Associated Enterprises, Inc. v. Toltec Watershed Improvement District

656 P.2d 1140
CourtWyoming Supreme Court
DecidedJanuary 6, 1983
DocketNo. 5694
StatusPublished

This text of 656 P.2d 1140 (Associated Enterprises, Inc. v. Toltec Watershed Improvement District) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 656 P.2d 1140 (Wyo. 1983).

Opinions

BROWN, Justice.

Appellee condemned appellants’ land to construct a reservoir. The trial court entered an order granting condemnation and an order of award. A judgment on a jury verdict awarding just compensation for the land taken was also entered. This appeal is from both orders and from the judgment on the verdict.

We will affirm.

Appellants designate the issues on appeal:

“I. Appellee, Toltec Watershed Improvement District, was denied the right to condemn the land of Appellants, Associated Enterprises, Inc., Johnston’s Fuel Liners, Inc., and Anabel Malmquist Michele, by reason of W.S.1977, § 41-8-126, which prohibits impairment of existing water rights, appropriations or priorities.
“II. Appellee, Toltec Watershed Improvement District, was not authorized to condemn land initially for recreation contrary to W.S.1977, § 41-8-102.
“HI. The exercise of the right of eminent domain by Toltec Watershed Improvement District for supplemental water and recreation is not a public necessity, benefit, or advantage which justifies the taking of Appellants’ land and impairing its existing water rights permits and appropriations for a reservoir.
“IV. The Verdict should be set aside and vacated as it is not supported by competent evidence and is contrary to the evidence.
“V. Proper interest was not awarded Appellants.”

Appellee Toltec Watershed Improvement District was established after a referendum, held pursuant to the Watershed Improvement District Act. Sections 41-354.1 to 41-354.26, W.S.1957 (Cum.Supp.1971) (Now §§ 41-8-101 to 41-8-126, W.S.1977).

The parties here have been involved in litigation for more than twelve years. In 1970 appellee sought a right to enter on to land owned by appellant Associated Enterprises, Inc. and leased by appellant Johnston Fuel Liners, Inc. to carry out foundation studies for a dam site. Appellants resisted, claiming that the Watershed Improvement District Act was unconstitutional because it violated the “one man, one vote” concept under the Wyoming and the United States Constitutions.1

We held in Associated Enterprises, Inc. v. Toltec Watershed Improvement District, Wyo., 490 P.2d 1069 (1971), that the “one man, one vote” concept of equal protection under state and federal constitutions is not to be applied to entities such as watershed improvement districts and that the statute creating watershed improvement districts is not unconstitutional as offending such concept. The United States Supreme Court affirmed this decision. Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973).

In 1978 the parties were again before this court. In that action appellants here contested the authority of the State Engineer to grant appellees an extension of time to commence and complete construction of a reservoir. We affirmed the district court in its decision affirming the State Engineer granting such extension. Associated Enterprises, Inc. v. Toltec Watershed Improvement District, Wyo., 578 P.2d 1359 (1978).

In 1974 appellee filed a complaint to condemn 264.68 acres of appellants’ land on which to construct a reservoir.2 Appellants [1142]*1142appeal from the district court’s order granting condemnation, order of award and judgment awarding compensation.

I

Appellants’ most compelling argument for reversal is their contention that § 41-8-126, W.S.1977, constitutes a statutory limitation upon appellee’s eminent domain authority. This statute provides:

“Nothing in this Act shall be so construed as to in any manner impair existing water rights, appropriations or priorities.”

Appellee says that appellants still have their water rights and priorities. Appellee contends that appellants’ land was condemned as irrigated land and compensation was awarded on that basis, but that appellants still own the water rights. Appellants argue that this is a valueless property right. Appellants placed in evidence an affidavit that there was no land to which appellants’ water rights could be transferred. Furthermore, appellants’ water rights, if they have any left, are subject to being extinguished by nonuse.3

Appellee says that its right to condemn appellants’ land was determined by this court in a prior case between the same parties. In Associated Enterprises, Inc. v. Toltec Watershed Improvement District, supra, at 1368, we said we would not assume that the legislature would pass an act which would have no force or effect, because the legislature will not be presumed to intend futile things. We went on to say that appellants’ interpretation of § 41-8-126, supra, would force a construction that would nullify the entire Watershed Improvement District Act:

“For the legislature to say, on the one hand, that a watershed district has the power of eminent domain to enable it to build dams and irrigation systems, while, at the same time limiting that right to only those situations in which no existing water rights, appropriations or priorities are impaired, would be inconsistent, impractical, and would have the effect of charging the legislature with the passage of a useless act. The rivers and streams of Wyoming are so completely appropriated that it is now virtually impossible to undertake construction of a reservoir without in some manner affecting an existing water right. The requirement under the statutory provisions for condemnation that this impairment must be compensated for in a just manner nullifies any equitable argument on the part of the prior appropriator.”

We also said in that case that the land to be taken would be compensated for as irrigated land, unless it could be shown that the water rights were to be transferred to a third party or transferred to other lands.4

[1143]*1143Appellants vigorously contend that what we said in the 1978 case of Associated Enterprises, Inc. v. Toltec regarding eminent domain was dicta and not precedent. Appellants further contend that this court’s decision in that case assumed facts not in the record. We will not review the issues and record in the 1978 case to determine whether what we said in that case was dicta. We are satisfied that the analysis is sound, and that it is applicable to this case, where the issue of appellee’s right to condemn appellants’ land is squarely before this court.

It is difficult to see how the purposes of the Act could be accomplished without in some way affecting existing water rights. While the construction of a reservoir may be the key to a water improvement project, other facilities are also necessary. Canals, laterals, flumes and diversion structures must also be built. Construction of any of these facilities would have to affect existing water rights in some way.

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Bluebook (online)
656 P.2d 1140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/associated-enterprises-inc-v-toltec-watershed-improvement-district-wyo-1983.