

Citation594 P.2d 951
Decision Date04 May 1979
Docket NumberNo. 4991,4991
PartiesEdith M. THAYER, a/k/a Edith Thayer, Individually and as Executrix of the Estate of Sid Thayer, Bruce L. Thayer, Joan L. Thayer, Herbert F. Luthy, Richard D. Howieson and Pearl Irene Howieson, Appellants (Some of defendants below), v. CITY OF RAWLINS, a Wyoming Municipal Corporation, Appellee (Plaintiff below).
CourtUnited States State Supreme Court of Wyoming

John A. MacPherson, and Catherine L. Dirck, Legal Intern, MacPherson, Golden & Brown, Rawlins, for appellants.

Steve D. Noecker, of Johnson & Noecker, Rawlins, and Frank J. Trelease, Stoughhouse, Cal., for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

This appeal concerns the rights of the defendant water users to effluent water discharged by the City of Rawlins. By virtue of water rights dating from 1900, the City of Rawlins has imported all of its municipal water supplies from the North Platte River and from Sage Creek, a tributary of the North Platte River. After using the water for municipal purposes, the City has historically discharged the resulting effluent into a channel, known as Sugar Creek, which connects with the North Platte River. In the past, the point of this discharge was above the points at which the defendants diverted the effluent for irrigation, stock water and other purposes. Defendants diverted the effluent pursuant to certificates of appropriations giving them priorities to the Sugar Creek effluent dating from 1914. To be in compliance with state and federal water-quality laws, the City must now meet certain minimum-quality standards before discharging water into Sugar Creek. To meet these standards, the City of Rawlins proposes to establish an aerated lagoon system at a location which will cause the purified water to reach Sugar Creek at a point below the defendants' point of diversion. In an effort to determine the legal effect of this proposal, the City sought and was granted a judgment declaring that the defendants were not entitled to compensation for the loss of this water. We will affirm the district court's judgment.

Certain aspects of this case justify a full and detailed explanation of the facts. According to an Agreed Statement of Facts, the City acquired water rights, in 1923, to water originating at the headwaters of Sage Creek, a tributary of the North Platte River. Thereafter, water wells previously providing the City with water were abandoned, and the City became totally dependent on the Sage Creek-North Platte water.

This water, which is piped some 32 miles to the City, was supplemented by additional water rights obtained in 1966. The remainder of the water supplied to the City is by virtue of a water right obtained by assignment from the Union Pacific Water Company in 1964. This water is transported some 16 miles from the North Platte River to the City through another pipeline.

It is agreed that Sugar Creek consists of a channel which heads some 16 miles west of Rawlins. The channel parallels the south side of the Union Pacific Railroad from a point west of the City to a point about 4 miles east of Rawlins, where it bends north across the railroad and meanders northeasterly, eventually emptying into the Platte River. Originally, the channel of Sugar Creek was used as an open sewer for parts of Rawlins. Subsequently, sanitary sewer mains were installed and the sewage was carried to a point east of Rawlins where it was again disgorged into the Sugar Creek channel. Since the City began disgorging its waste waters into Sugar Creek, the defendants perfected certificates of appropriations, claiming the right to use water out of Sugar Creek at points below where the City disgorges its sewage.

Evidence adduced at trial indicates that whatever flow of water occurred in Sugar Creek below the City was attributable to the City's discharge of sewage. From April to October of each year, this discharge would amount to a daily average of 2.76 cubic-feet-per-second of water. Above the City, a flow occurred in Sugar Creek only after a rainstorm or during snow-melt. The City's expert classified Sugar Creek above the City as an ephemeral stream, or one that runs only in direct response to rainfall and high snow-melt events and not as a result of ground-water flow. In the 1930's, a diversion dam was constructed apparently without approval of State authorities which directs this flow into an area known as Hogback Lake. At trial, the City stipulated that it would not object to actions taken to prevent this flow from entering Hogback Lake or to the restoration of the natural channel of Sugar Creek for this purpose.

It is noted that the State of Wyoming was originally a named party to this suit. At trial, the City and the State of Wyoming stipulated that the State would withdraw from the action conditioned on the City's agreement that it would continue to discharge intermittently into Sugar Creek a majority of the sewage effluent it historically discharged into Sugar Creek, and that such waters would be available to water users downstream from the City's point of discharge, as well as to satisfy effluent appropriations in the North Platte River. When asked by the court whether this withdrawal carried the connotation that the State Engineer didn't want to administratively be involved in this matter, the attorney for the State responded that the State had jurisdiction over the use of the natural waters of the State and that this would go to the City's use of the water in question. 1

It is also noted that the City, in 1922, conveyed by deed all rights to water passing through the sewer pipe and reaching a 20-acre parcel of land, presently owned by Walter Olson and Olson Sisters Corporation, described in a State Engineer Certificate of Appropriation. The City admitted its obligation under this deed.

Subject to the above-mentioned stipulations, the district court found that Sugar Creek was not a natural stream and, therefore, the defendants' appropriations were invalid and did not entitle them to compensation by reason of the City's proposed actions. The court found that the City had the power to recapture all of its future sewage for the purpose of disposing of in it any manner it deemed appropriate. Finally, the court found that the State Engineer had no jurisdiction over the Rawlins facilities or the water in question, and that his Defendants state their position as follows:

approval was not required for the planned changes.

"I. The State Engineer and State Board of Control have jurisdiction over the proposed Rawlins facilities and waters of Sugar Creek which must be invoked before judicial determination is proper.

"II. Defendants have vested property rights that are established in Wyoming water law and are entitled to compensation before those water rights are taken away."

ENTITLEMENT TO COMPENSATION 2

Defendants premise their claim to compensation on the belief that Sugar Creek below the City of Rawlins has, due to the passage of a long period of time, become a natural stream subject to appropriation, thus entitling the defendants to protections afforded to other holders of water rights in the state.

Defendants also assert that Sugar Creek Above the City is a natural stream. Frankly, we fail to see the importance of classifying the portion of Sugar Creek that lies above Rawlins. The extent to which the defendants have a right or interest in this upper flow of water is not at issue in this case. To the extent that they have a right to such waters a question we do not here decide the City has agreed not to interfere with a restoration of the natural channel of this portion of Sugar Creek. The importance of classifying Sugar Creek above the City is further lessened when it is realized that the water, for which defendants seek compensation, is derived solely from discharges that have their source in the North Platte River and tributaries thereof. These waters are entirely distinct from those, if any, originating in the Sugar Creek drainage basin above the City of Rawlins.

While it is true that these defendants have acquired certificates of appropriations, indicating a right to waters contained in Sugar Creek, we find that the validity of these permits for purposes of protection from the City's proposed actions, and compensation turns on an analysis of the parties' relative rights to the use of these imported waters. If the City, insofar as these defendants are concerned, has the unrestricted right to change its use and the point of discharge of these imported waters, then it matters little that these defendants hold water permits or have relied on these waters in the past for irrigation and other purposes. The issue of whether Sugar Creek has become a natural stream loses its importance in this context. If the City has the unrestricted right referred to above, then with the possible exception of its relationship to certain jurisdictional matters the determination of whether Sugar Creek below the City is a natural stream would be a resolution of a nonissue.

More than fifty years ago, this court stated, in Wyoming Hereford Ranch v. Hammond Packing Company, 33 Wyo. 14, 236 P. 764, 772 (1925):

". . . Even in this state, where the conservation of water for irrigation is so important, we would not care to hold that in disposing of sewage the city could not adopt some means that would completely consume it. It might, we think, be diverted to waste places, or to any chosen place where it would not become a nuisance, without any consideration of the demands of water users who might be benefited by its disposition in some other manner. . . ."

While we may not rely on the Wyoming Hereford Ranch decision for a disposition of the present case due to significant factual distinctions it is somewhat prophetic with respect to the clash, between concepts of western water law and the directives of environmental-protection statutes, now before us. We will not, however,...

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3 cases
  • Arizona Public Service Co. v. Long
    • United States
    • Arizona Supreme Court
    • April 17, 1989
    ...77 Wyo. 80, 307 P.2d 593 (1957). The junior appropriator, using waste water, "takes his chance" on continued flow. Thayer v. Rawlins, 594 P.2d 951 (Wyo.1979). To hold otherwise and require the Cities to continue to discharge effluent would deprive the Cities of their ability to dispose of e......
  • Montana v. Wyoming
    • United States
    • U.S. Supreme Court
    • May 2, 2011
    ...of use, and place of use. See, e.g., Maclay v. Missoula Irrig. Dist., 90 Mont. 344, 355–357, 3 P.2d 286, 291 (1931) ; Thayer v. Rawlins, 594 P.2d 951, 955 (Wyo.1979). The abundance of litigation over such changes—and the absence of any litigation over the sort of change at issue here—strong......
  • Whitt v. Hat Bar Cattle Co. (In re Gen. Adjudication of All Rights to Use Water in the Big Horn River Sys.)
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    • Wyoming Supreme Court
    • September 16, 2015
    ...in the context of irrigation water rights. We have previously recognized that irrigation in Wyoming is seasonal. Thayer v. Rawlins, 594 P.2d 951, 963 (Wyo.1979). Using irrigation water only during the summer is not “uninterrupted” use. Indeed, under our statutes, an abandonment of a water r......
2 books & journal articles
  • Artificial Waterways in International Water Law: An American Perspective.
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    • Vanderbilt Journal of Transnational Law Vol. 55 No. 1, January 2022
    • January 1, 2022
    ...that the origin of a watercourse "he exclusively the work of nature. It may be aided by the hand of man."); Thayer v. City of Rawlins, 594 P.2d 951, 962 (Wyo. Sup. Ct. 1979) (Rooney, J., dissenting) (recognizing a "'water course' created by man to be a natural stream.") (citing Binning v. M......
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    • United States
    • Wyoming State Bar Wyoming Lawyer No. 32-5, October 2009
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