Swasey v. Rocky Point Ditch Co.

660 P.2d 224, 1983 Utah LEXIS 992
CourtUtah Supreme Court
DecidedMarch 1, 1983
DocketNo. 17971
StatusPublished
Cited by1 cases

This text of 660 P.2d 224 (Swasey v. Rocky Point Ditch Co.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swasey v. Rocky Point Ditch Co., 660 P.2d 224, 1983 Utah LEXIS 992 (Utah 1983).

Opinion

HALL, Chief Justice:

This is a second appeal of this case, having been remanded by this Court and reheard below on the issue of whether defendant company’s assessment to plaintiffs for the costs of distribution of “new” water through defendant’s irrigation ditches was reconcilable with the terms prescribed by U.C.A., 1953, § 73-1-9.1 Inasmuch as the facts regarding the background of the case are undisputed, we adopt the statement of facts set forth in the first opinion by Justice Maughan:

Plaintiffs initiated this action to secure injunctive relief and damages against defendant, a mutual ditch company. Defendant counterclaimed, seeking a declaration of its obligation to plaintiffs under the company’s Articles of Incorporation and the laws of this state. The matter was tried before the court and all issues were determined adversely to plaintiffs’ claims. The judgment of the trial court is affirmed with the exception of the determination concerning the assessment for “new” water, which is remanded for further hearing in accordance with this opinion. All statutory references are to Utah Code Annotated, 1953, as amended. No costs are awarded.
[225]*225Plaintiffs are shareholders in defendant; the water rights represented by shares of stock are herein identified as “old” water. In addition, by court decree the State Engineer was ordered to grant certain water applications of defendant to appropriate certain high water rights in the Duchesne River on particular acreage in Duchesne County. Plaintiffs are the owners of some of this acreage upon which beneficial use of the water is to be made in accordance with the applications. Proof of this appropriation as required by § 73-3-16 has not been made and consequently no certificate has been issued by the State Engineer as provided in § 73-3-17. The water diverted under these applications is identified as “new” water.
Defendant operates three ditches in its system, which are identified as laterals “A,” “B,” and “C.” Water is diverted from the Duchesne River into lateral A. B and C laterals are branches of A; B traverses the bench lands, and C proceeds along a course at lower elevations.2

Regarding the matter of the assessment for new water, for which the case was remanded for further hearing, this Court held as follows:

Finally, plaintiffs contend the trial court erred in its ruling that the assessments on the new water were equitable and legal. Since the plaintiffs do not have shares of stock on this new water and there is no other agreement as to the cost of using the canal, § 73-1-9 is conr trolling.
The trial court found the amount of the assessment on the new water was derived by the Board of Directors soliciting estimates from the stockholders. The Board averaged these figures and thus set the amount of the assessment. Although the amount may in fact be appropriate, the method by which it was derived was not in accord with § 73-1 — 9. There was no evidence as to the actual expenses of defendant in distributing the water.
In Gunnison-Fayette Canal Company v. Roberts,3 this Court held that the ditch owner, under § 73-1-9 has the burden of proving that all expenses for which it seeks contribution are reasonably related to the cost of distributing the user’s water, for any expenses which do not affirmatively appear to be so related must be excluded. This Court deemed expenditures for certain corporate administrative functions and projections of future canal improvements, sufficiently related to the distribution of the user’s water to be properly included in the assessment. As to that aspect, this case must be reversed and remanded for a hearing to determine if the assessments for the new water, by plaintiffs, paid under the compulsion of a court order, represented an amount reasonably related to the cost of distributing the plaintiffs’ water4 [Emphasis added.]

At the second trial of this issue, defendant proffered written as well as oral evidence of the reasonable relationship of assessments made on the new water users to the costs of distribution incurred by the company. Thereupon, the trial court affirmed, for the second time, the assessments made by defendant, and plaintiff appeals.

The fundamental question presented is whether the evidence presented by defendant on rehearing was sufficient to satisfy its burden on remand and justify the trial court’s decision. In making this determination, we will adhere to the standard of review requiring that the evidence be viewed in a light most favorable to the prevailing party,5 that the judgment of the trial court be afforded a presumption of correctness,6 and that it be affirmed if sup[226]*226ported by competent evidence.7

Defendant called five witnesses, all of whom had been either officers or directors of the company during the period at issue (1975 to 1980), to testify as to the reasonable relationship the assessments on new water users bore to the actual costs of distribution of their water. Each of these witnesses testified that substantial expenditures had been made by the company during this five-year period to enlarge and maintain the canal ditches in order to accommodate the new water.

In support of the witnesses’ testimony, defendant submitted an itemized list of expenses (Exhibit 38) incurred by the defendant company during the subject period which were attributable to the enlargement work performed on laterals A and C (the ditches utilized for the distribution of all of the new water, including plaintiffs’). To establish the authenticity and accuracy of this list, defendant relied, primarily, upon the testimony of Kipp Merkley, who served as president of the defendant ditch company during most of this litigation and currently serves as vice-president, and who, along with Gail Hamilton (current president of the company) and George Marett (president at the time the enlargement was done), prepared the list of expenditures from the company’s records. Mr. Merkley testified as to each entry in defendant’s Exhibit 33, explaining what was done and how it was attributable to delivery of the new water. The contents of the list were also verified by each of defendant’s remaining four witnesses.

Plaintiffs argued below that the expenditures itemized in Exhibit 33 were not representative of the actual costs of distributing the new water through the canal ditches. Furthermore, they argued that the items listed in Exhibit 33 were not attributable, as alleged by defendant, to an enlargement of laterals A and C; rather, they were expenses incurred for purposes, such as routine cleaning and maintenance, completely unrelated to the distribution of new water.

To support this position, plaintiffs submitted their own version of expenditures attributable to new water distribution. Their lists, derived primarily from defendant’s answers to interrogatories, consisted of an itemization of the defendant company’s total expenses over the five-year period with deletions of those expenses which appeared to have no relation to the costs of handling and dispersing the new water (Exhibits 40-44). The particular items deleted from the lists were also submitted to the lower court as Exhibits 45 and 46.

The effect of plaintiffs’ evidence, supra,

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Cite This Page — Counsel Stack

Bluebook (online)
660 P.2d 224, 1983 Utah LEXIS 992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swasey-v-rocky-point-ditch-co-utah-1983.