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Scott v. McTiernan3/22/1999
OCTOBER TERM, A. D. 1998
W.R.A.P. 12.09(b) Certification from the District Court of Sheridan County The Honorable John C. Brackley, Judge
Appellants Sam Scott and Mona Scott (the Scotts) petitioned for a review of the order in which Appellee Board of Control of the State of Wyoming (the board) concluded that the Scotts had abandoned a portion of their water rights. The district court certified the case to the Wyoming Supreme Court.
We affirm in part, reverse in part, and remand.
ISSUES
The Scotts present the following issues on appeal:
1. Can a senior appropriator's water rights be abandoned on the petition of a junior appropriator who deliberately blocked and destroyed ditches to prevent the senior appropriator from receiving irrigation water during the five year period immediately preceding the filing of the abandonment petition and who during that five year period assured the senior appropriator that he would restore the ditches?
2. Was the Board's Conclusion that only 14.1 acres of the Shallcross property were irrigated in the five years immediately preceding the filing of the abandonment petition supported by substantial evidence and sufficiently detailed findings of fact?
3. Was the Board's Conclusion that only 7.6 acres of Tracts 3 and 4 between the Northeast 22 Draw and Smith Creek were irrigated supported by substantial evidence and sufficiently detailed findings of fact?
4. Did the Board correctly conclude that the No. 3 right did not apply to the 10.1 acres south of Smith Creek in Tracts 3 and 4?
FACTS
The Scotts owned property in Sheridan County, and Appellee John McTiernan and Appellee Donna Dubrow (John's wife) (collectively referred to as McTiernan), owned a ranch which neighbored the Scotts' property. At one time, McTiernan's property and the Scotts' property were owned in common. McTiernan and the Scotts held water rights in Smith Creek to irrigate their respective properties.
The Scotts owned part of the John Ross Appropriation, which was a territorial water right with the priority date of May 1882 and was the number three priority on Smith Creek. Two parcels of land owned by the Scotts were irrigated by the John Ross Appropriation: (1) Tracts 3 and 4; and (2) the Shallcross property. The adjudicated point of diversion for the John Ross Appropriation was the Ross No. 1 Ditch. A prior common owner of McTiernan's property and the Scotts' property developed a complex system of diversions and ditches to utilize his water rights. As a result, the John Ross Appropriation was not actually diverted through the Ross No. 1 Ditch but was, instead, diverted through several other points of diversion. The Scotts' irrigation water for Tracts 3 and 4 was, therefore, conveyed in ditches across McTiernan's property.
In 1991, McTiernan started deliberately preventing water from flowing down the ditches to Tracts 3 and 4. McTiernan also filled in ditches which had previously conveyed water to the Scotts' property in order to facilitate the movement of his side-roll sprinklers. McTiernan's ranch manager and another McTiernan employee assured the Scotts that the ditches would be replaced.
On August 29, 1996, McTiernan filed a petition with the board for a declaration of abandonment of the John Ross Appropriation. McTiernan claimed that the water from the John Ross Appropriation had not been beneficially used in the five years immediately preceding the abandonment petition. The Scotts reciprocated by filing a petition for a declaration of abandonment of several of McTiernan's water rights. The board consolidated the abandonm
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