Wheatland Irrigation Dist. v. Two Bar-Muleshoe Water Co.

Decision Date03 May 1974
Docket NumberNo. 4269,BAR-MULESHOE,4269
PartiesWHEATLAND IRRIGATION DISTRICT, Appellant (Defendant below), v. TwoWATER COMPANY et al., Appellees (Plaintiffs below).
CourtWyoming Supreme Court

William R. Jones and W. H. Vines, Jones, Jones, Vines & Hunkins, Wheatland, and Jack, R. Gage, Hanes, Carmichael Johnson, Gage & Speight, P. C., Cheyenne, for appellant.

Alfred M. Pence, Pence & Millett, Laramie, for appellee Two Bar Ranch Co.

John J. Rooney, Rooney & Horiskey, Cheyenne, for all other appellees.

Before PARKER, C. J., and McEWAN and McINTYRE, JJ.

Mr. Justice McEWAN delivered the opinion of the court.

Plaintiff-appellee, Two Bar-Muleshoe Water Company, commenced this action for specific performance of an agreement to furnish irrigation water. When this matter was previously before this court in 1967 at 431 P.2d 257, the appeal was dismissed as being premature. The trial court thereupon conducted additional hearings and entered judgment from which defendant-appellant appealed.

In 1900 the Swan Land and Cattle Company, Ltd., entered into a 'lease' in which Swan granted the Wyoming Development Company the right to use Swan lands as a reservoir site for the retention and storage of water to irrigate lands owned by Wyoming Development. The term of the lease was stated to be for such period of time as the demised lands should be used for such reservoir purposes. The lands so leased totaled 6,000 acres but, by agreement, in 1946 were reduced to some 3,000 acres, and constituted the site of what is now known as the Wheatland Irrigation District Reservoir No. 2. In consideration of the grant of the use of land, Wyoming Development granted Swan the right to use such quantity of water as could be carried and conveyed through two specified irrigation ditches of Swan throughout the irrigation season of each and every year, and, additionally, sufficient water to irrigate 300 acres of land to be selected by Swan.

The Two Bar-Muleshoe Water Company has succeeded to the rights and obligations of the Swan Land and Cattle Company, Ltd. The individual parties-plaintiff, William H. Beisner, Bernard R. McGuire, Arthur Burnett, Ellen Marie Burnett, Dora Burnett, and Two Bar Ranch Company, are the owners of all the stock of plaintiff corporation and are now the owners of certain lands which, at the time of the execution of the 'lease' in 1900, were owned by Swan. The Wheatland Irrigation District has succeeded to the rights and obligations of the Wyoming Development Company under the said 'lease.'

The two ditches specified in the 'lease' were identified as the Mule Shoe Ditch and the Two Bar Ditch. The size of the Mule Shoe Ditch was stated to be 7 feet in width at the waterline, carrying 1 1/2 feet of water in depth, and having a grade of 9 feet to each mile in length. The Two Bar Ditch was described as being 6 feet in width at the waterline, carrying 2 feet of water in depth, and having a fall or grade of 7 feet to each mile in length. The 'lease' agreement provided that the quantity of water to be furnished should be that which said ditches could carry with their stated dimensions.

When the matter was before this court previously we recognized that plaintiffs had the burden to establish the quantity of water the parties intended, and we suggested it should be expressed in terms consistent with current measurements, e. g., cubic feet her second, so that enforcement of any decree could be determinative rather than cause for added misunderstanding. All the dimensions necessary to determine the cross-sectional area were not given in the lease, and in order for plaintiffs to prevail it was therefore necessary for them to establish by proof the bottom width and side slope of the ditches at the time of the agreement.

Two Bar Ditch

We think counsel for the parties under the Two Bar Ditch put the issue very succinctly when, upon direct examination of an engineer expert witness, he asked:

'Do you understand the thing we are trying to determine here is cubic feet per second carrying capacity of the Two Bar ditch as it was originally constructed? Do you understand that to be the problem we are trying to resolve?'

The witness, John Schrunk, was a Consulting Engineer with a degree in Engineering and a Master's Degree in Agricultural Engineering. Since 1940 he had been engaged in some phase of agricultural engineering. His varied studies of irrigation works throughout the world were helpful to him in visualizing the design and pattern of construction of ditches in the 1900s. He testified that in his opinion the ditch in 1900 had a bottom width of 4 feet, which, when equated with the 6-foot width at the waterline and a water depth of 2 feet, as set forth in the lease, would give a 1/2 to 1 side slope. From these figures he was able to determine the cross-sectional area. Upon applying his estimated coefficient of friction and the 7-foot-to-the-mile fall or grade to the cross-sectional area he voiced his opinion that the Two Bar Ditch in 1900 had a carrying capacity of 26.8 c. f. s. There was therefore sufficient credible evidence to support the trial court's finding that the carrying capacity of the Two Bar Ditch at the time of the lease was 26 c. f. s.

Mule Shoe Ditch

The trial court determined that the carrying capacity of the Mule Shoe Ditch in 1900 was 25 c. f. s. This was apparently based upon testimony that while the average carrying capacity of the ditch was 27.5 c. f. s., there was a pipe in the ditch which restricted its capacity to 25 c. f. s. While there was no testimony or evidence as to the size of this ditch in 1900, the trial court concluded that there had been no material change since 1900 in the size or carrying capacity of the Mule Shoe Ditch, and we think there was sufficient evidence to support the conclusion. Therefore, if there was sufficient showing as to the present carrying capacity of the Mule Shoe Ditch, the carrying capacity of the ditch in 1900 would have been established. Plaintiffs' witness Kennedy, a Civil Engineer and Land Surveyor, testified that he '* * * tried to find what (he) thought would be the average cross section of the ditch,' and by applying fall and friction factor he determined the capacity to be 27.5 c. f. s. However, upon cross and further direct examination he stated the 27.5 c. f. s. figure was an average carrying capacity of the ditch and in places which he examined there was a tremendous variance in the capacity, e. g., as much as 10 second feet. It is elementary that a ditch will carry only that quantity of water that will pass the point of least capacity. Therefore, the most that this testimony would support would be the conclusion that the Mule Shoe Ditch in its present size will carry 17.5 c. f. s. of water (27 minus 10 = 17.5), ergo, the capacity of the ditch in 1900 was 17.5 c. f. s. The findings of fact, conclusions of law, and judgment must therefore be modified so that the capacity of the Mule Shoe Ditch at the time of the lease in 1900 is determined to be 17.5 c. f. s., which was the quantity of water the parties intended at the time of the lease.

Irrigation Season

The 'lease' provided that plaintiffs were to receive water '* * * throughout the irrigation season of each and every year * * *.' The trial court found the term 'irrigation season' meant that period of time during each growing season in which water was needed for beneficial use of the type of crops grown by the individual plaint...

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2 cases
  • Bowen v. Smith, 91-152
    • United States
    • United States State Supreme Court of Wyoming
    • August 28, 1992
    ...417, 154 P.2d 318 (1944); Wheatland Irr. Dist. v. Two Bar-Muleshoe Water Co., 431 P.2d 257 (Wyo.1967); Wheatland Irrigation Dist. v. Two Bar-Muleshoe Water Co., 521 P.2d 1334 (Wyo.1974); State ex rel. Squaw Mountain Cattle Co. v. Wheatland Irr. Dist., 728 P.2d 172 (Wyo.1986); and, finally, ......
  • State ex rel. Squaw Mountain Cattle Co. v. Wheatland Irr. Dist., 85-219
    • United States
    • United States State Supreme Court of Wyoming
    • November 17, 1986
    ...Ditch was only 17.5 c.f.s., and the total acreage to be irrigated was identified as 1,597 acres. Wheatland Irrigation District v. Two Bar-Muleshoe Water Company, Wyo., 521 P.2d 1334 (1974). This brings us to the present controversy. It appears that in 1980, 1981 and 1982, Wheatland Irrigati......

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