ALICE A. PLATT, Appellant (Defendant),
RALPH E. PLATT, individually, and RALPH E. PLATT AND RONALD R. PLATT, Co-Trustees of the Ralph E. Platt Ranch Revocable Trust, dated the 11th day of May, 2006. Appellees (Plaintiffs)
Appeals from the District Court of Carbon County. The Honorable Steven R. Cranfill, Judge.
For Appellant: Brandon L. Jensen, Joshua A. Tolin, and Karen Budd-Falen of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming. Argument by Mr. Jensen.
For Appellees: William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.
Before BURKE, C.J., and HILL, KITE[*], DAVIS, and FOX, JJ. DAVIS, J., delivers the opinion of the Court; KITE, J., files a dissenting opinion, in which HILL, J., joins.
[¶1] This is an action for partition of a ranch. Appellant Alice A. Platt challenges a district court order which requires the construction of a new ditch to carry the water she received to her parcel of land. We find that the orders entered by the district court are not sufficiently complete to establish that
a partition in kind can be made without manifest injury to the value of the property, and that the district court's order is clearly erroneous because it is not supported by competent evidence that an essential easement and permission for a change in means of conveyance can be obtained. We therefore reverse and remand for further proceedings consistent with this opinion.
[¶2] We restate the issues presented as follows:
1. Is Appellant barred by res judicata, based upon the first order entered by the district court, from challenging the location and provisions related to location of the ditch selected by the district court?
2. Are the two orders, read together, sufficiently complete to resolve the issues necessary to partition the property as has been done?
3. Can a partition action require a party to acquire an easement over lands owned by a third party not involved in the action, and if so, was the district court's requirement that they do so clearly erroneous because it was not supported by adequate evidence?
4. Can a court order a party to a partition action to obtain a change in means of conveyance of water from the Board of Control?
5. Was the district court's selection of what is known as the Westerly Ditch to carry Appellant's water clearly erroneous?
6. Did the district court err in denying Appellant's request for a stay?
[¶3] This partition action returns to the Court for resolution of issues relating to the location of a ditch easement. As will be discussed below, the property involved is a family-owned ranch that was inherited by two brothers, Wayne and Ralph Platt. They have since conveyed their interests to the parties in this appeal.
Proceedings Before the First Appeal
[¶4] As we indicated in our previous decision, disagreements as to the operation of the family ranch located near Encampment, Wyoming led to this action. Platt v. Platt, 2011 WY 155, ¶ 3, 264 P.3d 804, 805 (Wyo. 2011) ( Platt I ). The district court found that the parties were entitled to partition, appointed commissioners as required by statute, and gave them comprehensive instructions as to their duties. Id., ¶ ¶ 3-4, 264 P.3d at 805. See Wyo. Stat. Ann. § 1-32-104 (LexisNexis 2011).
[¶5] The commissioners submitted their report in due course. They proposed a division of the land which will be generally described below, and they recommended that water rights be allocated to the parcel of land to which they were appurtenant. As will be seen, this required that the water appurtenant to the northern parcel awarded to Alice Platt be separated from that appurtenant to the southern parcel awarded to the Trust. The commissioners recommended the establishment of a " Dedicated Ditch" to carry Alice's water to her property. This would require an additional headgate and measuring device to separate the parties' water after it was diverted from the King Turnbull Ditch No. 2, which is not on the partitioned property.
[¶6] The commissioners recommended leaving it up to the parties to locate the Dedicated Ditch, and they gave only a general description of the area in which they believed it should be located.
The Commissioners recommend the installation of a measuring device in the King Turnbull Ditch at the approximate
location where the King Turnbull Ditch crosses the east line of the NE1/4NW1/4 of Section 33, Township 14 North, Range 82 West, for the purposes of measuring all of the water in the King Turnbull Ditch. The Commissioners make a further recommendation that a second measuring device be installed at the point of beginning of what will be a new dedicated " Delivery System" for the purposes of delivering water to the lands awarded to the Defendants.
The Dedicated Ditch would establish a headgate and measuring device located at approximately the S.E. corner of the SW1/4 of Section 28, Township 14 North, Range 82 West. It would then run in a northwesterly direction approximately three-quarters of a mile across lands awarded to Plaintiffs at such location as the parties may jointly agree to the approximately N.W. corner of the SE1/4NW1/4 of Section 28, Township 14 North, Range 82 West, for the benefit of those lands awarded to Defendants. The location of the Dedicated Ditch to be specifically described and to be a permanent easement across those lands on which it is located.
However, in the event the parties are unable to agree on the exact location of the Dedicated Ditch, to serve those lands awarded to Defendants by September 1, 2010, then Commissioners would ask the Court for authority to employ an engineer and to return to the lands with the engineer for the purposes of determining the exact location for such Dedicated Ditch. In making this recommendation, the Commissioners would point out to the Court that because the lands involved are currently covered with snow, it is impossible for them to make a recommendation for the exact location of such ditch at the present time.
(Emphasis added). The commissioners also recommended using the existing ditch system in 2010, contemplating that the Dedicated Ditch would be built in time for use in the Spring of 2011.
[¶7] The district court incorporated these recommendations in its July 1, 2010 order partitioning the property, which basically left the parties to work out a location for the Dedicated Ditch because the commissioners were not able to locate it due to snow cover. The ruling required them to use an existing ditch network to irrigate both parcels until the Dedicated Ditch could be built.
[¶8] The Trust (during this introduction, we will refer to Appellees collectively as the Trust and to Appellant here as Alice because their positions changed between the two appeals) appealed one aspect of the district court's decision, contending that its decision to set aside over 13.15 acres of their property to the ditch and grant an easement to Alice was improper. It argued that the district court lacked authority to modify a partition by court-appointed commissioners. Platt I, ¶ 15, 264 P.3d at 807. While, as discussed below, the order was not truly final, we considered the merits of the narrow issue presented and affirmed. Id., ¶ 22, 264 P.3d at 811.
The Second Proceeding to Locate the Dedicated Ditch
[¶9] As might have been anticipated, the parties were unable to agree on a location for the Dedicated Ditch. The Trust therefore moved to compel Alice to comply with the judgment and agree on the location of the ditch, or for reengagement of the commissioners to locate it. The court reappointed the same three commissioners, who then set out to locate the Dedicated Ditch to convey Alice's water.
[¶10] It is necessary at this point to touch on the history of the land involved here to understand the difficult issues the district court had to resolve. Isaac Platt homesteaded a portion of the partitioned property in 1886. Other portions of the property were originally owned by other homesteaders. These homesteaders filed for water rights and built ditches on their properties.
[¶11] Over time, Ralph H. Platt bought up these properties, which now make up the
partitioned ranch. As most Wyoming citizens already know, the business of ranching requires good pastures and leases on which cattle can graze, but it is also important to have hay meadows. A rancher can harvest the hay and feed it to his cattle when grass is in short supply and in the winter, and in a good year may even have enough hay to sell some of it.
[¶12] This property includes three " fields" or hay meadows: the Home Field, the Pool Field, and the King Field. Before 1949, these were flood-irrigated by a number of different ditches. In 1949, Ralph E. Platt completed what is called the " Pool Enlargement," which allowed him to " bunch" or pool water drawn from the King Turnbull No. 2 ditch on the neighboring Kraft ranch. The water was then sent down a ridge in a ditch the parties call either the Historic Ditch or the North-South Ditch (we will call it the latter). The ranch was able to divert water into ditches branching off the North-South ditch, flood irrigate the King Field (now awarded to the Trust), and then recapture any water left over and flood-irrigate the Home Field where it could be reused on the parcel awarded to Alice.
[¶13] As already noted, this method could not continue after the property was partitioned, because the parties now own separate water rights, and some way had to be found to meter and keep Alice's water separate from that of the Trust. Alice received a superior territorial water right.
[¶14] The commissioners plotted a location for what the record refers to as the Commissioners' Ditch. As in their original recommendation, water allocated to the parties would be removed from the King Turnbull No. 2 Ditch at the existing headgate on the Kraft Ranch. Alice's share would then be separated by another headgate and brought down a new ditch which had to be constructed in the general location of the North-South Ditch. The district court found the negative aspects of this choice to be as follows:
o The ditch would be approximately 7,475 feet long and would require ditch mitigation measures down virtually its entire length as it traverses the center of the land partitioned to the Trust.
o It would require approximately nineteen crossings for machinery, equipment, and cattle, eight crossover pipes and eight related headwalls to carry water without commingling it, as well as eighteen wood boxes for drops to prevent water from eroding the ditch when it rapidly loses elevation.
o A number of trees would have to be removed.
o It would take up about seven acres of the Trust's primary irrigated hay meadow.
o The ditch would be visible from Ron Platt's home. Mr. Platt operates the ranch for the Trust.
o The parties would have to work with machinery in close proximity to maintain their respective ditch networks. They have not been able to get along.
In addition, the Commissioners' Ditch would require an easement across lands owned by the Kraft Ranches due to the topography of the area.
[¶15] Alice proposed that the court simply locate the ditch in the same area as the North-South Ditch. The court found as follows concerning that option:
o This would be the longest ditch of the three proposed, and it would require ditch mitigation measures for its entire length. The ditch is so wide and deep that more than a thirty-foot easement would be required to place another ditch in that area, and the trust would lose more than seven acres of its primary hay meadow.
o It would require more crossings, crossover pipes, headwalls, and wood box drops than the Commissioners' Ditch.
o It would be visible from Ron Platt's home.
o Its location would make it difficult if not impossible for the Trust to use water it
receives from another source, Little Beaver Creek.
[¶16] We note that this location would also require the parties to work with machinery in close proximity to each other in order to maintain or repair their respective ditches. All water to both ditches might have to be shut off if the Dedicated Ditch " blew out." On a positive note, this alternative would not require an easement to be obtained from a neighboring property owner, nor, evidently, permission to change the means of conveyance from the Board of Control. Alice also points out that the North-South Ditch is a known commodity, because it has been used since approximately 1949.
[¶17] At the hearing, the Trust proposed a third option to the west of the other ditches, which is therefore referred to as the Westerly Ditch. The proposed route was simply drawn on a map by Ron Platt, and it has not therefore been surveyed. The district court found as follows concerning the Westerly Ditch:
o It is the shortest ditch of the three at 5,870 feet.
o Because it is located to the west of the Trust's irrigated lands, it will require ditch mitigation measures on only one side.
o It will require at most three crossings for machinery and two crossover pipes, although it will require eight drop pipes in three locations, three concrete diffusers (to mitigate the effects of falling water), and three headwalls at the drop pipe locations.
o No trees will need to be removed.
o The route is in the general area described in the order of partition described above.
o It will not be visible from Ron Platt's home.
o The ditch can be checked from a county road adjacent to the Trust's parcel.
o It will result in the loss of only 3.3 acres of the Trust's irrigated pasture, as opposed to approximately seven acres of irrigated hay meadow.
[¶18] On the negative side, no ditch exists in this area, although there is a remnant of a ditch that has not been used since the 1950s. The general area is therefore untested and may contain porous soils, meaning that water may have to be carried in a pipe or a lined ditch for at least a portion of its length to reduce conveyance losses. It is a steep route, and hence the drop structures are required to avoid having the force of falling water destroy the ditch.
[¶19] On the other hand, all of the commissioners, who are ranchers who irrigate themselves, conceded that the Westerly Ditch could work, although measures to deal with the elevation loss and other factors will be needed, and there will be costs associated with these measures. As with the Commissioners' Ditch, an easement would have to be obtained from the Kraft Ranch to the south of the Trust property, and the Board of Control would have to approve a change in the means of conveyance of the water. As of the date of argument, neither of those things had occurred.
[¶20] A hearing related to all of the above took place on June 19 and 20, 2013. The parties submitted proposed findings of fact and conclusions of law. In a decision letter filed August 26, 2013, the district court chose the Westerly Ditch, although it noted that this was arguably the most expensive option. It commented as follows:
The Court is in a difficult position. While the decision should be fair and equitable, as well as cost effective[,] the Court has to take into consideration the Parties' inability to cooperate in this matter. Therefore, the Court will adopt Mr. Platt's proposal because it has the best future outcome for both parties, being that there would be minimal to no interaction between them for maintenance and inspection. The Court recognizes the expense that both parties will have to incur to achieve this result, however all the proposals
required some amount of construction and cost.
[¶21] The district court entered the findings of fact and conclusions of law proposed by the Trust on August 26, 2013. It ordered the parties to share the cost of installing a headgate to split their water, as well as the cost of building and constructing a workable irrigation system and addressing any problems encountered with the Dedicated (Westerly) Ditch for a period of three years from Alice's first use of the ditch. The orders are contradictory as to which party must pay the costs of correcting any problems and maintenance after that time period. The parties were required to pay their portion of the costs within thirty days of receiving a statement for them, and if a party did not pay, the other person or entity could recover attorney fees and interest at ten percent. It also required that the work be completed " prior to the 2014 irrigation season," but did not define that term.
[¶22] Importantly, the Westerly Ditch can only become a reality if an easement can be obtained to convey water across Kraft Ranches, Inc's land. Appellee informs us that one of the appraisers, Jerry Kraft, is a shareholder in and president of Kraft Ranches, Inc., although this is not reflected in the record. The commissioners' report, which was signed by Mr. Kraft, indicated as follows:
Kraft Ranches, Inc., owner of the property where the measuring devices and headgate are to be located, will allow easement for Dedicated Ditch, access to and from the location, dirt materials necessary for installation and maintenance of same at no cost. Costs associated with any paper work or surveying work deemed necessary to accomplish this shall be shared by the parties of the partition. Owners of Kraft Ranches, Inc. need to be notified of any upcoming work and reserve the right to advise and oversee any construction or maintenance on their property.
[¶23] The district court evidently believed this language sufficient to assure that a workable easement could be obtained, although it does not demonstrate that the Kraft Ranches corporation had approved the gift, the location or the size of the proposed easement, or exactly what rights it retained to " advise and oversee." The court ordered Alice to work with Kraft Ranches to obtain and locate an easement across its land, and directed the parties to ...