Summary 2009 WY 80

Summary of Decision issued June 18, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Velasquez v. Chamberlain

Citation: 2009 WY 80

Docket Number: S-08-0043; S-08-0044

Appeal from the District Court of Converse County, the Honorable John C. Brooks, Judge.

Representing Velasquez: Patrick Dixon of Casper, Wyoming.

Representing Chamberlain: Heather A. Jacobson of Jacobson Law Office, LLC, Douglas, Wyoming.

Facts/Discussion: These two consolidated appeals arise from a dispute between neighboring landowners. The Chamberlains own certain water rights. Traditionally, the water had been carried to their property through an established ditch running through property currently owned by the Velasquezes. Prior to their purchase of the property, the ditch failed and the Chamberlains replaced it with a pipeline, running on a different course from the ditch. When the Velasquezes bought the property, they claimed the Chamberlains had not received proper permission to install or maintain the pipeline and proceeded to effectively destroy the pipeline as it ran through their property. The resulting legal action included multiple claims for damages on both sides and a petition for a restraining order against the Velasquezes allowing the Chamberlains to go on their property and fix the pipeline.
The district court determined the Chamberlains legally had the unencumbered right to convey their water through the pipeline. In appeal No. S-08-0043, the Velasquezes appeal the district court’s order allowing the Chamberlains to maintain and use the pipeline as it crosses their property, as well as the district court’s refusal to grant damages to them. In appeal No. S-08-0044, the Chamberlains appeal the amount they were granted in damages, alleging the evidence supported a larger amount.
Appeal No. S-08-0043
Statutory Compliance: The Velasquezes argued that the Chamberlains violated § 41-3-114 when they changed the flow of water from the established ditch to a pipeline. The Court declined to address the argument because based upon a review of the record it was unclear whether the issue was raised in the trial below.
Validity of the Contract: The Velasquezes questioned whether Dave Lozier (previous owner of the land the Velasquez’s now own) was authorized to enter into the Agreement on behalf of Guy Lozier (brother of Dave who purchased the property from Dave when he could not meet his obligations under the contract for deed.) The district court determined that Dave had apparent authority to enter into the contract on behalf of Guy. The evidence included that there was no change in the way Dave managed the property after the purchase by Guy. The Court agreed it was reasonable for the Chamberlains to accept that Dave had authority to enter into the Agreement based on the evidence that Dave managed the property without any input from Guy. In addition, the district court found that Guy ratified the Agreement by his silence in the face of knowledge of the pipeline. The evidence supported a reasonable inference that Guy was aware of the pipeline as evidenced by a remaining scar on the ground from the excavation work. It could also be reasonably inferred that, by not objecting in any manner over a period of almost six months, Guy ratified the Agreement. The Velasquezes argue the Agreement does not constitute an easement, license or covenant running with the land. The Court stated the focus should be on the subject of the Agreement – the buried water pipeline. The pipeline replaced part of the Powell Number One Ditch which transported water to the Chamberlains’ property. Water rights encompass the right to convey water. As the Court stated in Bard Ranch, Inc.: the ditch follows the right. Consequently, the ownership interest of the Chamberlains remained unaltered regardless of who owned the property through which the pipeline runs.
Damages: Because the Court determined that the pipeline was legally in place, no trespass occurred by the Chamberlains when they repaired the pipeline. Another allegation was the use of the Vleasquezes’ feedlot by the Chamberlains. The Court agreed with the district court that the amount of damages caused by his use was not adequately proven. There was an allegation of trespass which concerned water flooding part of a pasture. According to testimony, the pasture had only been used for grazing in the past and not for hay production. The damage assessment reflected the value of a total loss of hay on pasture which bore no relation to any loss of use of the property. The request for nominal damages to deter future similar conduct was not addressed by the Court.
Appeal No. S-08-0044: An uncontradicted invoice in the amount of $11,540 for repair to the pipeline from damage caused by the Velasquezes supported the award for the full amount of the invoice.

Conclusion: The Agreement was a valid contract between neighboring landowners to alter the course and method of water flowing from the LaPrele Creek to the Chamberlain property. The Chamberlains maintained the same ownership interest in the buried water pipeline as they had in the Powell Number One Ditch. Further, the damages claimed by the Velasquezes were not supported by adequate evidence. The district court’s order was affirmed. In appeal S-08-0044, the Chamberlains introduced adequate evidence to support their claim for damages in the amount of $11,540. The award for damages was reversed and remanded.

Affirmed in part, reversed and remanded in part.

J. Golden delivered the decision.

Link: http://tinyurl.com/mgx6dh .

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