INTRODUCTION
¶ 1 Plaintiff Green River Canal Company (GRCC) and Defendant Lee Thayn (Thajm) both own and operate irrigation canals in Green River, Utah. GRCC alleges that Thayn breached agreements made by the parties in 1952 to govern their shared use of certain water diversion facilities owned by Green River when Thayn built and began operating a small hydroelectric power generation facility that used water in excess of the amounts mentioned in the 1952 agreements. The trial court ruled in favor of GRCC, holding that the 1952 agreements are determinative as to both the amount of water each party is entitled to divert through the facilities and the uses to which that water is put. The principal issue before us is whether the 1952 agreements impose a fixed limitation on the amount the parties are entitled to divert through the facilities, or whether the agreement merely describes the parties’ 1952 water rights and does not preclude a change in the amount of water diverted through the facilities or a change in the water’s use.
BACKGROUND
¶2 Approximately six miles north of the City of Green River, Utah, is a crescent-shaped dam that spans the width of the Green River and channels water through certain water diversion facilities and into the parties’ irrigation canals. GRCC is a nonprofit, mutual water company. In the 1880 s, GRCC built an eight-and-a-half mile canal to serve its shareholders. Thayn is the successor-in-interest to a farm and appurtenant water rights purchased from Wilson Produce Company (Wilson) under a 1979 .contract. In 1933, in order to irrigate the farmland, Wilson constructed a canal that is approximately forty-two (42) feet higher in elevation than, and parallel to, GRCC’s canal. To pump the water up to his canal, Wilson remodeled a small, old, hydroelectric facility once owned by Green River City that sat between GRCC’s canal and the river. -This building and facility, known as the'pump house or powerhouse, delivers water from the pump house up into the canal.
¶ 3 Before the parties’ water reaches the pumphouse or their canals, the water must first pass through a series of shared water diversion facilities. In addition to the dam across the Green River, the diversion facilities consist of a 40-foob-wide, 2,500-foot-long, unlined canal known as the “raceway.” Water that is diverted from the dam flows in a southerly direction down the raceway through a set of “control gates” that can be utilized to restrict the flow of water for maintenance and repair on the raceway. Water then continues to the foot of the raceway where GRCC’s canal carries the flow south to its shareholders. Thayn’s pump house is located perpendicular to, and abutting the east side of GRCC’s canal inlet. All of the water in the raceway that does not flow down GRCC’s canal goes under the pump house through a set of turbines or to Thayn’s irrigation pumps to pump water up to his canal. The pump house is also fitted with a set of “radial gates” that Thayn opens periodically in order to flush silt and sand that has built up in the raceway back into the river. In 1992, Thayn renovated the pump house, upgraded the turbines, and put in a small hydroelectric power generation facility at a cost of approximately $300,000.
¶ 4 GRCC and Thayn (via his predecessor, Wilson) are parties to a 1952 Agreement (the 1952 Agreement) that sets out their rights and interests with respect to the ownership and use of these diversion facilities. First, the 1952 Agreement establishes that GRCC *1138 owns the dam, the raceway, and the area surrounding the pumphouse parcel, and that Thayn 1 owns the pumphouse parcel itself and a parcel at the head of his canal. Second, the 1952 Agreement establishes a scheme for joint maintenance of the diversion works. While GRCC maintains ownership over the diverting works, Thayn is obligated both to receive all of his water through GRCC’s facilities and to pay one-half of the cost of mutual maintenance and upkeep of the dam. Thayn remains responsible for any other expenses for “repair of the raceway, pits and diversion works” that are made on his own initiative. Third, the 1952 Agreement gives each party the right to enter the property of the other “in connection with the reasonable use to be made by each party of the land [at issue].” Fourth, and most importantly for this case, the 1952 Agreement also establishes the priority of water rights for each party. Specifically, paragraph six of the 1952 Agreement states:
It is understood and agreed that before [Thayn] can or may use any water from said dam, diverting works or race way that [GRCC] shall ,have enough and sufficient water to- supply its stockholders. The quantity' of water to supply [GRCC’s] stockholders is to be exclusively determined by GRCC.
The. 1952 Agreement - does not make any reference to the parties’ claims to use specific quantities of water.
¶ 5 In. order to clarify the meaning of paragraph .six, on September 30,1952, GRCC and Wilson executed an amendment to the Agreement (the 1952 Amendment), which addresses the quantities of water that could be diverted by each party. 2 Specifically, the 1952 Amendment states that GRCC is entitled to 20 cubic feet per second (cfs) year-round for stock watering, and an additional 60 cfs during the irrigation season for a total of 80 cfs. Under the 1952 Agreement, Thayn, through his predecessor Wilson, claims 35 cfs for irrigation purposes and an additional 400 cfs to drive the mechanical pumps needed to deliver water to his canal. The principal issue in dispute here is whether these water claims establish fixed limits on the amounts the parties can divert, or if they merely describe the water rights the parties were claiming in 1952.
¶ 6 The parties’ water rights have changed substantially since the 1952 Agreement and Amendment were signed. At the time of the agreements, GRCC’s water right was based on an 1881 diligence claim to appropriate 20 cfs year-round for stock watering, and 60 cfs for seasonal irrigation and domestic uses, for a maximum total of 80 cfs. However, in 1974 the State Engineer determined, pursuant to a proposed determination for general adjudication of water rights in the surrounding drainage area, that the amount of GRCC’s actual need during the irrigation season is only 60 cfs. The State Engineer has determined that this 60 cfs is inclusive of GRCC’s 20 cfs year-round stock watering right, for a maximum of 60, not 80, cfs.
*1139
¶ 7 For Thayn’s part, the 1952 Amendment does not describe his current water rights either. Wilson’s water right in the 1952 Amendment included appropriation of 35 cfs for irrigation and 400 cfs to drive his mechanical pumps. However, these rights had changed substantially by 1981 when Thayn closed on the Wilson property. In 1975 Wilson obtained the right to pump 600 cfs for power during the irrigation season. In 1981, at Thayn’s request, Wilson also filed a change application with the State Engineer and received permission to use the 600 cfs to generate power year-round. Thus, notwithstanding the terms of the 1952 Agreement and Amendment, the State Engineer has determined that Thayn is entitled to 35 cfs for irrigation and an additional 600 cfs to generate hydroelectric power, and no objection to that determination has been filed, thus creating a presumptive right under our statutes.
See United States Fuel Company v. Huntington-Cleveland Irrigation Co.,
¶ 8 In 1987, Thayn received approval from the Federal Energy Regulatory Commission (FERC) to develop a hydroelectric power generation project using his 600 cfs water right. Thayn rebuilt the old pumphouse to generate hydroelectric power and the new facility went online in May 1992. GRCC alleges that as soon as Thayn’s facility was brought online and began producing hydroelectric power, GRCC began having water shortages and problems with water flow fluctuations that impeded its shareholders’ access to their water.
¶ 9 On April 28,1995, GRCC gave notice of default of the 1952 Agreement to Thayn. GRCC asserted that besides disrupting GRCC’s use of its prior water rights, Thayn has realized economic gain from the commercial sale of electrical power generated by the water diverted and conveyed by GRCC’s diversion and distribution facilities, but has refused to compensate' GRCC for the additional and unauthorized use of GRCC’s diversion works and water distribution facilities to generate that economic gain.
¶ 10 In June 1995, GRCC -instituted this action against Thayn, alleging, among other claims, (1) breach of contract for utilizing the diversion works in excess of the 1952 Agreement and Amendment, (2) equitable-relief for loss of profits, and (3) seeking an injunction to prevent Thayn from operating the hydroelectric facility. Thayn answered and counterclaimed, denying that -GRCC’s interpretation of the 1952 Agreement and Amendment precluded his -use of. the water right for power generation. As affirmative defenses, Thayn argued that the real nature of the breach of contract and injunction claims was not for recovery of damages, but was an attempt to extort profits from Thayn. Additionally, Thayn argued that GRCC had an adequate remedy at law if in fact any damages really occurred and raised the defenses of laches, estoppel and waiver. Thayn also counterclaimed for his attorney' fees and costs.
¶ 11 On June 28, 1996, Thayn filed a motion for summary judgment. Thayn argued that the 1952 Agreement was merely “descriptive” of the parties’ respective water rights and did not preclude any future water rights or usages that might arise. Thayn also asserted laches, estoppel and waiver as grounds for summary judgment, contending that GRCC was aware of Thayn’s plans to develop hydroelectric power, but never objected to those plans. GRCC filed its own motion for summary judgment on June 28, 1996, asserting that the 1952 Agreement and Amendment embody enforceable quantitative limits on each party’s water rights.- GRCC also sought injunctive relief and specific performance of the 1952 Agreement.
¶ 12 The trial court entered summary judgment for GRCC on the breach of contract issue, ruling that the 1952 Agreement and Amendment were unambiguous, certain, definite and enforceable and explicitly limited Thayn to diversion of 35 cfs for irrigation-and 400 cfs for power generation to pump the water for irrigation. The trial court further stated that the 1952 Agreement and Amendment were intended to settle the question of each party’s rights for. all time and did not contemplate an enlargement of Thayn’s 435 cfs water right. However; the trial court held that there were disputed issues of mater rial fact regarding Thayn’s affirmative defenses of laches, estoppel, and waiver that *1140 precluded summary judgment for GRCC. With respect to the claims for specific enforcement of the 1952 Agreement and Amendment and the injunction, the trial court held that an injunction was proper since there were only nominal damages to GRCC and that any damages actually suffered would be impossible to prove. ' These rulings were to take effect after the trial on the issues of estoppel, waiver, and laches.
¶ 13 Thayn then filed an application for temporary restraining order and a motion for a preliminary injunction in an attempt to prohibit GRCC from constructing a 40-foot wall extending out from its canal and into the raceway, adjacent to and in front of Thayn’s pump house. Thayn alleged that the wall would impede or block the flow of water to the pump house. The temporary restraining order was granted, but was subsequently dissolved after an evidentiary hearing on the preliminary injunction motion. The trial court denied the preliminary injunction and dissolved the temporary restraining order because Thayn could not demonstrate that he would suffer irreparable harm since any harm from the wall would be compensable through' monetary damages. Furthermore, the court held that Thayn did not have a substantial likelihood of prevailing on the merits because Thayn had no counterclaim pending that involved the wall, meaning that Thayn had no underlying claim on which he could prevail. The trial court awarded GRCC its attorney fees for successfully resisting the imposition of the injunction.
¶ 14 Following a ten-day bench trial, the trial court entered its ruling on waiver, lach-es, and estoppel, finding that Thayn had failed to carry his burden of proof on any of his affirmative defenses. The trial court also entered its rulings on GRCC’s' claims for equitable relief. The trial court ruled that GRCC owns the dam, raceway, and control gates, and that GRCC has the contractual right to use the first 80 cfs diverted through the canal during irrigation season and the first 20 cfs year-round. The trial court also held that Thayn has the right to use the next 35 cfs for irrigation during the irrigation season and up to 400 cfs during the irrigation season to pump the water up to his canal. Finally, the trial court ruled that Thayn should be permanently enjoined from using GRCC’s diversion facilities for any purpose other than for irrigation and for generating power to pump the water up to his canal unless he obtains the canal company’s express written consent and agreement to use the diversion facilities for such purposes. Thayn now appeals the trial court’s summary judgment and bench-trial rulings to this court.
¶ 15 On 'cross-appeal, GRCC argues that the trial court erred in concluding that rule 65A(c)(2) of the Utah Rules of Civil Procedure does not permit the recovery of expenses necessarily incurred in defending against a wrongfully incurred injunction. GRCC also argues that the trial court abused its discretion when it failed to require disgorgement of Thayn’s profits and that the trial court erred in finding that the radial sluice gates were appurtenant to the pump house.
STANDARD OF REVIEW
¶ 16 The trial court’s interpretation of a contract presents a question of law, which we review for correctness.
Nova Cos. Co. v. Able Constr., Inc.,
ANALYSIS
I. INTERPRETATION OF THE 1952 AGREEMENT AND 1952 AMENDMENT
¶ 17 “The underlying purpose in construing or interpreting a contract is to ascertain the intentions of the parties to the contract.”
WebBank v. American Gen. Annuity Svc. Corp.,
¶ 18 The first and most critical issue we must address is whether the trial court was correct in ruling that Thayn breached the 1952 Agreement and Amendment when he began using his 600 cfs water right to drive his new hydroelectric power facility. In granting summary judgment for GRCC on this question, the trial court ruled that the 1952 agreements were “unambiguous, certain, definite, and enforceable and limit the Defendant’s diversion of water to 435 cfs for irrigation and for power generation to pump the water for irrigation.” However, after reviewing both the agreements and the record in this case, we have reached'the opposite conclusion. We find that the 1952 Agreement and the 1952 Amendment do not, and cannot, impose a fixed limitation on Thayn’s right to put the full amount of his state-approved water right to beneficial use when such a limitation would prevent the water from being put to any use at all.
A. The References to Specific Water Rights in the 1952 Agreement and Amendment are Descriptive and Not Determinative of the Parties’Rights
¶ 19 The 1952 Agreement purports to “forever settle and put at rest [the parties’] differences and adopt[s] a permanent plan for the operation of [the] diverting works.” To accomplish this goal, the 1952 Agreement fixes the parties’ ownership of the diversion facilities and surrounding real property, establishes a scheme for joint maintenance of the diversion works, obligates Thayn to pay one-half the cost of mutual maintenance and upkeep of the dam, grants each party the right to enter the property of the other “in connection with the reasonable use to be made by each party of the land [at issue],” and establishes the priority of water rights for each party. As set forth earlier in this opinion, paragraph six of the Agreement states that “before [Thayn] can or may use any water from said dam, diverting works or race way that [GRCC] shall have enough and sufficient water to supply its stockholders. The quantity of water to supply [GRCC’s] stockholders ... is to be exclusively determined by [GRCC].”
¶ 20 The 1952 Amendment aims to “settle the meaning” of paragraph six. First, the Amendment reaffirms that GRCC has the priority of diversion and that GRCC is entitled to take whatever water is “needed” by its stockholders before Thayn is entitled to divert additional water. Second, GRCC maintains the right to decide how much water is “needed.” Third, while the Amendment states that GRCC can determine how much water is “needed,” the Amendment also states that GRCC only has a claim for the right to use 80 cfs of water. Fourth, the Amendment states that after GRCC’s water right is satisfied, that Thayn then has the right to divert that amount of water for which he had filed a claim with the State Engineer; specifically, 35 cfs for irrigating crops, and 400 cfs to drive the mechanical pumps to move the water up to his fields.
¶21 The trial court interpreted the 1952 Amendment as fixing permanently the amounts of water the parties were entitled to use in connection with GRCC’s diversion facilities. The trial court therefore granted summary judgment to GRCC on the breach of contract issue, holding that GRCC was entitled to 80 cfs and that Thayn’s use of 600 *1142 cfs to produce hydroelectric power was a breach of the 1952 Amendment. For several reasons, we find the most sound construction of the agreements in this case is to interpret the water claims specified in the 1952 Amendment as merely descriptive of the parties’ then-extant water rights, and not as determinative of their current rights.
¶ 22 As a preliminary matter, it is readily apparent, and the parties agree, that paragraph six of the original 1952 Agreement establishes only priorities of water rights and does not fix quantity. Thus, while that initial agreement claims to “forever settle and put at rest” the parties’ differences and “adopt a permanent plan” for the operation of the diversion works, such sweeping language cannot itself be construed as the basis for establishing specific quantitative limits on the parties’ water rights for the simple reason that no quantities are mentioned in the document. The 1952 Amendment serves to “settle the meaning” of the parties’ intention with respect to paragraph six, but what it settles is a question of the scope of GRCC’s priority of diversion, not the upper limits of Thayn’s future diversion rights.
¶ 23 We believe that the 1952 Amendment simply repaired a glaring omission in the 1952 Agreement, one that seriously jeopardized the access that Wilson, Thayn’s prede-eessor-in-interest, had to his water. Paragraph six of the 1952 Agreement explicitly states that GRCC can take as much water as it deems sufficient, and can unilaterally determine the amounts of water it needs before Wilson can get any water at all. We need not resort to parol evidence to conclude that the purpose of the 1952 Amendment was simply to fix the amount of water GRCC was claiming for its use in order to prevent GRCC, or its successors, from using' the broad language of the original 1952 Agreement to claim it was putting to beneficial use all of the water in the raceway — thus denying Thayn access to his water.
See Peirce v. Peirce,
¶24 We find no similar rationale in the 1952 Amendment for permanently fixing Thayn’s right at 435 cfs and barring him from making beneficial use of his 635 cfs water right to generate hydroelectric power.
[WJhere there is doubt about the interpretation of a contract, a fair and equitable result will be preferred over a harsh and unreasonable one. And an interpretation that will produce an inequitable result will be adopted only where the contract expressly and unequivocally so provides that there is no other reasonable interpretation to be given it.
Peirce,
¶ 25 The clause in the 1952 Amendment that follows the description of Wilson’s water filing explains the reference to the 435 cfs. That clause states that Wilson’s water right must be “satisfied through diversions at said dam and diverting works before any other or additional diversions-are made” by GRCC. Thayri’s right must be satisfied before GRCC can begin to divert water beyond the amount it claims to “need,” that is, 80 cfs. This language ostensibly preserves GRCC’s ability to make additional diversions beyond those amounts contained in its diligence claim. However, any such additional appropriations would be in excess of the amount the State Engineer has entitled GRCC to use.
3
It is clear that private parties cannot
create
rights to water simply by contracting to do so, although they may dispose of rights properly acquired by that means. Therefore, this clause cannot be read to impose an upper limit on the amount of water Thayn is entitled to divert. So long as GRCC’s prior right to divert the water it “needs” is satisfied (which can be no more than the amount approved by the State Engineer),
4
GRCC has no legal right to make any additional diversions thereafter and thus has no basis to complain about the amount or use of water that continues to flow past the head of its canal.
See Cleary v. Daniels,
¶ 26 GRCC has no interest in Thayn’s water rights that would support a limitation on the amount of water Thayn is entitled to use. Once GRCC receives its water and its requested payments from Thayn for one-half of the cost of joint maintenance of the diversion facilities (and Thayn has paid for his own canal improvements), all of GRCC’s rights in its facilities have been protected. Indeed, these provisions mark the boundaries of com-pensable injury in this case because Thayn’s contractual obligations have nothing at all to do with either the use or quantity of his water rights. Rather, the 1952 Agreement and Amendment are plainly concerned with establishing a long-term plan that allocates canal maintenance responsibilities to assure each party’s initial access to its water. Assuming Thayn meets all of his responsibilities under the Agreement relative to canal upkeep and repair, the actual amount of water he diverts is not GRCC’s concern. Nor does GRCC have any right to complain if Thayn changes the use of his water from irrigation to stock watering, domestic uses, or power géneration. Whatever interest GRCC has in Thayn’s access to his water ends at the foot of the raceway.
¶ 27 GRCC argues that allowing Thayn to divert more water than described in the 1952 Agreement diminishes the value of its canal ownership, which lies in the ability to exclude other users from the use of its facilities. This argument runs contrary to Utah water law, which gives water users the right of eminent domain to share in the use of existing ditches and canals. Utah Code section 73-1-7 gives any person who- wishes to convey water for a beneficial purpose the right “to use or enlarge” any existing canal or ditch, so long as the owner of the ditch is
*1144
appropriately compensated for such use. Utah Code Ann. § 73-1-7 (1989).
5
GRCC argues that the existence of a private agreement renders the statute inapplicable because the statute only controls in the absence of a private agreement.
See Gunnison-Fayette Canal Co. v. Roberts,
B. The Benchmark of the Parties’ Water Rights Is Their State-Approved Rights to Put Water to Beneficial Use
¶ 28 The right to use water in Utah has been governed by statute since 1888.
See Little,
1. Role of the State Engineer and the General Adjudication in Determining the Parties’ Rights
¶29 The legislature created the office of the State Engineer “to keep records of all established water rights and those to be acquired in the future, to supervise the distribution of the water, and to keep records of and regulate future appropriations and changes in the place of diversion, use and nature of the use.”
United States v. District Court, Utah,
[17,18] ¶ 30 Of course, “[t]he State Engineer is an executive, not a judicial officer,”
East Bench Irrig. Co. v. State,
¶ 31 The State Engineer has determined, pursuant to a 1974 proposed determination of the general adjudication of all water rights in the lower Green River drainage,
7
that 60 cfs, rather than 80 cfs is sufficient to meet the needs of GRCC’s stock holders during the irrigation season.
8
Therefore, we must resolve the tension between the amount of GRCC’s actual “need” as determined by the State Engineer and the amount of its claim in the 1952 Amendment. “[A] court must attempt to construe the contract so as to ‘harmonize and give effect to all of [its] provisions.’”
Dixon v. Pro Image,
¶ 32 In this case, the State Engineer’s proposed determination is controlling . over the parties’ water rights descriptions in the 1952 Amendment because GRCC has never filed an objection to the proposed determination; it, therefore, cannot collaterally attack that determination in this lawsuit.
See United States Fuel,
¶ 33 Recognizing that the State Engineer’s proposed determination is controlling as to the amount of water GRCC can properly claim in the 1952 Amendment amounts to persuasive evidence that the 1952 Amendment merely describes the parties’ water rights. At this point in time, the State Engineer has determined that GRCC’s water right is 60 cfs and Thayn’s is 635 cfs. To construe the contract to reduce Thayn’s right would be as illogical as to construe it to expand GRCC’s, particularly since GRCC gets its water first and has no right to use any more. Given that limitation, if Thayn cannot use his water, it would be wasted. We will not interpret the contract to yield such inequitable results.
See Peirce v. Peirce,
2. Principles of Beneficial Use Support Thayn’s Use of His 600 cfs Power Generation Right
¶ 34 Water is a resource of inestimable value to our state and we have likened “a drop of water [to] a drop of gold.”
Longley v. Leucadia Fin. Corp.,
Because of the vital importance of water in this arid region both our statutory and decisional law have been fashioned in recognition of the desirability and of the necessity of insuring the highest possible development and of the most continuous beneficial use of all available water with as little waste as possible.
Wayman v. Murray City Corp.,
¶35 The principle of beneficial use supports the decision we reach today. Thayn enjoys a state-approved right to divert 600 cfs to generate hydroelectric power. We have concluded that the contract does not restrict Thayn to the use of only 435 cfs to pump irrigation water, and allowing him to use his water rights to generate hydroelectric power ensures that our water is put to the highest and best use. Indeed, our water statutes specifically list “power development” as a beneficial use for water resources. Utah Code Ann. § 73-3-8(1) (1989 & Supp. 2002). GRCC argues that the 1952 Amendment does not prevent Thayn from using his 600 cfs, only that he must find a means to divert his water other than by using GRCC’s diversion works for any amounts above 435 cfs. However, the 1952 Agreement explicitly requires that Thayn’s water “must be diverted” through GRCC’s diversion facilities. 9 *1147 Thus, if Thayn did not use GRCC’s facilities to divert his water, he would be in explicit breach of the 1952 Agreement. Similarly, Thayn could never put the whole of his 600 cfs toward power generation because GRCC’s interpretation of the 1952 Amendment precludes any use other than pumping irrigation water, the use mentioned therein. We find that the 1952 Amendment does not impose such unreasonable restraints in outright conflict with the beneficial use doctrine.
¶ 36 GRCC’s construction of the 1952 Amendment runs contrary to beneficial use principles and would result in tremendous waste: GRCC would be permitted to take much more water than it needs and is entitled to while preventing Thayn from using all of the water that he has a right to put to a beneficial use. In
Cleary v. Daniels,
¶ 37 So long as GRCC gets its water (either 20 cfs during the non-irrigation season, or 60 cfs during the irrigation season), we see no reason to prevent Thayn from putting to beneficial use the water that will nevertheless continue to flow down the raceway, without causing any harm to GRCC. Regardless of the parties’ past contentions about the capacity of the raceway, the record reveals that the dam was diverting the same amount of water when Thayn began operating his hydroelectric facility as when Wilson signed the 1952 Agreement and there has always been enough water for both parties. The flow measurements taken by the parties reveal that, when properly maintained, the raceway has ample capacity to satisfy the needs of both water users. 10 Because we find that Thayn did not breach the contract, we need not address the other contractual issues Thayn also raises on appeal.
II. GRCC’S CROSS-APPEAL
A GRCC’s Entitlement to 'Attorney Fees and Expenses Incurred in Defeating Thayn’s Temporary Restraining Order and Motion for Preliminary Injunction
f 38 In 1999, Thayn obtained a temporary restraining order and sought a preliminary injunction to stop construction work on the 40-foot wall built by GRCC across the head of the raceway. After the hearing on Thayn’s motion for a preliminary injunction, the trial court found that any injury suffered by Thayn was not irreparable. The trial court found that any damage to Thayn’s canal as a result of the 40-foot wall could be assessed and compensated for in money damages. That is, even if GRCC’s conduct was wrongful, the appropriate relief was to seek a remedy at law, rather than -the equitable remedy of an injunction. The trial court therefore denied the application for a preliminary injunction and dissolved the temporary restraining order. At issue now is whether GRCC can recover reasonable ■ attorney fees and other litigation expenses for fighting the imposition of a preliminary injunction rather than fighting to dissolve 'the wrongfully-is *1148 sued temporary restraining order. We find that GRCC can recover its fees and expenses.
¶ 39 The Utah Rules of Civil Procedure allow a wrongfully restrained party to recover attorney fees incurred in connection with a temporary restraining order or injunction. Utah R. Civ. P. 65A(c)(2);
Beard v. Dugdale,
¶40 GRCC may also recover other expenses incurred in fighting the preliminary injunction, including expert witness fees. We see no rationale for allowing recovery of attorney fees but denying other litigation expenses. The use of costs and damages in Rule 65A(e) has always been interpreted more broadly than traditional limitations on the term “costs.”
See Mountain States Tel. & Tel. Co. v. Atkin, Wright, & Miles, Chartered,
¶ 41 Finally, we note that the preliminary injunction was not wrongfully denied. The trial court based its denial partially on Thayn’s lack of an underlying claim related to the subject of the preliminary injunction. Thayn argues that he was wrongfully denied a counterclaim that would have given him a basis for this preliminary injunction. However, this does not alter the validity of the denial of the preliminary injunction itself. The trial court primarily based its denial on the fact that any harm Thayn suffered was not irreparable. The lack of an underlying claim was not essential to the denial of the preliminary injunction, and therefore the preliminary injunction was not wrongfully denied.
B. The Trial Court’s Failure to Disgorge Thayn’s Profits
¶42 GRCC also argues on cross-appeal that the trial court abused its discretion in refusing to disgorge Thayn’s profits from the generation of hydroelectric power. Since we have already ruled that Thayn did not breach the 1952 Agreement and 1952 Amendment in diverting water to generate hydroelectric power, there is no legal basis for the disgorgement of Thayn’s profits, if any.
*1149 C. Appurtenance of the Radial Gates to the Pumphouse
¶43 At trial, GRCC argued that Thayn trespassed on its property when he removed portions of the wing wall, extended the trash racks further onto GRCC property, cut down trees on GRCC property and placed the control mechanisms for the radial sluice gates in the pumphouse. The trial court ruled, inter alia, that Thayn did not trespass on GRCC’s property when he placed the control mechanisms for the radial sluice gates in the pumphouse because the radial gates are appurtenant to the pumphouse. GRCC contends that the trial court erred in ruling that the radial sluice gates are appurtenant to the pumphouse.
¶44 GRCC bases its appeal on Thayn’s inability to prove that the radial sluice gates were a part of the pumphouse prior to 1952, and thus, were not necessarily conveyed to Wilson when he took control of the pump-house under the 1952 Agreement. Furthermore, GRCC argues that since the radial sluice gates aid in cleaning out the raceway, thus improving the flow of water to the parties, that the radial sluice gates are in fact appurtenant to the raceway, not to the pump-house.
¶45 The trial court did not err in determining that the radial sluice gates are appurtenant to the pumphouse. While the record does not conclusively establish when the sluice gates were introduced into the facilities, it is clear that they have always been under the operation and control of either Thayn or Wilson. Indeed, GRCC acknowledges that Thayn has maintained, repaired and even replaced the radial sluice gates. GRCC has never been in control of the radial gates to conduct sluicing. Moreover, while the sluicing function is necessary for both parties to get their water from the raceway, it must be noted that the sluice gates cannot be operated without the machinery and facilities of the pumphouse, which are indisputably within Thayn’s control. Finally, because both parties acknowledge that frequent sluicing has always been necessary to keep the raceway delivering water to both parties, we will not disturb the trial court’s ruling that the gates must have been in existence at the time of the parties’ agreement in 1952.
CONCLUSION
¶ 46 We reverse the trial court’s entry of summary judgment for GRCC on the breach of contract issue, grant Thayn’s motion for summary judgment and lift the trial court’s injunction. Thayn is entitled to use his 35 cfs for irrigation water and to use his 600 cfs water right to generate hydroelectric power. Until the State Engineer or the trial court in the general adjudication rules otherwise, GRCC is permitted to take 60 cfs during the irrigation season and 20 cfs during the non-irrigation season, consistent with the State Engineer’s proposed determination. The remaining provisions of the 1952 Agreement and Amendment, insofar as they relate to issues of ownership of the diversion facilities and joint maintenance thereof, shall continue to be enforceable by both parties. It should be emphasized that Thayn bears the burden under the 1952 Agreement of paying for his own improvements to the diversion facilities. GRCC has the obligation to keep its canal and diverting works clean and in good operation, but it is under no obligation to subsidize other improvements needed to guarantee Thayn access to the water needed to generate power. Consistent with the Agreement, both parties have an obligation to maintain their own portions of the diverting works so as to permit the other the full use and enjoyment of his facilities.
Notes
. While Wilson was the original party to the 1952 Agreement and Amendment, Thayn’s name is used primarily throughout this opinion to reflect that he is Wilson's successor-in-interest and the party whose rights are in dispute in this case. However, reference is made to Wilson when discussing facts specific to the situation in 1952.
. In its entirety, the single relevant paragraph of the 1952 Amendment states:
That the meaning of paragraph 6 of said original agreement [the 1952 Agreement] was intended to be that [GRCC] should have a priority of diversion, and should be entitled to take whatever water should be needed by the said first party or its stockholders before [Thayn] should be entitled to divert any water through or over the dam and diversion works; and that the quantity of water needed should also exclusively be determined by [GRCC]. However, it was and is also mutually understood and agreed that [GRCC] claims for the uses of its stockholders 80 second feet of water as particularly set forth in that certain diligence claim No. 46 on file and of record in the office of the State Engineer of the State of Utah and that after said rights are satisfied through diversion at said dam and diverting works that the water rights of [Thayn] as set forth in its water filing about to be issued by said State Engineer for 35 second feet of water for irrigation uses upon approximately 1,325 acres of land, as well as its filings for power purposes to pump said water not to exceed 400 second feet or such lesser amounts as may be approved by the State Engineer of the State of Utah shall then be satisfied through diversions at said dam and diverting works before any other or additional diversions are made by [GRCC],
. All waters in Utah are subject to appropriation by the State Engineer.
No appropriation of water may be made and no right to the use thereof initiated and no notice of intent to appropriate shall be recognized except application for appropriation first be made to the State Engineer in the manner hereinafter provided, and not otherwise.
Utah Code Ann. § 73-3-1 (1989 & Supp.2002).
. We are cognizant, of course, that the State Engineer’s determinations are necessarily subject to the powers of the courts to review them when a timely objection is filed pursuant to Utah Code Ann. § 73-4-11.
See United States Fuel Co. v. Huntington-Cleveland Irrigation Co.,
. GRCC argues that the reference to an existing "canal or ditch” precludes the use of other diversion facilities, such as the dam it owns. We note only that the dam in this case is completely passive and Thayn does not seek to alter it, but merely to use the water that the dam already diverts. Furthermore, in
Salt Lake City v. East Jordan Irrigation Co.,
. In light of our holding that Thayn is entitled to use the full amount of his state-approved water right, we need not also rule on Thayn's argument that section 73-1-7 provides an independent basis for his use of that right. We cite the statute here only to address GRCC's contention that the right to exclude others is a benefit of canal ownership.
. In 1974, the State Engineer issued a proposed determination as part of the ongoing general adjudication of the Price River and lower Green River drainage. See In the Matter of the General Determination of Rights to the Use of Water, Both Surface and Underground, Within the Drainage Area of the Green River from the Confluence of the Price and Green Rivers to the Confluence of the Green and Colorado Rivers Excluding the Drainage Area of the San Rafael River in Utah, Civil No. 690708598, in the Seventh Judicial District Court in and for Carbon County, State of Utah, Judge Bruce K. Halliday. In its proposed determination, the State Engineer determined that GRCC was entitled to only 60 cfs during the irrigation season, rather than the 80 cfs it had filed pursuant to its diligence claim.
. GRCC vigorously argues that Thayn failed to make the argument below that the State Engineer has approved its use of only 60 cfs, rather than 80 cfs. GRCC is correct, and Thayn’s counsel erred in not discovering and introducing this fact before the trial court. Nevertheless, we can take judicial notice of the State Engineer's proposed determination and proceed with our decision.
Lehi Irrig. Co. v. Jones,
. The 1952 Agreement requires Thayn to use the diversion works in order to guarantee that GRCC *1147 will receive his annual payments for joint maintenance of the raceway and diversion works.
. Both parties introduced testimony at trial demonstrating that the raceway has enough capacity to satisfy both Thayn’s and GRCC's needs. GRCC's expert witness Jack Barnett testified that he took measurements of the canal and raceway showing 532 cfs in the raceway and 692 cfs in the canal. GRCC also cites evidence of diversions up to 753 cfs. Thayn called David Hansen as his expert. In Hansen’s view, there was adequate water in the raceway to meet the 800 cfs needs of both parties, but that there was a restriction in the canal limiting the canal flow that required the canal to be. cleaned and its siphon enlarged. To the extent the ,1952 Agreement imposes requirements on each party to ensure that they keep their portions of the diversion works in a state of. operation that ensures the parties will have satisfactory access to their water, those obligations must be met.
. The amount of attorney fees and expenses recovered may not be limited by the bond posted, as Rule 65A(c)(2) expressly mandates: "The amount of security shall not establish or limit the amount of costs, including reasonable attorney fees incurred in connection with the restraining order ... or damages that may be awarded to a party who is found to have been wrongfully restrained or enjoined." Utah R. Civ. P. 65A(c)(2).