Wallis v. Luman

• Decision Date: 23 March 1981
• Docket Number: No. 5402,5402
• Parties: Nellie WALLIS and Dan Wallis, Appellants (Defendants), v. Abner LUMAN, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 759

625 P.2d 759

Nellie WALLIS and Dan Wallis, Appellants (Defendants), v. Abner LUMAN, Appellee (Plaintiff).

No. 5402.

Supreme Court of Wyoming.

March 23, 1981.

Hugh B. McFadden, Jr., of Corthell, King, McFadden, Nicholas & Prehoda, Laramie, signed the brief and appeared in oral argument on behalf of appellants.

Steve D. Noecker of Johnson, Noecker & Noecker, Rawlins, signed the brief and appeared in oral argument on behalf of appellee.

Before ROSE, C. J., RAPER, THOMAS and ROONEY, JJ., and JOHNSON, District Judge.

RAPER, Justice.

In June, 1976, the appellee-plaintiff initiated an action in the district court to preliminarily and perpetually enjoin the appellants-defendants (mother and son) from: 1. interfering with the flow of water in the Lord Ditch used by appellee for irrigation purposes; 2. interfering appellee's turning on and off the headgate of the Lord Ditch; 3. interfering with appellee's maintenance of the ditch; and, 4. for damages of various kinds. A preliminary injunction was issued after a lengthy hearing on July 6, 1976. ¹ Appellants' answer took issue with appellee's claims and counterclaimed for damages arising out of past allegedly negligent and improper maintenance and use of the Lord Ditch which traverses appellants' land. After all issues were drawn, a trial was had, in June, 1980, to the court sitting without a jury on the issue of a permanent injunction and damages. The trial judge, in specific terms, perpetually enjoined the appellants from any interference with the appellee's reasonable access to and use of the Lord Ditch and awarded damages to appellee of $6,484.00 including $3,000.00 punitive damages, all without prejudgment interest and costs in the sum of $187.20. Appellants' counterclaim was denied.

In the order in which we shall dispose of the questions, appellants present for review: 1. Does the existence of a water right carry an absolute right to transport that water through means of conveyance located on the lands of another? 2. Were damages properly awarded for seed purchased by plaintiff? 3. Does the evidence support the award of $1,750.00 to plaintiff for farming expenses for the year 1975? 4. In view of plaintiff's neglect or refusal to act to relieve defendants' distress and problems with overflow from the Lord Ditch during the winter-time, was the denial of defendants' counterclaim proper?

We will affirm.

I

In order to more effectively explain the full factual landscape of this litigation, the sketch which follows may be helpful. Other than as to land boundaries, it is not drawn to scale. The location and meandering of Pass Creek, the Lord Ditch, the Coyote Ditch and other features shown are reasonably representative, for practical purposes, of the exhibits and testimony appearing in the record.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

What follows in this narrative is for the most part gleaned from the trial on the matter of a permanent injunction and damages. The appellee acquired his land, 160 acres, in 1965 by warranty deed from the Ravenscroft Cattle Company, "together with all water and water rights, ditches and ditch rights thereunto belonging or in anywise appertaining thereto, together with all buildings and improvements thereon situate, subject, however, to exceptions and reservations of record." The water right claimed by the appellee is shown by the Proof of Appropriation of Water, filed June 15, 1891, from the records of State Engineer. It establishes a blanket water right for "300 acres (in the) N 2 SE 4 S 2 NE 4 N 2 SE 4 N 2 SW 4 S 2 NW 4 Sec. 34 Tw 20 N83 (sic)," diverted from Pass Creek through the Lord Ditch, the construction of which was started in April of 1885 and completed in April 1886 with the water being first used in the summer of 1885. The parties to the Proof of Appropriation, Archibald Campbell and James H. Hammond, agreed to an equal diversion of water from the ditch. The water right was regularly adjudicated. In the absence of more detailed title information ² the conclusion is present and it is acknowledged by appellants that appellee has title to the Campbell or Hammond land covered by the appropriation to the extent of his claim. This will be further developed in this opinion.

After acquisition of his Section 34 land in 1965, appellee, in order to irrigate some 128 acres of land, rearranged his farming system by leveling and ditching. He then commenced working on plans for cleaning out the Lord Ditch. He contracted machinery to do the work, contacted Dan Wallis, one of appellants, and explained what he was about to do, and with permission went ahead. After working about three days on the Lord Ditch, and within three quarters of a mile from completion, he was chased off the land by the appellants and eventually had to remove the machinery. Shortly thereafter, appellants constructed a dam across the Lord Ditch just below the south boundary of appellee's land which shut off the flow of water onto appellee's land the water flow is northerly from its diversion point on Pass Creek.

Thereafter appellants initiated water right abandonment proceedings against appellee but their differences, at that point, were settled, the abandonment proceedings dismissed, and they entered into an agreement:

"We the undersigned hereby agree to the following:

"In exchange for 160 acres known as The Weaver Place, described SW 1/4 of Sec. 28, T20N, R83W for the sum of $30 per acre plus cost of well drilled we agree to release to Abner Luman the right to irrigate approximately 130 acres of land out of the Lord Ditch described as E 1/2 of NW 1/4, W 1/2 of NE 1/4 of Sec. 34, T20N, R83W.

"Both parties agree to prorate the cost of 3 drops in the Lord Ditch.

"Abner Luman agrees to put in the flume to measure water in 130 acres of land described.

The three drops were eventually, in 1974, installed by appellee. Drops are devices to divert water out of a ditch. During the course of installing the drops, appellee removed the 1965 dam. This work was not done until 1974 because appellants had done nothing about it. Also in that interim period appellee did considerable work about 1,000 hours leveling and preparing his land for cultivation and was able to get limited water onto his land through the Coyote Ditch, which also diverts from Pass Creek. The water was received under a temporary arrangement, with permission of the local water commissioner, the details of which do not appear in the record and are not at issue. The measuring flume was installed shortly before the 1980 trial.

Appellants irrigated their land in 1975 through the Lord Ditch but again erected a dam to keep water off appellee's land. Further records from the State Engineer's office show that the appellants attempted to obtain a declaration of abandonment from the State Board of Control of 118.6 acres of the appellee's water right in Section 34, Township 20N, Range 83W, but failed in their proof. Findings of Fact, Conclusions of Law and Order of the Board of Control denying the petition of appellants was entered on September 12, 1978. The abandonment proceedings show that Pass Creek went dry sometime in 1975 and appellants prevented appellee from using water out of the Lord Ditch. This was confirmed by trial testimony. This injunction action was started in 1976 prior to disposition of the abandonment proceedings but not finally tried until June, 1980. The trial judge properly considered proceedings from the earlier hearing for a preliminary injunction held in 1976, as allowed by Rule 65(a)(2): "* * * any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. * * *" In passing, however, it is noted that there is much repetition in the 1980 trial of what transpired in the 1976 hearing.

The trial judge's letter opinion, filed and forming a part of the record, best describes the evidence developed during the course of the trial which led to his award of damages. Under Rule 52(a), W.R.C.P., it is provided that the trial court may make special findings of fact by written memorandum. An explanation of the reasons forming a basis for a trial judge's judgment is always most helpful to this court and is encouraged. While the judgment entered here makes ultimate findings, the memorandum has been most helpful in clarifying the case. The judge found:

"He (appellee) is certainly entitled to one-half reimbursement for drops installed in 1974, in the sum of $130.00. He engaged in the farming preparation of the land in 1975, computing his reasonable expenditures for machinery at $25.00 per hour for ten hours over 7 days, or a total of $1,750.00, for which he is entitled as damages. This activity was conducted in reliance of the availability of water of which he was deprived by the action of the defendants. The plaintiff further expended money for the purchase of seed (EX. # 6) in the sum of $504.00, which, though was acquired after any reasonable time would be allowed for growing, would have nevertheless been available for planting during the spring of 1976. This should be allowed.

"The actions of the defendants terminated the plaintiff's use of the water by damming the Lord Ditch on May 31, 1976. The water was restored to him on June 18, 1976, as a result of a temporary restraining order ³ issued that date. The plaintiff was effectively denied a crop for that year for his inability to have his water.

"The testimony shows that without fertilizer the Luman land will yield about one ton per acre. The plaintiff testified the yield would be one and one-half per acre, but he computed his costs of production to be without fertilizer. This was shown by the testimony of Randall Hardzog, the agricultural consultant. The evidence further shows that he could expect about one-fourth of a matured crop during the first season of...