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Kerbs v. Walck

April 27, 2010

SCOTT KERBS, AN INDIVIDUAL AND AS A PARTNER IN THE KERBS FOUR BAR RANCH PARTNERSHIP, KIP KERBS, AN INDIVIDUAL AND AS A PARTNER IN THE KERBS FOUR BAR RANCH PARTNERSHIP, CARL KERBS AND NADENE KERBS, INDIVIDUALLY, AS HUSBAND AND WIFE, AND AS PARTNERS IN THE KERBS FOUR BAR RANCH PARTNERSHIP, AND KERBS FOUR BAR RANCH, A WYOMING PARTNERSHIP, APPELLANTS (DEFENDANTS),
v.
EUGENE W. WALCK, JR., APPELLEE (PLAINTIFF).



Appeal from the District Court of Carbon County The Honorable Norman E. Young, Judge.

The opinion of the court was delivered by: Burke, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] After a bench trial, the district court entered judgment in favor of Eugene W. Walck, Jr., ruling that the Kerbs Ranch*fn1 had wrongfully interfered with Mr. Walck's water rights. The Kerbs Ranch appeals. We will affirm.

ISSUES

[¶2] The Kerbs Ranch presents these three issues:

1. Did the trial court err in awarding damages to Mr. Walck for lost crop production that was not caused by Kerbs Ranch?

2. Did the trial court err in awarding damages to Mr. Walck for lost crop production for Kerbs Ranch asserting its rightful share of water in commonly-owned ditches when the parties' water rights were of equal priority?

3. Did the trial court err in calculating the amount of damages based on the Farm Service Agency's countywide average when evidence was presented showing that Mr. Walck's historical hay and pasture crop production was only 68.5 percent of the county-wide average?

Mr. Walck contends that the district court's conclusions of law were correct, and that its findings of fact, including its damages calculations, were not clearly erroneous.

FACTS

[¶3] The Kerbs Ranch is located in Carbon County, Wyoming, a few miles west of the town of Saratoga. Mr. Walck's ranch is immediately west of the Kerbs Ranch. Jack Creek, a tributary of the North Platte River, winds its way in a northeasterly direction through Mr. Walck's ranch, then through the Kerbs Ranch. Both ranches use irrigation water from Jack Creek to produce hay that is used as winter feed for cattle.

[¶4] In the spring of 2002, due to drought conditions and low water levels, the State of Wyoming regulated the North Platte River in response to the Federal Bureau of Reclamation's call to fulfill its water rights for Pathfinder Reservoir. This was commonly referred to as the "Pathfinder Call." Pathfinder's water rights date back to 1904, so when the North Platte came under regulation, pre-1904 water rights could still be fulfilled, while post-1904 water rights generally could not. As a tributary to the North Platte, Jack Creek was subject to the Pathfinder Call. Both Mr. Walck and the Kerbs Ranch have some pre-1904 water rights, which were fulfilled, and some post-1904 water rights, which were not.

[¶5] With less rainfall and less irrigation water than usual, Mr. Kerbs took actions to get the water he felt he was entitled to receive. In his words, "I . . . did what I had to do." Additional details about the actions taken by Mr. Kerbs will be set forth in the discussion section. For now it is sufficient to note two details. First, based on his actions, Mr. Kerbs was convicted of unlawful water use and tampering with a headgate, a misdemeanor pursuant to Wyo. Stat. Ann. § 41-3-614 (LexisNexis 2001). Second, Mr. Walck claims that Mr. Kerbs's actions wrongfully deprived him of the irrigation water he was entitled to receive. That is the root of the litigation before us now.

[¶6] Mr. Walck filed suit in 2004, pleading eighteen causes of action against the Kerbs Ranch. The Kerbs Ranch filed an answer, along with six counterclaims against Mr. Walck. Many of these claims and counterclaims were resolved through mediation, and the rest went to trial. Following a bench trial, the district court issued a thorough and detailed Judgment and Order, ruling in favor of Mr. Walck on some claims and in favor of the Kerbs Ranch on others. The Kerbs Ranch's appeal is limited to the district court's rulings on claims that it wrongfully interfered with Mr. Walck's water rights.

STANDARD OF REVIEW

[¶7] We apply a well-established standard of review to a district court's judgment after a bench trial:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Findings of fact will not be set aside unless the findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. We review a district court's conclusions of law de novo on appeal.

Springer v. Blue Cross & Blue Shield, 944 P.2d 1173, 1175-76 (Wyo. 1997) (internal citations omitted). We assume that the evidence of the prevailing party is true, and give that party every favorable inference that can fairly and reasonably be drawn from that evidence. Harber v. Jensen, 2004 WY 104, ¶ 7, 97 P.3d 57, 60 (Wyo. 2004).

DISCUSSION

[¶8] A preliminary issue raised by the Kerbs Ranch is that the district court failed to specify whether Mr. Walck's claims "sounded in negligence or an intentional tort such as conversion." This Court has considered several cases involving wrongful interference with water rights over the years, but never found it necessary to fit such claims into any specific tort category. See, e.g., Stoner v. Mau, 11 Wyo. 366, 72 P. 193 (1903); Gustin v. Harting, 20 Wyo. 1, 121 P. 522 (1912); Wallis v. Luman, 625 P.2d 759 (Wyo. 1981). In Van Buskirk v. Red Buttes Land and Live Stock Co., 24 Wyo. 183, 199, 156 P. 1122, 1126 (1916), we observed that "there can be no doubt that at common law, and under the code prescribing civil remedies, there would be a right of action for damages for a wrongful interference with a water right to the injury of the owner thereof." Consistent with that basic formulation, the district court ruled that the Kerbs Ranch wrongfully interfered with Mr. Walck's water rights, to his injury. The record in this case leaves no doubt that the district court, and the Kerbs Ranch, fully understood the nature of Mr. Walck's claims.

[¶9] With the general contention out of the way, we turn to the details of Mr. Walck's claims against the Kerbs Ranch. We will start with claims relating to irrigation ditches on the north side of Jack Creek, then consider claims relating mostly to irrigation ditches on the south side of Jack Creek. Finally, we will review the district court's damages calculations.

North of Jack Creek

[ΒΆ10] On the north side of Jack Creek there are two irrigation ditches at issue in this appeal. The headgate of the Forney No. 2 Ditch is upstream on Jack Creek, and the headgate of the D. McPhail Ditch is downstream. The two ditches run nearly parallel, and very close together, for approximately five miles across Mr. Walck's ranch. Then, near the border with the Kerbs Ranch, the Forney No. 2 Ditch goes through a flume and crosses over the D. McPhail Ditch. After that, the D. McPhail Ditch remains on Mr. ...


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