Wheatland Irr. Dist. v. Laramie Rivers Co.

• Decision Date: 18 February 1983
• Docket Number: No. 5780,5780
• Citation: 659 P.2d 561
• Parties: WHEATLAND IRRIGATION DISTRICT, Appellant (Petitioner), v. LARAMIE RIVERS COMPANY and The University of Wyoming, and the Wyoming State Board of Control, Appellees (Respondents).
• Court: Wyoming Supreme Court

Page 561

659 P.2d 561

WHEATLAND IRRIGATION DISTRICT, Appellant (Petitioner), v. LARAMIE RIVERS COMPANY and The University of Wyoming, and the Wyoming State Board of Control, Appellees (Respondents).

No. 5780.

Supreme Court of Wyoming.

Feb. 18, 1983.

William R. Jones and John P. McBride of Jones, Jones, Vines & Hunkins, Wheatland, for appellant.

Horace M. MacMillan, II of Pence & MacMillan, Laramie, for appellee Laramie Rivers Co.

George A. Gould, Laramie, for appellee The University of Wyoming.

Steven F. Freudenthal, Atty. Gen., Walter Perry, III, Sr. Asst. Atty. Gen., and Lawrence J. Wolfe, Asst. Atty. Gen., for appellee Wyoming State Bd. of Control.

Before ROONEY, C.J., ^* and RAPER, THOMAS, ROSE ^** and BROWN, JJ.

ROSE, Justice.

The appellant, Wheatland Irrigation District (sometimes referred to as Wheatland), filed a petition with the Board of Control seeking abandonment of 41,100 of the 68,500 acre feet of water appropriated under two reservoir permits issued to the appellee Laramie Rivers Company (sometimes referred to as Laramie Rivers) for the Lake Hattie reservoir near Laramie, Wyoming. The sources of supply for Lake Hattie are "to use the water therefrom for the beneficial purposes for which it was appropriated * * * during any five (5) successive years * * *." § 41-3-401(a), W.S.1977, supra n. 1.

the Laramie and the Little Laramie Rivers and, if the petition were to be granted and the Board of Control's order upheld by the courts, appellee Laramie Rivers would be left with a 27,400 acre-foot capacity in the reservoir. The appellant, owner of Wheatland Reservoir No. 3 which receives water from the same water sources as does Lake Hattie, holds a permit junior to those of the appellee Laramie Rivers. It is the appellant's theory that the 41,100 acre feet should be declared abandoned by reason of the directives contained in § 41-3-401(a), W.S.1977, ¹ on the ground that the appellee had failed

As indicated supra n. 1, this section of the statute goes on to provide that if the holder of the appropriation has not used the water for this period of time,

" * * * he is considered as having abandoned the water right and shall forfeit all water rights and privileges appurtenant thereto."

The Board of Control denied the petition for the reason that substantial work on the reservoir had been undertaken prior to its filing. In p 7 of its findings of fact the Board said:

"THAT the petition in this case was filed on May 23, 1980 with the Board of Control, and the contestee, Laramie Rivers Company, was advised of the filing of the petition on June 6, 1980. The contestee argues that it had performed a substantial amount of work to repair the dam by the time the petition was filed and that therefore, the abandonment was not timely filed and should be denied. The Board is persuaded by the facts presented by the contestee and finds that substantial work had been undertaken to repair the dam as set forth in the following paragraphs." ²

In p 6 of the conclusions of law section of its order, the Board held:

"THAT the Board concludes that the abandonment was not promptly asserted in this case and therefore, it must be denied. The contestee, Laramie Rivers Company, had undertaken substantial work to repair and renovate the dam in order that it might store water to its original adjudicated capacity. This renovation work was under way at the time the petition was filed and served upon contestee and substantial progress had been made. The Board concludes that to grant the abandonment would be to deny the contestee the fruits of its efforts to repair the dam and that the forfeiture was not promptly asserted and therefore, must be denied."

The grounds for the Board's refusal of the petition can be capsulized as follows:

The contestee had undertaken substantial work to repair the dam by the time the petition was filed and therefore the filing was not timely.

It is to be noted that the Board did not consider whether the appropriator had or had not failed to use the water for five successive years as contemplated by § 41-3-401(a), ³ and therefore this issue has not been resolved by the Board of Control or presented to the district court for decision. The question may therefore not be considered here. Positions and issues not presented to the district court will not be considered by the Supreme Court. Wyoming Bank and Trust Company of Buffalo v. Bonham, Wyo., 606 P.2d 296 (1980).

Wheatland Irrigation District filed a petition for review with the district court and it is from the court's order in favor of Laramie Rivers that Wheatland lodges its appeal here.

The issues which Wheatland assigns for our consideration are these:

"1. DOES UNDERTAKING SUBSTANTIAL WORK TO REPAIR A DAM, PRIOR TO THE FILING OF THE PETITION FOR PARTIAL ABANDONMENT, RENDER THE FILING UNTIMELY?

"2. IS THE UNDERTAKING OF WORK TO REPAIR A DAM AN ACT WHICH LEGALLY PRECLUDES ABANDONMENT, OR IS THE USE OF STORED WATER FOR BENEFICIAL PURPOSES, PRIOR TO FILING A PETITION FOR ABANDONMENT, THE ACT WHICH LEGALLY PRECLUDES ABANDONMENT?

"3. IF THE FILING OF PETITION FOR PARTIAL ABANDONMENT IS FOUND TO BE UNTIMELY, DOES THAT FACT ALONE PRECLUDE THE GRANTING OF A PARTIAL ABANDONMENT?

"4. IS THE BOARD OF CONTROL ORDER CORRECT WHEN FOUNDED UPON THE CONCLUSION THAT TO GRANT THE PETITION FOR ABANDONMENT, THE LARAMIE RIVER COMPANY WOULD BE DENIED 'THE FRUITS OF ITS EFFORTS TO REPAIR THE DAM,' (APPROXIMATELY $142,000.00) WHEN THE RESULT OF THE ORDER BASED UPON SUCH CONCLUSION DENIES THE WHEATLAND IRRIGATION DISTRICT THE FRUITS OF ITS EFFORTS EXPENDED ON RESERVOIR NO. 3 (APPROXIMATELY $656,000.00)?"

Condensed, the only question for resolution by this court is:

Does § 41-3-401, W.S.1977 authorize the Board of Control to refuse to declare an abandonment for the reason that the petition for abandonment was filed after repair work was commenced but prior to the application of the questioned Lake Hattie Reservoir waters to a beneficial use?

The record in this case shows that a restriction to 27,400 feet of storage has been in effect at Lake Hattie since April 5, 1972 when it was imposed by the State Engineer because of infirmities in the dam. In March of 1980, the state of Wyoming approved a loan to Laramie Rivers so that the dam could be repaired, after which, on May 16, 1980, Laramie Rivers publicly announced its intentions with respect to dam repair and future water storage plans. This was the first Wheatland knew of Laramie Rivers' loan approval and dam improvement plans. One week later, on May 23, the abandonment petition was filed. Two days before the filing of the petition, soil compaction tests had been made and the construction company hired for the repair work was placing fill and proceeding with the construction. By July 7, 1980 the work was substantially complete.

According to the record that is available to this court, the Laramie Rivers Company had not stored water in Lake Hattie, and had not beneficially used any water therefrom in excess of the 27,400 acre-foot limitation from April, 1972 until the time the petition for abandonment was filed on May 23, 1980. In fact, no water was stored or beneficially used above the limitation up to the time of hearing before the Board of Control on February 17, 18 and 19, 1981, nor had any water been stored or used above the limitation when the parties were before the district court on July 1, 1982.

From what we have said we must assume that the water in question here was not in the reservoir at any time which is relevant to this appeal in consequence of which there was no such application of this water to beneficial use and place of use as is contemplated by the appellee's appropriation certificate.

These things being so, we must look to the statute to see whether or not the Board of Control was possessed of the authority to deny Wheatland's petition for partial abandonment on the ground that, at the time of its filing, "substantial work had been undertaken to repair the dam," (p 7 of Board's findings of fact) and therefore the petition was not "promptly asserted" (p 6 of conclusions of law).

THE LAW

Statutory Construction

We summarized the rules of statutory construction by which this court lives when we said in Wyoming State Department of Education v. Barber, Wyo., 649 P.2d 681 (1982):

" * * * First off, it is a well-established principle that in construing a legislative enactment we must, if possible, ascertain the intent of the legislature from the wording of the statute. We are not, however, permitted to assign meaning to a statute which would have the effect of nullifying its operation. In the Matter of the Injury to Hasser, Wyo., 647 P.2d 66 (1982); McGuire v. McGuire, Wyo., 608 P.2d 1278, 1285 (1980). Also, words utilized in the statute are to be given their plain and ordinary meaning unless otherwise indicated. Board of County Commissioners of the County of Campbell v. Ridenour, Wyo., 623 P.2d 1174, 1184 (1981); Jahn v. Burns, Wyo., 593 P.2d 828, 830 (1979). Similarly, it is well settled that general principles of statutory construction calculated to assist the court in ascertaining legislative intent are not resorted to unless it can be said that the statute is ambiguous. Sanches v. Sanches, Wyo., 626 P.2d 61, 62 (1981); Matter of North Laramie Land Co., Wyo., 605 P.2d 367, 373 (1980)."

We subscribe to these rules in analyzing § 41-3-401(a) as it is applicable to the facts of this case. Particularly we are bound here by the rule of Sanches v. Sanches, Wyo., 626 P.2d 61 (1981) and Matter of North Laramie Land Co., Wyo., 605 P.2d 367 (1980), which holds that we will not resort to statutory construction aids where there is no ambiguity in the statute under consideration.

There are no innuendos or double entendres to be found in § 41-3-401(a). The intention of the legislature is there expressed in plain English, leaving no room What does the statute say? It says that where the holder of an...