Hofeldt v. Eyre

849 P.2d 1295, 1993 Wyo. LEXIS 69, 1993 WL 92172
CourtWyoming Supreme Court
DecidedApril 1, 1993
Docket91-179
StatusPublished
Cited by4 cases

This text of 849 P.2d 1295 (Hofeldt v. Eyre) 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
Hofeldt v. Eyre, 849 P.2d 1295, 1993 Wyo. LEXIS 69, 1993 WL 92172 (Wyo. 1993).

Opinions

BROWN, Justice, Retired.

The Wyoming State Board of Control denied Harold Hofeldt’s petition for a declaration of abandonment of certain supplemental supply water rights attached to lands owned or leased by respondents Thomas Redmon and John Eyre.

Respondents state that the issues are:

Does the abandonment statute, § 41-3-401, W.S.1977 (Cum.Supp.1991), apply to a supplemental supply water right in the same manner as it does to an original supply water right; and
If not, is a supplemental supply right subject to a declaration of abandonment for non-use when the irrigation requirements of the appurtenant lands are fully satisfied without having to use the supplemental supply right.

We reverse and remand to the State Board of Control.

Respondent Redmon holds several water rights appurtenant to land located in Township 16 North, Range 114 West, Uinta County. These rights include original direct-flow rights, secondary supply, and supplemental ' supply rights.

Redmon’s original supply rights under Permits 2360 Enl. and 2361 Enl. (the Leonard Wall appropriations) are appurtenant to 160 acres in Sections 8 and 17 and to 120 acres in Section 17, respectively. Water under these rights is diverted and conveyed to the appurtenant land by means of the enlarged Deeben-Heinze Ditch. These water rights have priorities of May 14, 1909, and June 20, 1910, respectively.

Redmon was also entitled to apply water to some of these same lands under the Leonard Wall appropriation, Permit No. 5440 Enl., and Permit No. 5612 Res. This secondary supply right has a priority of April 2, 1947, is appurtenant to the acreage to which the original supply rights apply under Permits 2360 Enl. and 2361 Enl., and is conveyed from the reservoir to the lands by means of the enlarged Deeben-Heinze Ditch.

[1296]*1296Redmon also holds a supplemental water right under permit No. 27022 for 249.5 acres, with a priority of October 10, 1978.1 Redmon’s supplemental water right, with an October 10, 1978 priority, encompasses a diversion from the Black's Fork River through the Redmon Portable Pipeline to supplement the original supply water rights under Permit No. 2360 Enl. and Permit No. 2361 Enl., the Enlarged Deeben-Heinze Ditch and the Leonard Wall appropriation, which divert from the Black’s Fork River. It is appurtenant to 80 of the acres in Section 8 and 62.7 of the acres in Section 17 to which Permit 2360 Enl. applies, and to 106.8 of the acres in Section 17 to which Permit 2361 Enl. applies. Water supplied under this supplemental supply right is conveyed to the lands in question by pumping it through the Redmon Portable Pipeline.2

Petitioner Harold Hofeldt holds a water right under Permit No. 6920 Enl., with a priority of November 14, 1986. Petitioner’s water right encompasses a diversion from the Black’s Fork River, a tributary of the Green River. On April 16, 1990, Ho-feldt filed a Petition for Declaration of Abandonment pursuant to Wyo.Stat. § 41-3-401 (Supp.1991), seeking a declaration by the Board that certain supplemental supply water rights, owned and used by respondents Redmon and Eyre, respectively, under Permit No. 27022, had been abandoned.

Petitioner asserted that water under Permit No. 27022 had not been applied to beneficial use through the Redmon Portable Pipeline on the lands of record for at least five consecutive years immediately preceding the filing of the petition for declaration of abandonment when water was available to satisfy the right. In the five years immediately preceding the filing of the petition for declaration of abandonment (April 16, 1990), Redmon/Eyre purchased water from the Meeks Cabin Reservoir rather than use their supplemental supply through the Redmon pipeline.3

The State Board of Control denied Ho-feldt’s petition and Hofeldt filed a petition for review in the district court dated February 13, 1991. In Finding of Fact Number 16 (which also contains a conclusion of law), the State Board of Control determined:

THAT Contestees’ [Redmon/Eyre] legal entitlement to use of supplemental water under Permit No. 27022 did not constitute a requirement that water be diverted at such times. Contestees[’] evidence was uncontroverted that the lands in contest were sufficiently irrigated for their purposes by water from other sources during the time period at issue, thereby eliminating the need for the supplemental supply during that period.

The district court certified the case to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09.

The single issue in this appeal is whether the abandonment of water rights statute applies to a supplemental supply water right. Wyo.Stat. § 41-3-401(a) (Supp.1991) provides, in pertinent part:

Where the holder of an appropriation of water from a surface, underground or reservoir water source fails, either intentionally or unintentionally, to use the water therefrom for the beneficial purposes for which it was appropriated, whether under an adjudicated or unadjudicated right, during any five (5) successive years, he is considered as having abandoned the water right and shall forfeit all water rights and privileges appurtenant thereto.[4]

[1297]*1297There is no dispute with respect to the facts necessary for our determination:

(1) In each of the five years before Ho-feldt filed his abandonment petition, there was insufficient water from Redmon’s original supply right to irrigate appurtenant lands.

(2) That during each of the five years immediately preceding the filing of the petition for declaration of abandonment, water was generally available under Red-mon’s supplementary supply permit.

(3) In each of the five years referred to above and pertinent to this case, Red-mon/Eyre used reservoir water to supplement the original supply permit rather than water under the supplementary supply permit.

Hofeldt’s standing to petition for a declaration of abandonment under Wyo.Stat. § 41-3-401(b)(i) (Supp.1991)5 is not contested. The parties agree that this is a case of first impression in Wyoming and that cases cited in the briefs are not much help to this court in making its determination. In Cremer v. State Board of Control, 675 P.2d 250 (Wyo.1984), we held that surplus water rights were not subjected to abandonment without also abandoning their base rights (original rights). The State Board of Control contends that the rationale of Cremer with respect to surplus water rights should also apply to supplementary water rights; that is, the supplementary water right cannot be subject to abandonment unless the original water rights are also abandoned. The Board makes an additional argument and cites one of its own rules in support:

The appropriation of water as supplemental supply is defined in detail by W.S. 41-3-113. In general, it involves the appropriation of direct flow water from another source to augment or supplement the available water for an existing appropriation for which the original source of supply does not provide a full supply.

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Hofeldt v. Eyre
849 P.2d 1295 (Wyoming Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
849 P.2d 1295, 1993 Wyo. LEXIS 69, 1993 WL 92172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hofeldt-v-eyre-wyo-1993.