Valcarce v. Fitzgerald, s. 960144

CourtSupreme Court of Utah
Citation961 P.2d 305
Docket Number960201,Nos. 960144,s. 960144
Parties346 Utah Adv. Rep. 23 Jim J. VALCARCE, Plaintiff and Appellant, v. James B. FITZGERALD, Defendant and Appellee. James B. FITZGERALD, Counterclaim Plaintiff, v. Paul VALCARCE, Jim J. Valcarce, and Paul C. Valcarce, Counterclaim Defendants and Appellant. Fairview "C" Bar Ranch, a Utah general partnership, DeWayne Julander, and Joyce Julander, Intervenors.
Decision Date26 June 1998

Page 305

961 P.2d 305
346 Utah Adv. Rep. 23
Jim J. VALCARCE, Plaintiff and Appellant,
James B. FITZGERALD, Defendant and Appellee.
James B. FITZGERALD, Counterclaim Plaintiff,
Paul VALCARCE, Jim J. Valcarce, and Paul C. Valcarce,
Counterclaim Defendants and Appellant.
Fairview "C" Bar Ranch, a Utah general partnership, DeWayne
Julander, and Joyce Julander, Intervenors.
Nos. 960144, 960201.
Supreme Court of Utah.
June 26, 1998.

Page 309

Jim J. Valcarce, Bethel, AK, pro se.

Richard C. Skeen, Robert W. Payne, Salt Lake City, for James Fitzgerald and intervenors.

Ralph J. Marsh, Salt Lake City, for Paul Valcarce.



Plaintiff Jim J. Valcarce and counterclaim defendant Paul Valcarce, Jim's father, appeal from a decision by the First District Court in Box Elder County that (i) ruled that defendant James B. Fitzgerald and intervenors Fairview "C" Bar Ranch and DeWayne and Joyce Julander ("the Fitzgerald parties") had a prescriptive right to take water across the Valcarces' property, (ii) awarded damages to the Fitzgerald parties for the Valcarces' interference with the water right and enjoined further interference by the Valcarces, and (iii) awarded the Fitzgerald parties attorney

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fees totaling approximately $42,000 pursuant to section 78-27-56 of the Utah Code. The Valcarces claim that the trial court made numerous errors during the trial, touching every aspect of its rulings. We affirm the trial court's ruling on the merits and damages but reverse the costs award and remand for a redetermination of the attorney fees award.

A somewhat detailed description of the facts leading up to this case and its complex litigation history is necessary to a proper understanding of the issues on appeal. Therefore, we begin with a recitation of the facts before turning to our analysis.

In December of 1971, DeWayne and Joyce Julander bought a parcel of land in Box Elder County, along with rights to water in the nearby Packer-Stauffer Spring, the parcel's only water source, and all other water rights used in connection with the land. They subsequently leased the property to James B. Fitzgerald, who used it for farming.

In November 1989, Joyce Stauffer conveyed to Jim J. Valcarce and his brother Paul C. Valcarce a parcel of land immediately adjacent to the Julander parcel. This conveyance included water rights in the Packer-Stauffer Spring. An irrigation canal carrying water from the Packer-Stauffer Spring runs from a head gate on the northeastern corner of the Valcarce property, across the eastern end of the property, onto the Julander property, and then onto a parcel of land owned by the Fairview "C" Bar Ranch. The irrigation canal has existed and has been used for the benefit of the Julander property and the "C" Bar Ranch property for at least forty years, and the users of these properties have coordinated their use of the canal and their interests in the spring water during this period.

Around 1990, Paul Valcarce damaged the head gate to the irrigation canal, allowing the water to flow out of the canal and into a natural wash running through the Valcarce property. After the water ran along the wash, it continued onto the western end of the Julander property and flooded the property's western two acres. This prevented Fitzgerald from growing crops on those two acres. Subsequently, Fitzgerald installed damming devices at the head gate to keep the water from spilling out of the head gate and to direct water into the irrigation canal. On numerous occasions in 1993 and 1994, Fitzgerald saw Paul Valcarce remove the damming devices, which consequently prevented the water from entering the canal. As a result, Fitzgerald could not water his fields on the Julander property. In May of 1993, Fitzgerald witnessed Paul Valcarce plowing dirt into the canal along the section of the canal crossing the Valcarce property. This destroyed the west bank of the canal and prevented the water from reaching the properties below. Fitzgerald hired a backhoe, removed the dirt from the canal, and repaired the bank.

To minimize the damage to his crops, in June of 1993, Fitzgerald placed a ten-inch PVC irrigation pipe across the eastern end of the Valcarce property, in the location of the ruined canal, to convey water to the property that he was leasing from the Julanders. The pipe ran along the Julander property and extended approximately sixty feet onto the Valcarce property. The pipe leaked and flooded the Valcarce property. On June 13, 1994, Jim Valcarce brought an action for trespass against Fitzgerald, claiming damages of up to $25,000. Valcarce subsequently amended his complaint to seek $50,000.

In June of 1994, Fitzgerald filed a counterclaim against Jim Valcarce to quiet title to the irrigation canal traversing the Valcarce property. Fitzgerald also claimed damages for Valcarce's intentional interference with the canal and the water delivery system of the Packer-Stauffer Spring. DeWayne and Joyce Julander and the "C" Bar Ranch moved to intervene and to add Paul Valcarce as a counterclaim defendant. The Fitzgerald parties moved to obtain a preliminary injunction against Jim Valcarce to prevent him from interfering with the irrigation canal. The trial court ordered intervention and joinder of the various parties. Paul C. Valcarce, Jim's brother, was later dismissed from the suit, and the "C" Bar Ranch dropped its claims against the Valcarces.

A preliminary injunction hearing was held in August 1994. Judge Ben H. Hadfield

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found the easement well established and issued a preliminary injunction in September of 1994. On September 28, 1994, the Fitzgerald parties moved for partial summary judgment to establish the existence of their prescriptive easement to the irrigation canal and to obtain a permanent injunction against interference with the canal. The Valcarces opposed the motion and filed their own motion for partial summary judgment. On December 23, 1994, Judge Hadfield granted the Fitzgerald parties partial summary judgment and determined that the easement existed.

On September 6, 1995, one month before the scheduled trial, and one year after the last pleading had been filed, the Valcarces filed an affidavit of bias or prejudice, seeking to remove Judge Hadfield from the case. The matter was fully briefed, and although Judge Gordon Low concluded that Judge Hadfield need not recuse himself, Judge Hadfield voluntarily turned the case over to Judge Low.

The remaining factual issues were tried before Judge Low in December of 1995. He issued a memorandum decision awarding damages to Fitzgerald of $1,496.44 for his 1993 crop losses and $3,839.75 for losses in 1994. The court awarded Julander damages of $1200 per year for 1992 through 1995, for a total of $4800. In January 1996, the trial court issued a permanent injunction, preventing the Valcarces from interfering with the water delivery system for the Packer-Stauffer Spring and requiring the parties to take their water according to a schedule of turns. The Fitzgerald parties moved for attorney fees under section 78-27-56 of the Code, asserting that the Valcarces' claims and defenses were maintained in bad faith and were wholly without merit. After full briefing on the matter, the court awarded the Fitzgerald parties their requested fees along with costs. On March 15, the court issued findings and conclusions on all issues, including attorney fees. The court then overruled all of the Valcarces' objections to the decision.

On appeal, the Valcarces attack the finding of a prescriptive easement, the damages award, and the attorney fees and costs awards on numerous grounds.

Regarding the trial court's finding of a prescriptive easement and its violation, the Valcarces claim a number of errors: (i) that the trial court erred in finding that a prescriptive easement had been established; (ii) that the trial court erred in finding that Fitzgerald's installation of a PVC pipe in the irrigation canal was reasonable and benefitted the Valcarce property; and (iii) that the trial court erred in allowing the Fitzgerald parties to claim damages incurred before the prescriptive easement was legally established. We address each claim in turn.

We begin with the issue of the existence of the prescriptive easement. The Valcarces contend that the Fitzgerald parties did not meet their burden of proving a prescriptive easement because they failed to prove the necessary element of "adverseness" of the use of the irrigation canal. They claim that the trial court's comments at the conclusion of the trial, that "[p]eople who share water need to get along as neighbors in sharing that water," show that the trial court did not make the necessary finding of adverseness. We disagree.

The finding that an easement exists is a conclusion of law. Such a finding is, however, the type of highly fact-dependent question, with numerous potential fact patterns, which accords the trial judge a broad measure of discretion when applying the correct legal standard to the given set of facts. We therefore overturn the finding of an easement only if we find that the trial judge's decision exceeded the broad discretion granted. See State v. Pena, 869 P.2d 932, 937 (Utah 1994).

A party claiming a prescriptive easement must prove that his use of another's land was open, continuous, and adverse under a claim of right for a period of twenty years. See Savage v. Nielsen, 114 Utah 22, 197 P.2d 117, 122 (1948). However, once a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse. See Zollinger v. Frank, 110 Utah 514, 175 P.2d 714, 716 (1946). To prevent the prescriptive easement from arising, the owner of the servient estate then has the burden of establishing

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that the use was initially permissive. See id.; Richins v. Struhs, 17 Utah 2d 356, 412 P.2d...

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