Appeals from the District Court of Big Horn County No. S-10-0141 -- The Honorable Dan Spangler, Retired, Judge No. S-10-0184 -- The Honorable Steven R. Cranfill, Judge
The opinion of the court was delivered by: Golden, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Marvin Brent Rageth and Sherri L. Rageth (Rageths) irrigate 559.75 acres in Big Horn County, Wyoming, under an adjudicated appropriation of 8 cubic feet per second (c.f.s.) from Bitter Creek which is conveyed to their property a distance of 6.5 to 7 miles through the Sidon Canal owned by the Sidon Irrigation District (District) organized and existing under pertinent provisions of Wyo. Stat. Ann. Title 41, Chapter 7 (LexisNexis 2011). Rageths are not members of District, and their irrigated acreage is not located within District's boundaries. District comprises approximately 13,129.98 acres under an adjudicated appropriation of 179.57 c.f.s. from the Shoshone River and a supplemental supply from Bitter Creek.
[¶2] Rageths commenced an action against District seeking a declaration of their conveyance rights in the Sidon Canal, reimbursement of water delivery fees paid to District under protest for several past irrigation seasons, and the establishment of a reasonable annual water delivery fee in future years. In time, the parties executed a stipulation, approved by the district court, that Rageths have the perpetual right, as defined by their adjudicated water rights, to divert water from District's Bitter Creek diversion structure and convey such water through the Sidon Canal to their property, subject to an annual payment to District to be determined by subsequent court order, and that Rageths' perpetual conveyance right does not include any ownership interest in District's facilities.
[¶3] As for Rageths' remaining claims for reimbursement of past water delivery fees and establishment of a reasonable annual water delivery fee going forward, District moved for summary judgment, which Rageths opposed. Following a hearing on that motion, the district court granted District's motion. Rageths have timely appealed from that order in No. S-10-0141. The district court also entered its order awarding District's costs as the prevailing party, and Rageths have timely appealed from that order in No. S-10-0184. We consolidated these appeals for decision, and now reverse those orders and remand for further proceedings consistent with this opinion.
[¶4] In No. S-10-0141, the central issue presented is, in the absence of an agreement, what water delivery fee may an irrigation district charge a non-member who has a perpetual right to convey that non-member's adjudicated appropriation to that nonmember's land outside the irrigation district's boundaries using the irrigation district's canal and related facilities. In No. S-10-0184, with respect to the award of costs to District, the resolution of that appeal turns on the outcome of the central issue presented in No. S-10-0141.
FACTS AND PROCEDURAL HISTORY
[¶5] Organized in 1929, District exists under the relevant provisions of Wyo. Stat. Ann. Title 41, Chapter 7 (LexisNexis 2011). District owns the Sidon Canal in Big Horn County, Wyoming, which was constructed in 1900 and has been in operation to the present. District covers approximately 13,129.98 acres with 179.57 c.f.s. of adjudicated water rights diverted from the Shoshone River through the Sidon Canal. District also has a permit for supplemental supply from Bitter Creek.
[¶6] In 2008, Rageths purchased 559.75 acres situated adjacent to the Sidon Canal with 8 c.f.s. of adjudicated water rights diverted from Bitter Creek at a structure built and maintained by District and conveyed through the Sidon Canal. Their water flows in Sidon Canal for a distance of approximately 6.5 to 7 miles to pump stations where the water is pumped above the canal and used in pivots to irrigate their land. Their land is not located within District's boundaries, and Rageths are not members of District.
[¶7] District and previous owners of Rageths' land had agreements establishing their payments for delivery of their water through the Sidon Canal, but these agreements had expired before Rageths' 2008 purchase of their land.*fn1 After Rageths purchased the land, they and District negotiated without success to reach agreement establishing a delivery fee. In 2008, District billed Rageths the sum of $7,560.00 for delivering their 8 c.f.s., that sum representing 75% of the gross assessment for District's members, which was based on $18.00 per acre at the time. In 2009, District billed Rageths the sum of $11,200.00, that sum representing 100% of the gross assessment for District's members, which was based on $20.00 per acre at the time. Rageths paid these bills under protest, and District delivered their water throughout the irrigation seasons.
[¶8] In July 2009, Rageths filed their action for declaratory judgment to establish a reasonable fee for the delivery of their adjudicated irrigation water through the approximately 6.5 to 7 mile stretch of the Sidon Canal and for reimbursement of alleged overpayments of delivery fees for the prior years. After the litigation was underway, the parties engaged in mediation and, as a result, they executed a stipulation, filed with the district court on April 28, 2010, that resolved issues of ownership and rights to the use of the Sidon Canal, but not the issues of establishing for the future a reasonable delivery fee and reimbursement of alleged overpayments of delivery fees for the prior years.
[¶9] With respect to those remaining issues, District filed its motion for summary judgment with supporting material; Rageths responded in opposition to that motion with supporting material; District filed its rejoinder; and the district court heard argument. Following that hearing, the district court granted District's motion and entered its order requiring Rageths to pay District the same per acre fee as District assesses its members on an annual basis.
[¶10] Rageths timely filed their notice of appeal from the summary judgment order and that is before us in No. S-10-0141. The district court also entered its order awarding costs to District as the prevailing party, Rageths timely filed their notice ...