Wilson v. Tyrrell

• Decision Date: 19 January 2011
• Docket Number: Nos. S–10–0054,S–10–0055,S–10–0119.,s. S–10–0054
• Citation: 246 P.3d 265,2011 WY 7
• Parties: Thomas L. WILSON and Helen L. Wilson, Husband and Wife, Appellants (Petitioners),v.Patrick T. TYRRELL, in His Capacity as State Engineer for the State of Wyoming, Appellee (Respondent),andLucerne Canal and Power Company, Appellee (Intervenor).Thomas L. Wilson and Helen L. Wilson, Appellants (Plaintiffs),v.Lucerne Canal and Power Company, Appellee (Defendant).
• Court: Wyoming Supreme Court

246 P.3d 265

2011 WY 7

Thomas L. WILSON and Helen L. Wilson, Husband and Wife, Appellants (Petitioners),

v.Patrick T. TYRRELL, in His Capacity as State Engineer for the State of Wyoming, Appellee (Respondent),andLucerne Canal and Power Company, Appellee (Intervenor).Thomas L. Wilson and Helen L. Wilson, Appellants (Plaintiffs),

v.Lucerne Canal and Power Company, Appellee (Defendant).

Nos. S–10–0054

S–10–0055

S–10–0119.

Supreme Court of Wyoming.

Jan. 19, 2011.

Representing Appellants: Frank J. Jones of Wheatland, Wyoming.Representing Appellee Patrick T. Tyrrell, in his capacity as Wyoming State Engineer, in Case No. S–10–0054: Bruce A. Salzburg, Wyoming Attorney General; Jay A. Jerde, Deputy Attorney General; Peter K. Michael, Senior Assistant Attorney General; S. Jane Caton, Senior Assistant Attorney General. Argument by Ms. Caton.Representing Appellee Lucerne Canal and Power Company: Harriet M. Hageman and Kara Brighton of Hageman & Brighton, P.C. Argument by Ms. Hageman.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.VOIGT, Justice.

[¶ 1] The three appeals consolidated for decision in this opinion all arise out of a decades-old dispute between Thomas L. Wilson and Helen L. Wilson (the Wilsons) and Lucerne Canal and Power Company (Lucerne). The casus belli is Lucerne's use of an old river channel to carry irrigation water across land owned by the Wilsons. This is the third round of the dispute that has reached this Court. We affirm in part, reverse in part, and remand to the district court for entry of an order consistent herewith.

BACKGROUND

[¶ 2] Before we set out the issues presently facing the Court, we will briefly present the factual context in which those issues have arisen. For more detailed recitations of the facts, see Wilson v. Lucerne Canal and Power Company, 2003 WY 126, 77 P.3d 412 (Wyo.2003) ( Wilson I ) and Wilson v. Lucerne Canal and Power Company, 2007 WY 10, 150 P.3d 653 (Wyo.2007) ( Wilson II ). A sketch map attached as an exhibit to the opinion in Wilson II shows the area in controversy.

[¶ 3] In 1893, Lucerne obtained and perfected a right to appropriate water from the North Platte River, with the point of diversion located on unpatented lands in Goshen County. The river was divided into two channels in the area, with the headgate to Lucerne's canal located at its adjudicated point of diversion on the eastern channel. In 1913, because of insufficient flow down that channel, Lucerne constructed a diversion dam upstream on the main channel, to divert water into the eastern channel. That diversion dam contains no headgate or other “check structure” that can measure or control the amount of water diverted into the eastern channel. Edwin R. Hisey obtained the patent to the land in 1908. The Wilsons purchased the property in 1964. Wilson II, 2007 WY 10, ¶¶ 4–6, 150 P.3d at 656.

[¶ 4] Squabbles arose over the years between the Wilsons and Lucerne, in which the Wilsons accused Lucerne of trespassing upon and damaging their property, and in which Lucerne accused the Wilsons of interfering with Lucerne's right to use its appropriated water. In 1988, Lucerne filed suit against the Wilsons, seeking damages and injunctive relief due to the Wilsons' alleged blocking of access to Lucerne's irrigation facilities. Wilson I, 2003 WY 126, ¶ 1, 77 P.3d at 413–14. This lawsuit was resolved in 1990 via a Consent Decree and Judgment that recognized Lucerne's easement and right-of-way across the Wilsons' land for the purpose of access to, and maintenance of, its irrigation facilities. Id. at ¶ 4, at 414; Wilson II, 2007 WY 10, ¶ 13, 150 P.3d at 658.

[¶ 5] Lucerne sought district court intervention again in 2002, this time alleging that the Wilsons had constructed an earthen berm or dike in the eastern channel that interfered with the flow of water downstream to Lucerne's headgate. Wilson I, 2003 WY 126, ¶ 16, 77 P.3d at 418; Wilson II, 2007 WY 10, ¶ 16, 150 P.3d at 659–60. The district court entered a permanent injunction prohibiting the Wilsons from interfering with Lucerne's use of its access easement and its irrigation facilities. We affirmed that decision in Wilson I, 2003 WY 126, ¶ 21, 77 P.3d at 419.

[¶ 6] Taking their turn as plaintiffs, the Wilsons filed suit in 2004, seeking to quiet title against Lucerne to the land underlying the old eastern channel and the land between that channel and the main western channel. They also sought trespass damages, alleging that Lucerne was transporting excessive amounts of water down the eastern channel. Wilson II, 2007 WY 10, ¶ 19, 150 P.3d at 660. After a bench trial, the district court held that the eastern channel remained a river channel, that Lucerne's use of the channel and its irrigation facilities had not changed since the 1990 settlement, and that the Wilsons' claims were barred by the doctrines of judicial estoppel, collateral estoppel, and res judicata. Id. at ¶¶ 20, 21, at 661–62.

[¶ 7] In Wilson II, 2007 WY 10, ¶¶ 24–28, 150 P.3d at 662–64, we affirmed the district court's application of estoppel and res judicata, insofar as those doctrines prohibited the Wilsons from contesting Lucerne's right to access and use its facilities, including the eastern channel. We disagreed with the district court, however, on the separate quiet title issue, which we did not find to be barred by the earlier lawsuits or settlement. We concluded that reliction had occurred, that the Wilsons' property line was now the thread of the western river channel, and we remanded to the district court for entry of an order quieting title to the property in the Wilsons, subject to Lucerne's easements. Id. at ¶ 35, at 667. Of special significance in the current controversy is our specific holding that the district court had erred in concluding that the eastern channel remained part of the river. Id. at ¶ 32, at 666.

Docket No. S–10–0054

[¶ 8] In the first of the three consolidated cases now under consideration, Docket No. S–10–0054, the Wilsons are the appellants, the State Engineer is an appellee, and Lucerne, who intervened below, is also an appellee. The case began on April 11, 2007, when the Wilsons' attorney sent a letter to the superintendent of Water Division No. 1, asking the superintendent to require Lucerne to construct a headgate at its diversion dam on the North Platte River.¹ Relying upon this Court's holding in Wilson II that the eastern channel was no longer part of the river, the Wilsons cited Wyo. Stat. Ann. § 41–3–613 (LexisNexis 2009) for the proposition that “Lucerne has no choice but to construct a substantial headgate” at the diversion dam. Section 41–3–613 provides in pertinent part as follows:

The owner or owners of any ditch or canal shall maintain, to the satisfaction of the division superintendent of the division in which the irrigation works are located, a substantial headgate at the point where the water is diverted, which shall be of such construction that it can be locked and kept closed by the water commissioner; and such owners shall construct and maintain, when required by the division superintendent, flumes or other measuring devices at such points along such ditch as may be necessary for the purpose of assisting the water commissioner in determining the amount of water that is to be diverted into said ditch from the stream, or taken from it by the various users....

[¶ 9] In a letter dated April 20, 2007, the division superintendent denied the Wilsons' request. His reasoning may be summarized as follows: (1) this Court's opinion in Wilson II did not change his belief that Lucerne's “appropriation is being diverted at a properly recorded point of diversion”; (2) the continued use of the upper diversion dam was supported by this Court's holding that title to the property at issue was quieted in the Wilsons, subject to Lucerne's continued right to transport water from the diversion dam to its headgate; and (3) the district court had determined that the eastern channel continues to be a river channel, and the “Supreme Court did not reverse this finding in its opinion[.]”

[¶ 10] On May 9, 2007, the Wilsons appealed the decision of the division superintendent to the State Engineer. In that appeal, the Wilsons presented three inter-related arguments: (1) Lucerne's adjudicated point of diversion no longer was on the river; (2) the point at which Lucerne diverts water—the diversion dam—is not its adjudicated point of diversion; and (3) Wyo. Stat. Ann. § 41–3–613 requires Lucerne to maintain a headgate at the diversion dam.

[¶ 11] The State Engineer confirmed the decision of the division superintendent in a letter to the Wilsons' attorney dated May 23, 2007. Citing Wilson II, the State Engineer concluded that this Court had approved Lucerne's continued use of the diversion dam and the eastern channel to deliver water to its properly recorded point of diversion, where a lockable control structure was located. Specifically relevant to the issues we now consider, the State Engineer “[did] not find in the Supreme Court decision any direction that the diversion (including the [eastern] channel) is to be used in any fashion different from its historic operation.”

[¶ 12] On June 22, 2007, the Wilsons filed in the district court a notice of appeal of the decision of the State Engineer. After considerable procedural wrangling, the district court allowed the Wilsons to amend that pleading, and an Amended Petition for Review was filed on May 23, 2008. Generally, the Wilsons alleged that the decisions of the division superintendent and the State Engineer were contrary to law, were unsupported by the evidence, and were arbitrary and capricious.

[¶ 13] The district court issued its Order Affirming State Engineer's Action on November 24, 2009. Preliminarily, the district court concluded that the Wilsons had failed to prove that Lucerne's historic two-part diversion was contrary to law, or that the division superintendent and State Engineer had...