Wilson v. Lucerne Canal and Power Co.

• Decision Date: 03 October 2003
• Docket Number: No. 02-153.,02-153.
• Parties: Thomas L. WILSON and Helen L. Wilson, Appellants (Defendants), v. LUCERNE CANAL AND POWER COMPANY, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

77 P.3d 412

2003 WY 126

Thomas L. WILSON and Helen L. Wilson, Appellants (Defendants), v. LUCERNE CANAL AND POWER COMPANY, Appellee (Plaintiff).

No. 02-153.

Supreme Court of Wyoming.

October 3, 2003.

Representing Appellant: Peter C. Nicolaysen, Casper, Wyoming.

Representing Appellee: Jerry M. Smith, Sigler & Smith Law Office, Torrington, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] Lucerne Canal and Power Company (Lucerne), an irrigation company, filed a complaint in 1988 against landowners Thomas L. Wilson and Helen Wilson for damages and injunctive relief. That filing was resolved in 1990 with the district court's issuance of a "Consent Decree and Judgment" which declared that Lucerne owned appurtenant easements across Wilsons' property for Lucerne's irrigation facilities and a related access road. Lucerne returned to court in May 2002 and obtained first a temporary and then a permanent restraining order, enjoining Wilsons' interference with Lucerne's easements. Wilsons appeal the permanent restraining order on several procedural grounds. Finding no fatal defects in the procedure, we affirm.

ISSUES

[¶ 2] The Wilsons present the issues as follows:

1. Whether the entry of a permanent injunction at the preliminary hearing is reversible error when the district court fails to enter an order of consolidation as required by W.R.C.P. 65(a)(2).

2. Whether Appellants had adequate notice of the consolidation and were thus afforded due process before the entry of permanent injunctive relief.

3. Whether the permanent injunction was properly entered despite a failure by Plaintiff/Appellee to plead a sufficient factual basis for permanent injunctive relief and despite a failure to make a written request for the entry of permanent injunctive relief.

4. Whether a permanent injunctive order that does not follow the form mandated by W.R.C.P. 65(d) must be vacated.

Lucerne reduces this to a single issue:

Whether the district court acted properly when it entered a permanent injunction against defendants/appellants.

FACTS

[¶ 3] We are limited in this appeal because of the lack of an evidentiary record. The original proceedings were resolved without trial by entry of a "Consent Decree and Judgment" on May 4, 1990. The permanent injunction in 2002 was issued following an evidentiary hearing; however, that hearing was not stenographically reported or electronically recorded, and the parties were unable to settle the record.¹ For purposes of this discussion, the facts are therefore gleaned primarily from the 1990 Consent Decree and Judgment, the findings contained in the 2002 orders, and the admissions of the parties in their appellate briefs.

[¶ 4] Lucerne is a non-profit irrigation company in Goshen County, Wyoming. It owns water rights in the North Platte River, with associated diversion and distribution facilities to deliver water to its stockholders. Part of these facilities is on Wilson-owned property adjacent to the river. The 1990 decree resolved that Lucerne owned an appurtenant easement across Wilsons' property for its facilities, as well as for a road to access, operate and maintain its facilities. The decree ordered:

3. That [Lucerne] has and shall continue to have a non-exclusive easement and right-of-way, which shall run with the land, for a road, upon, over and across [Wilson's property] ... for so long as [Lucerne] maintains or operates any of its facilities, ditches, canals, or other irrigation facilities on or adjacent to the lands now owned by [Wilsons], of such a nature as to provide unobstructed ingress, egress and access for such vehicles, machinery and equipment as is reasonably necessary for [Lucerne] to operate, regulate, maintain, inspect, repair, replace, remove, renovate and for all other reasonably necessary purposes for its irrigation system, facilities, equipment and appurtenances.

4. [Lucerne] has the right to maintain said road as is reasonably necessary to provide for such access and shall have unobstructed use of its easement. [Wilsons] shall not interfere with Lucerne's use of said Easements and rights-of-way.

[¶ 5] In May 2002, Lucerne returned to the district court. The exact chronology of the pleadings and orders is as follows:

May 22, 2002 Lucerne appeared before the district court with a Motion for Temporary Restraining Order and presented testimony through its secretary-treasurer. The district court issued the Temporary Restraining Order, restraining Wilsons "from in any manner interfering with [Lucerne's] right to operate regulate, maintain, inspect, repair, replace, remove or renovate its facilities including but not being limited to dams, channels, headgates and other water works which [Lucerne] uses in the supplying of water to its members." The Goshen County Sheriff served a copy of the TRO on Thomas Wilson. May 23, 2002 Lucerne filed its Motion for Temporary Restraining Order.² Lucerne filed a Notice of Hearing on Temporary Restraining Order and Whether A Permanent Injunction Should Be Granted, setting the hearing for May 31, 2002. Certificate of service indicates service on Wilsons by mail. May 31, 2002 Lucerne filed its Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt and for Damages, with Affidavit in Support. Hearing conducted pursuant to the May 23 notice; the district court announced intention to enter permanent injunction. June 5, 2002 The district court issued Permanent Injunction.

[¶ 6] Thomas Wilson appeared and testified at the hearing on May 31, 2002, as did Lucerne's secretary-treasurer. The permanent injunction issued by the district court reads in its entirety:

This matter coming before the Court upon Plaintiff's Motion for Temporary Restraining Order and the Court being fully advised finds that Plaintiff should have the use of that roadway over and across Defendants [sic] property and the right to operate, regulate, maintain, inspect, repair, replace, remove or renovate its facilities including but not being limited to dams, channels, headgates and other water works which Plaintiff uses in the supplying of water to it [sic] members and to use the hereinafter described property for the purpose of gaining access to the diversion dam, channel, canal and related facilities utilized by Plaintiff for diverting and transporting water from the North Platte Rive across Defendants [sic] property.

It is therefore ordered that Plaintiff, its agents, employees and contractors shall have the use of the following described property, to wit: [legal description], the use to be for the purpose of gaining access to the diversion dam, channel, canal and related facilities utilized by Plaintiff for diverting and transporting water from the North Platte River across Defendants' lands, and Defendants, their agents, employees and any other persons acting in their behalf be, and they are hereby permanently enjoined and restrained from interfering with Plaintiff, its agents, employees or contractors in the use of the lands of Defendants used as a roadway and for irrigation facilities henceforth and in perpetuity.

[¶ 7] On June 13, 2002, the Goshen County sheriff served Thomas Wilson with the Motion for Order to Show Cause with Affidavit, Permanent Injunction, and Order setting a hearing for November 27, 2002. Wilsons appealed the permanent injunction.

STANDARD OF REVIEW

[¶ 8] The trial proceedings in this case were not recorded or transcribed, and, as noted above, the appellants did not present a settlement of the record under W.R.A.P. 3.03. "We must, therefore, accept `the trial court's findings as being the only basis for deciding the issues which pertain to the evidence.'" Weiss v. Pedersen, 933 P.2d 495, 498 (Wyo.1997) (abrogated on other grounds, White v. Allen, 2003 WY 39, ¶¶ 10-11, 65 P.3d 395, ¶¶ 10-11 (Wyo.2003)

) (quoting Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d 769, 771 (Wyo. 1995)). "In the absence of anything to refute them, we will sustain the trial court's findings, and we assume that the evidence presented was sufficient to support those findings." Willowbrook Ranch, Inc.,

896 P.2d at 771-72.

[¶ 9] We also addressed injunctions in Weiss:

Although actions for injunctive relief are authorized by statute, Wyo. Stat. §§ 1-28-101 to-111 (1988 & Supp.1996), they are, by nature, requests for equitable relief which are not granted as a matter of right but are within the lower court's equitable discretion. Rialto Theatre, Inc. v. Commonwealth Theatres, Inc., 714 P.2d 328, 332 (Wyo.1986). Injunctions are issued when the harm is irreparable and no adequate remedy at law exists. Id.; Gregory v. Sanders, 635 P.2d 795, 801 (Wyo.1981). Injunctive relief is appropriate when an award of money damages cannot provide adequate compensation. Rialto Theatre, Inc., 714 P.2d at 332. An injury is irreparable "where it is of a `peculiar nature, so that compensation in money cannot atone for it.' Gause v. Perkins, 56 N.C. 177 (1857). Frink v. North Carolina Board of Transportation, 27 N.C.App. 207, 218 S.E.2d 713, 714 (1975)." Gregory, 635 P.2d at 801.

933 P.2d at 498-99.

[¶ 10] Also this year, in Polo Ranch Company v. City of Cheyenne, Board of Public Utilities, 2003 WY 15, ¶ 25, 61 P.3d 1255, ¶ 25 (Wyo.2003), we quoted with approval from Kincheloe v. Milatzo, 678 P.2d 855, 861 (Wyo.1984), regarding trial courts' injunction authority:

Preliminarily, it is to be remembered that, when courts are called upon to employ their injunctive authority, they must utilize this power with great caution. We have said:

"The extraordinary remedy of an injunction is a far-reaching force and must not be indulged in under hastily contrived conditions. It is a delicate judicial power and a court must proceed with caution and deliberation before exercising the remedy." Simpson v. Petroleum, Inc., Wyo., 548 P.2d 1, 3 (1976).

We went on to state:

Injunctions are extraordinary remedies and are not

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