Summary 2011 WY 7

Summary of Decision January 19, 2011

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Case Name: Wilson v. Tyrrell

Citation: 2011 WY 7

Docket Numbers: S-10-0054, S-10-0055, S-10-0119

URL: http://tinyurl.com/6kxustf

Appeal from the District Court of Goshen County, The Honorable Keith G. Kautz, Judge

Representing Appellants (Petitioners-Plaintiffs): Frank J. Jones of Wheatland, Wyoming.

Representing Appellee (Respondent 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 (Intervenor-Defendant): Harriet M. Hageman and Kara Brighton of Hageman & Brighton, P.C. Argument by Ms. Hageman.

Date of Decision: January 19, 2011

Facts: The three appeals consolidated for decision in this opinion all arise out of a decades-old dispute between Appellants (Plaintiffs) and Appellee (Defendant) regarding the appellee’s use of an old river channel to carry irrigation water across land owned by the appellants.

Prior to 1900, Appellee obtained and perfected a right to appropriate water from the North Platte River, with the point of diversion located on unpatented lands. The river was divided into two channels in the area, with the headgate to Appellee’s canal located at its adjudicated point of diversion on the eastern channel. In 1913, because of insufficient flow down that channel, the appellee 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. The Appellants purchased their property in 1964.

Two decades ago, a Consent Decree and Judgment recognized Appellee’s easement and right-of-way across the Appellants’ land for the purpose of access to, and maintenance of, its irrigation facilities. More recently, Appellants filed a lawsuit seeking to quiet title against Appellee to the land underlying the old eastern channel and the land between that channel and the main western channel, and also alleging trespass damages. In that case, the Supreme Court affirmed the district court’s application of estoppel and res judicata, insofar as those doctrines prohibited the appellants from contesting Appellee’s right to access and use its facilities, including the eastern channel. However, the Court also concluded that reliction had occurred, that the Appellants’ property line was now the thread of the western river channel, and the Court remanded to the district court for entry of an order quieting title to the property in the Appellants, subject to Appellee’s easements.

Subsequently, Appellants sent a letter to the superintendent of the Water Division, asking the superintendent to require the appellee to construct a headgate at its diversion dam on the North Platte River. Relying upon this Court’s holding in the quiet title case, that the eastern channel was no longer part of the river, the Appellants cited Wyo. Stat. Ann. Section 41-3-613 (LexisNexis 2009) for the proposition that the appellee had no choice but to construct a substantial headgate at the diversion dam. The division superintendent denied the Appellants’ request. The Appellants filed in the district court a notice of appeal of the decision of the State Engineer. Generally, the Appellants 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.

Issues: (1) Whether the decision of the State Engineer that Appellee’s headgate at its adjudicated point of diversion satisfied the requirements of Wyo. Stat. Ann. § 41-3-613 was contrary to law? (2) Whether the decision of the State Engineer that Appellee is not required to install a headgate at its diversion dam was arbitrary and capricious? (3) Whether the district court failed to follow the mandate of the Supreme Court upon remand? (4) Whether any of the district court’s findings of fact were clearly erroneous? (5) Whether the district court abused its discretion by excluding the testimony of the Appellants’ proposed expert witness? (6) Whether Appellee’s certificate of costs was timely filed? (7) Whether the district court abused its discretion in awarding costs to Appellee?

Holdings: The decision of the State Engineer that Appellee’s headgate located at its adjudicated point of diversion satisfied the requirements of Wyo. Stat. Ann. § 41-3-613 was not contrary to law, and the State Engineer’s decision not to require Appellee to install a headgate at its diversion dam was not arbitrary and capricious. The Court found that while Wyo. Stat. Ann. § 41-3-613 might allow the division superintendent to require the appellee to install a headgate at or near the diversion dam, the statute does not mandate that the division superintendent do so.

The Court further found that the process and decisions of the district court were consistent with the Supreme Court’s mandate upon remand, and its findings of fact following the bench trial were not clearly erroneous. The district court’s exclusion of the testimony of Appellants’ belatedly identified expert witness did not evince an abuse of discretion, particularly because the required disclosures in regard to that witness were not made. Finally, the district court did not abuse its discretion in its award of costs to the appellee, except for the award of $497.00 in deposition costs, which were not adequately substantiated under the applicable court rule.

Affirmed in part, and reversed and remanded to the district court for entry of an order consistent herewith.

J. Voigt delivered the opinion for the court.