Summary 2010 WY 53

Summary of Decision issued April 27, 2010

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

Case Name: Kerbs v. Walck, Jr.

Citation: 2010 WY 53

Docket Number: S-09-0121

Appeal from the District Court of Carbon County, the Honorable Norman E. Young, Judge.

Representing Appellants Kerbs, and Kerbs Four Bar Ranch Partnership (and the partners in Kerbs Ranch): Daniel B. Frank, Frank Law Office, PC, Cheyenne, Wyoming.

Representing Appellee Eugene Walck, Jr.: William M. MacPherson and Brandon W. Snyder, MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Facts/Discussion: After a bench trial, the district court entered judgment in favor of Walck ruling that the Kerbs Ranch had wrongfully interfered with Walck’s water rights. The Kerbs Ranch is located in Carbon County, a few miles west of the town of Saratoga. Walck’s ranch is west of the Kerbs Ranch. Jack Creek, a tributary of the North Platte River, winds its way in a northeasterly direction through Walck’s ranch, then through the Kerbs Ranch. Both ranches use irrigation water from Jack Creek to produce hay. In the spring of 2002, Wyoming regulated the North Platte River in response to the Federal Bureau of Reclamation’s call to fulfill its water rights for Pathfinder Reservoir. This “Pathfinder Call” allowed pre-1904 water rights to be fulfilled while post-1904 water rights generally could not. Both Walck and the Kerbs Ranch had some pre-1904 water rights which were fulfilled.
A preliminary issue raised by Kerbs Ranch was that the district court failed to specify whether Walck’s claims sounded in negligence or an intentional tort such as conversion. The Court stated that the record left no doubt that the district court and the Kerbs Ranch fully understood the nature of Walck’s claims.

North of Jack Creek: On the north side of Jack Creek there are two irrigation ditches at issue in this appeal. The headgate of the Forney No. 2 Ditch is upstream and the headgate of the D. McPhail Ditch is downstream. Water in the McPhail Ditch is split between Walck and Kerbs. The Forney No. 2 supplies water only to the Kerbs. Kerbs had not been using the McPhail Ditch for fifty years. It sent its water from the McPhail and the Forney through the Forney No. 2 Ditch. Kerbs never applied for permission to change its point of diversion as required by statute. Jack Creek was subject to the Pathfinder Call but Mr. Kerbs did not adjust the headgates to the pre-1904 levels. Later he noticed the water level was down as a result of action taken by the water commissioner. Kerbs installed a culvert and dam near where Forney No. 2 crosses over the McPhail Ditch. By taking water out of the McPhail Ditch, Kerbs effectively prevented Walck from irrigating 23 acres of his land. The district court found that Walck did not get the water he was entitled to receive.
South of Jack Creek: The water commissioner also adjusted the headgates of the Forney No. 2 Ditch Co. Ditch which is located on the south side of Jack Creek with a headgate downstream from the Forney No. 2 Ditch and upstream of the McPhail Ditch. Notices were placed along with chains and locks. Later, the headgates on the Forney Ditch Co. Ditch and the McPhail Ditch had been shut off letting no water into the two ditches shared by Walck and Kerbs Ranch, but allowing water to flow downstream to another irrigation ditch that served only the Kerbs Ranch. The district court found that both parties’ rights were of equal priority. It was unlawful for Kerbs Ranch to get ample water while Walck was getting a minimal amount. The shortfall must be shared equally.
Damages: Kerbs Ranch’s only objection to the damages calculations was that the district court used the county-wide average while Walck testified that actual production on his ranch was consistently below the county-wide average. The district court did not use the county-wide average hay production figure of 1.4 tons per acre. Part of Walck’s damages related to reduced pasturage, not reduced hay production. Mr. Walck did not appeal the district court’s damages calculations. The amount of damages is within the sound discretion of the jury or trial judge. The damages were not excessive or unreasonable as to indicate passion or prejudice.

Conclusion: Kerbs was legally required to leave the entire flow of the McPhail Ditch in that ditch. Kerbs violated that regardless of how little or how much was left to trickle down to Walck. The district court’s finding that Kerbs was not entitled to divert did not elevate Walck’s water rights over those of the Kerbs Ranch. The shortfall on the irrigation located south of Jack Creek must be shared equally by Walck and Kerbs Ranch since each party’s rights were of equal priority. The Kerbs Ranch failed to show that the district court’s damages calculations were clearly erroneous.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/26td95x .

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