355 P.3d 1222
Wyo.2015Background
- Farmers Canal Permit No. 854 (filed 1894) originally covered Tract 109 (161.73 acres) but no certificate of appropriation was ever issued for that tract under Permit 854.
- In 1916 Levi Johnson (predecessor to Mohr) applied for and received Permit No. 3712E (Perkins Ditch Enlargement) to irrigate Tract 109; he executed an affidavit stating Farmers Canal water had not been used on Tract 109, asking cancellation of Permit 854 as to that tract.
- Johnson completed works and proved appropriation; the Board issued a certificate for Tract 109 under the Perkins Ditch Enlargement (priority 1916; perfected by certificate in 1922). Since at least 1922 Tract 109 has been irrigated under Permit 3712E, though conveyance has sometimes been via Farmers Canal.
- During Phase III of the Big Horn River general adjudication, the Board/Administrator recommended eliminating unadjudicated acreage from Permit 854, including Tract 109, because Tract 109 was adjudicated under Permit 3712E.
- The Special Master and district court recommended and adopted elimination of Tract 109 from Permit 854; Mohr (current owner) appealed, arguing Johnson’s affidavit did not relinquish the Farmers Canal right and asserting procedural errors; the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (Mohr) | Defendant's Argument (State/Board) | Held |
|---|---|---|---|
| Whether Mohr is bound by predecessor’s acts/adjudication | Predecessor’s affidavit and actions did not legally eliminate Farmers Canal right; Mohr not bound | Johnson’s affidavit and subsequent perfecting of Perkins Ditch showed waiver/relinquishment; property bound by predecessor | Held: Mohr is bound; predecessor waived Farmers Canal right by affidavit and perfecting Permit 3712E; Tract 109 eliminated from Permit 854 |
| Whether Farmers Canal Permit was perfected for Tract 109 before 1916 | Mohr argued uncertainty about pre-1916 use supports retaining Permit 854 right | State: no proof of beneficial use under Permit 854 for Tract 109; Perkins Ditch was perfected instead | Held: No clear evidence of pre-1916 beneficial use under Permit 854; Permit 854 remained inchoate for Tract 109 |
| Whether affidavit effected abandonment vs. waiver | Mohr suggested affidavit insufficient to constitute abandonment/forfeiture under statutory procedures | State argued affidavit manifested intent to relinquish and, with subsequent perfection of 3712E, operated as waiver | Held: Court treats Johnson’s affidavit plus actions as an effective waiver; statutory formal abandonment not required where waiver is clear and right was perfected under another permit |
| Whether Mohr received fair procedural process under W.R.C.P. | Mohr alleged multiple procedural violations by district court | State/district court: procedures followed; Mohr offered no cogent argument or authority showing harm | Held: Procedural claims rejected for lack of cogent argument and failure to show prejudice; court’s process adequate |
Key Cases Cited
- In re General Adjudication of All Rights to Use Water in Big Horn River System, 803 P.2d 61 (Wyo. 1990) (describes phased general adjudication structure)
- In re General Adjudication of All Rights to Use Water in Big Horn River System, 85 P.3d 981 (Wyo. 2004) (explains three-step water-permitting/appropriation process)
- Green River Dev. Co. v. FMC Corp., 660 P.2d 339 (Wyo. 1983) (distinguishes inchoate vs. perfected water rights; importance of certificate of appropriation)
- Jensen v. Fremont Motors Cody, Inc., 58 P.3d 322 (Wyo. 2002) (defines waiver elements: existing right, knowledge, and intent to relinquish)
- Campbell v. Wyoming Development Co., 100 P.2d 124 (Wyo. 1940) (successors in interest take no better position than predecessors)