South Flag Lake, Inc. v. Gordon

307 S.W.3d 601, 2009 Ark. App. 276, 2009 Ark. App. LEXIS 420
CourtCourt of Appeals of Arkansas
DecidedApril 15, 2009
DocketCA 08-623
StatusPublished
Cited by4 cases

This text of 307 S.W.3d 601 (South Flag Lake, Inc. v. Gordon) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South Flag Lake, Inc. v. Gordon, 307 S.W.3d 601, 2009 Ark. App. 276, 2009 Ark. App. LEXIS 420 (Ark. Ct. App. 2009).

Opinion

ROBERT J. GLADWIN, Judge.

| j Appellant South Lake, Inc. appeals the October 23, 2007 order of the Arkansas County Circuit Court that denied appellant’s complaint for injunction. On appeal, appellant argues that the circuit court erred in adopting the reasonable-use theory and in denying the complaint for an injunction against appellees’ pumping and artificially maintaining the level of Flag Lake. We affirm.

Facts

This appeal arises from a lawsuit between appellant, an Arkansas corporation that owns certain farm land in Arkansas County for the primary purpose of hunting and fishing, and appellees — various individuals, estates, partnerships, and corporations that own farmland in the same area of Arkansas County. Part of appellant’s property lies within a body of water known as Flag Lake. Appellees’ various properties are located either within |2or adjacent to Flag Lake, or in close vicinity thereto. Appellees use water from Flag Lake to irrigate their crops.

Evidence indicates that in 1931 the natural elevation of the lake was approximately 165 feet. Around 1940, appellees’ predecessors built a levee at the south end of Flag Lake to impound water therein for the irrigation of their crops. The levee was built after appellees’ predecessors made a request to appellant’s predecessors, and it is undisputed that the levee benefitted both appellees’ predecessors for irrigation purposes and appellant’s predecessors for hunting purposes. A permanent spillway was built into the levee at the time of its construction that allowed water to be held in Flag Lake to a maximum level of 168 feet. Subsequently, water was pumped out of Flag Lake to irrigate the surrounding farmland.

In 1980, appellees formed an association known as the Flag Lake Water System Associates for the purpose of better utilizing the lake for irrigation purposes. In 1981, the association built a surface-water-irrigation system whereby water can be pumped into Flag Lake from Bill’s Bayou to replenish the water that is pumped out for irrigation purposes. This construction included the strengthening of the levee and the addition of an adjustable-spillway weir in the levee. The weir system is made of a batter-board type whereby boards may be added or removed from the weir box to raise or lower the level of Flag Lake. The elevation at the bottom of the adjustable weir is 164 feet and nine inches to which boards can be added to hold water to a maximum of 168 feet — identical to the permanent spillway. As a result, the lake has two spillways located side by side, so that water can be lowered for work after the irrigation season and raised during irrigation season.

IsFlag Lake receives runoff from two creeks, and the natural runoff from the Flag Lake watershed would keep the lake at an average elevation of 168 feet if no water was pumped into or out of it. There are occasions when the Arkansas River is at such a level that it backs up water through its tributaries into Flag Lake to a level greater than 168 feet.

In 1981, appellant’s predecessor and the association entered into an easement regarding the pumping of water into Flag Lake, and that practice has continued with the parties negotiating from time to time as to the proper level of the lake. However, appellant asserts that permission to pump water into the lake was granted as part of the easement only for a period of five years. Since the entry of the easement, appellees have used Flag Lake almost exclusively as their source of irrigation. Appellant contends that any pumping into the lake since 1985 has occurred solely through permission it extended to the farmers.

A level of 168 feet is required to provide irrigation water to the 3,425 acres of farmland it serves. If Flag Lake was lost as a source of irrigation, appellees would be required to put down twenty-three wells at an average cost of $28,000 each to compensate for the loss of irrigation water.

Appellant contends that the pumping of water into Flag Lake has damaged its ability to successfully hunt on its property by killing vegetation and preventing reseeding during the growing season. Additionally, appellant argues that the water level caused by the pumping prevents the planting of vegetation in the area around appellant’s house blind. However, there is evidence that indicates that because the natural average of the lake since the construction of the levee in 1940 would be 168 feet, such planting would not be feasible |4even if appellees were enjoined from further pumping. Additionally, evidence supports a finding that the house blind is located in the main part of the lake where the natural level prior to the construction of the levee was 165 feet — still not likely dry enough to enable planting of vegetation. Appellant did not request that the levee be removed and has acknowledged that no economic loss has been suffered— merely that the pumping has adversely affected its ability to hunt waterfowl on its property.

Appellant advised appellees in 2003 that no more pumping would be allowed and filed a complaint seeking a permanent injunction on March 17, 2005. Appellees filed a timely answer on April 7, 2005, which was followed by a response from appellant filed on April 21, 2005. Additional pleadings were filed by both parties, and on April 18-19, 2007, testimony was heard over a period of more than a day and a half, numerous exhibits were introduced, and the parties submitted briefs and proposed findings of fact and conclusions of law. The circuit court also viewed Flag Lake and the water-control system accompanied by counsel and representatives of both parties. On October 2, 2007, the circuit court entered a letter ruling denying appellant’s request for an injunction, and an order to that effect was filed on October 23, 2007. Appellant filed a timely notice of appeal on October 29, 2007, and this appeal followed.

Standard of Review

Both parties cite Delancy v. State, 356 Ark. 259, 151 S.W.3d 301 (2004), regarding the standard of review, in which our supreme court stated that it reviews injunc-tive matters de novo. Additionally, the supreme court stated in Delaney that,

|sThe decision to grant or deny an injunction is within the discretion of the trial judge. We will not reverse the judge’s ruling granting or denying an injunction unless there has been an abuse of discretion. When considering an order that grants or denies an injunction, we will not delve into the merits of the case further than is necessary to determine whether the lower court exceeded its discretion. We have explained that the sole question before us is whether the trial court departed from the miles and principles of equity in making its order, and not whether we would have made the order. In reviewing the lower court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony.

Id. at 264-65, 151 S.W.3d at 304-05 (internal citations omitted). Additionally, appellant contends that the circuit court erred by inappropriately applying a reasonable-use theory on this water-rights case, and as such, an abuse of discretion and misapplication of the law occurred, which also requires de novo review. Id.

Discussion

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Cite This Page — Counsel Stack

Bluebook (online)
307 S.W.3d 601, 2009 Ark. App. 276, 2009 Ark. App. LEXIS 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-flag-lake-inc-v-gordon-arkctapp-2009.