*1 COMPANY, LARAMIE RIVERS

Appellant (Respondent), DISTRICT,

WHEATLAND IRRIGATION (Petitioner). Appellee

No. 84-52.

Supreme of Wyoming. Court

Oct. *3 MacMillan,

Horace M. II George J. MacMillan, Laramie, Millett of Pence & for appellant. Jones, Jones, R.

William Jones of Vines Hunkins, Wheatland, appellee. & for McClintock, Gen., A.G. Atty. John D. Erdmann, Gen., Cheyenne, Atty. Asst. State Bd. Control. THOMAS,* C.J., ROSE,

Before ROONEY,** CARDINE, BROWN JJ. ROSE, Justice. brings

This appeal parties these before the court for the second time. See Wheat Irrigation land District v. Riv Laramie Company, Wyo., ers 659 P.2d 561

Background In the appeal, first we held that of contestant Wheat- (sometimes land referred Wheatland) timely to as had been filed— undertaking repairs of dam pre- does not vent forfeiture —and we remanded to the * ** January arguments. Became Chief Justice 1985. Chief Justice at of oral time question district court for resolution of the ordered that the Laramie Company Rivers which asks whether contestee Laramie Riv- survey or its successors cause a to be made (sometimes Company ers referred to determine capacity the actual of Lake Rivers) 7,263 Laramie or Laramie had failed to Hattie Reservoir below feet and to storage rights utilize its reservoir prepare capacity map to the satisfaction contested acre-feet in Lake Hattie prior State Board of May Control directive, according statutory Reservoir

and, not, whether Laramie had a lawful Issues Decision

excuse for such nonuse. appealed Laramie to the district court upon Wyoming’s In reliance nonuse wa- and the directly case was certified to this statute, 41-3-401(a), ter-abandonment court, following with the assigned issues W.S.1977,1 originated the action *4 for our review: by filing petition a the with State Board of “1. 41,100 Irrigation Does Wheatland seeking to District abandon the lack 68,500 standing to file a partial acre-feet of water which had been storage abandonment of rights the appropriated held Compa- to the Laramie Rivers by Laramie Company Rivers in Lake ny from the Laramie and Little Laramie Hattie Reservoir? permits rivers under two reservoir for the per- Lake Hattie Reservoir. The reservoir “2. Did the properly Board of Control 90,872 storage comply Wyoming by arbitrarily mits for the acre-feet for with law appellee’s disregarding the the facts as Wheatland No. 3 Reservoir to the actual amount of water are to and available for diversion downstream from Lake during question? in Hattie. It is Wheatland’s contention that statutory years having five successive “3. Did the Board comply of Control passed applied since Laramie the contested Wyoming concluding with law in that a use, appropriation water to beneficial partial storage rights abandonment of was, 41-3-401(a), under abandoned and § Lake Hattie Reservoir could be based subject therefore to declaration of elevation, aban- upon rather than the actual 41-3-401(b), donment under W.S.1977.2 quantity put § of water to beneficial use? “4. Was order of Board of Con- Proceedings Remand directing storage rights trol that all Control, upon The State Board of remand Lake Hattie Reservoir shall be aban- court, from Company this reconsidered the evidence doned if Laramie Rivers fails and, original hearing provide map certifying capacity received 18, 1983, 1, 1986, August storage rights by May ordered all of Lake Hattie Reservoir acceptable Lake Hattie Reservoir abandoned and until such time that an above map provided compliance Wyo- an feet elevation above mean sea is Further, ming level. Board of Control State law?” W.S.1977, 41-3-401(a), part, pro- legal about a § 1. In relevant water desires abandonment, present vides: declaration of he shall writing his case in to the state board of con- "Where the holder of an of wa- surface, underground original juris- ter or reservoir The board has exclusive trol. fails, intentionally water source either or un- proceed- diction in water intentionally, shall, to use the water therefrom for ings. justify, if the facts so The board ap- the beneficial propriated, for which it was superintendent refer the matter to the of the adjudicated whether under an water division where the abandonment (5) unadjudicated right, during any five suc- claimed to have occurred. The total absence having years, cessive he is considered as aban- during irrigation season of water to divert doned the water and shall forfeit all any precludes period the inclusion of such privileges appurtenant there- water computa- resulting therefrom in the nonuse * * *” to. (5) year period." of the successive five tion W.S.1977, 41-3-401(b), added.) provided: (Emphasis 2. Section might be "When water user who affected existing a declaration of abandonment of 24 abandoned, Standing tially and, No. appropriation,

Issue senior 1— therefore, reassignment threat will find that the We threat resuscitat- of the contested use beneficial ing Laramie River's abandoned water causes Wheatland to become an “af- such abridgment rights constitutes such contemplated by fected” user as is provide Wheatland’s water as will 41-3-401(b). abandonment, petitioner be- cause, triggering after understanding Essential to the of contes- (i.e., theory reap- continuing which flows from resuscitation tant’s is a awareness of plication use), it is provisions 41-3-401(a) (b). beneficial then too of § protect Particularly important late Wheatland is it to remember 41-3-401(a) the use of the contested under provides our that contes- holding tee’s statutory period nonuse for the cre- Co., Wyo., Pioneer legislature Canal P.2d 533 ates a condition has (1970); Brooks, Wyo. Sturgeon as “having described the water added). P.2d right” (emphasis Section 41-3- 401(b) explains who then it is that will be Wheatland’s Position permitted advantage to take of the “aban- * * * right” namely, “any doned bar, the appeal appellee — (em- might user who position Wheatland’s that the threat of the affected” added). phasis reapplication of Laramie River’s abandoned *5 storage rights to beneficial use would ad- standing is in Where issue non- versely affect water right Wheatland’s alleged, use is interprets Wheatland these which—for of the case bar—it provisions that, statutory say even being uninterrupted identifies the as flow though through nonuse—Laramie has — past of the contested the Lake Hattie factually right abandoned the in diversion into 3 Wheatland’s No. Reservoir question, prior to a declaration of abandon subject only to the such of interme- ment it nevertheless retains “resuscita may users in priority. diate as be privileges contemplate tion” which that brief, right the be

In the abandoned water re words its Wheatland reapplica urges through that trieved and revitalized standing it has *“ * * tion to such beneficial use as is contem protect right order its to use plated by original appropri the contestee’s previously appropriated its authority. support ation In of this auto Wheatland Reservoir from inju- No. 3 the theory, matic attend abandonment its ry which it would suffer were the Con- properties, ant “resuscitation” Wheatland testee/Appellant allowed to resuscitate Brooks, supra, Sturgeon remembers v. the water it which abandoned Irrigation Wheatland District v. Pioneer from non-use.” Co., supra. The Canal lesson these Theory opinions statutory Wheatland’s Resuscitation is that nonuse but, period forfeited, right renders a Concerning standing petition for abandonment is filed until not 41-3-401(b), abandonment under where § resumed, after beneficial use is forfeiture the “water user” must found be to have of the not declared. will “affected,” argues been that is a appropriator downstream which We Sturgeon discussed and Wheatland possessed is and, of an opinion unsatisfied District in our first being supplemented that through light importance cases these upstream, understanding nonuse Laramie par- appellee’s theory River’s 41-3-401(a). frequently upon by word 3. A relied Webster’s Third New Interna- appellee describing remaining right Dictionary gives or tional as one of its definitions privilege following five-year apparent a contestee such "resuscitate”: "to revive death contemplated by nonuse abandonment as is or unconsciousness.” ap- enlarge their reservoir to its said time we appeal, in this what abandoning than propriated Irri- size rather repeating. Wheatland there bears Compa- excess over its Rivers v. Laramie gation 566-567, capacity. we said: This court reversed present P.2d at ny, 659 of the district court’s affirmance Brooks, P.2d at 683- Sturgeon “In order and declared Board of Control’s 684, this court said: “ ‘* * * of the to be abandoned. the excess point, say at this might We Brooks, we Commenting Sturgeon ac that he Sturgeon testified plaintiff said: the reservoir land on which quired the “ ‘ * * * in 1936 or question is located questions dealt One of the here question The reservoir whether or not with in the ease was use for five put not been had storage had his the owner to use put and were previously prolonged disuse of the because six Yet he or 1952. waited until 1951 he had not of the reservoir. We held bring years before teen seventeen declaration of for the reason no formal forfeiture, that action of ing an had theretofore been ob- twice Brooks had the defendant after or the district tained from board and had recom the reservoir repaired said, however, “that if court. The testi use the water. menced to had been the action for forfeiture outlay, but mony does not disclose put Brooks brought before [defendant] plaintiff the fact judging from use, court again into the reservoir contribute offered to Sturgeon had justified, if not con- have been would repair of the dam to the $500 forfeiture,” strained, to declare by Brooks reservoir, expenditure has Inasmuch as there P.2d at 684. at least substantial. have been must relating change in the statute no been years to or seventeen Waiting sixteen time, see matter since would, for forfeiture bring an action W.S.1957, 41-47, the rationale of face, an unreasonable on its seem be *6 here, persuasive particularly case is time, the facts especially in view of the hold indicated above we and as added.) (Emphasis just stated.’ erred district court and the board explain that on to “The court then went within additional time Pioneer granting put to not been reservoir water had the (Em- enlarge reservoir.’ which to the use, might not have been result the added.) at 540-541.” 464 P.2d phasis we said: same when Dist. v. Horse Creek Conservation Accord “ ‘* * * herein for may be conceded P.2d Co., Wyo. Land Lincoln case, that this purpose if (1939). been had action for forfeiture bar, injury to the case In reser- put Brooks brought before right to i.e., the contestant’s — use, would the court again into voir flow have the con- justified, been have diversion, satisfac- aid in the to Hattie Lake strained, to declare forfeiture.’ un- long-standing tion of Wheatland’s added.) (Emphasis not occur reservoir fulfilled —could v. Pi- District Irrigation “In Wheatland re- rights were until the abandoned Co., 464 P.2d 533 Wyo., oneer Canal late then be too (when it would suscitated confronted with (1970), were later we in abandon- petition to for the contestant (like the case before fact situation under ment here) petition a forfeiture where court Co., we are supra) unless Pioneer Canal ap- had been the water filed before resusci- say that the threat prepared to There, both use. its beneficial plied to abridgement an effective constitutes tation the district Board of Control right. existing reservoir of Wheatland’s Canal Com- that the Pioneer found court way: thought this puts period of Wheatland have a reasonable pany should “If the required Contestant was to be to interest.’ County Platte Grazing Asso- actually injury suffer that reapplica- ciation, supra (emphasis at 1283-1284 [the tion of water to prior added). beneficial use] obtaining standing pro- to institute this “Several other recent Wyoming cases re- ceeding, they give would up have to their requirement iterate the appropri- an cause of they action before could assert allege ator be prove injury able it.” right his water in order to be vested with standing an abandonment ac- The contestant’s propo- rationale for this See, tion. Cremer vs. State Board expressed sition is in its brief as follows: Control, (Wyo.1984); 675 P.2d 250 Budd “If the holder waits vs. Bishop, [Wyo., 543 (1975)]. P.2d 368 until after the senior is resuscitated Cremer, In gen- Court discussed the by being again put use, once he body eral regarding of law standing, and longer no claim the benefit of the earlier concluded requiring proof injury non-use, period of no matter how exten- prerequisite as a complaint to a in aban- was, sive it subsequent because the re- simply application donment was use of the earlier reestablishes it rule, historic 675 P.2d at 256.” validity had, with all the it would have had continually it been used since its Rivers, thus, Laramie mainly upon relies inception.” our decisions in Platte County Grazing Association v. State Board of Laramie River’s Position supra, and Cremer v. State Board Con trol, Wyo., (1984), 675 P.2d 250 to defeat response, Laramie says Rivers grounds on the that Wheat- Wheatland: land, junior appropriator, is unable to You have not identified a water identify a water that will be “affect being abridged that is through refusal to i.e., ed” abridged “injured”5 by reason 4— you only point to — a benefit abandon— ever-present reapplication threat of abandonment, and benefit without to beneficial use. Laramie goes on to ar injury associated is insufficient to struc- gue only that the result of abandonment standing ture under County Platte will be to “benefit” the Wheatland No. 3 Grazing Association v. State Board of required jurisdictional Reservoir absent the Control, Wyo., 675 P.2d 1279 proof injury existing to an right. specifically, More Laramie Rivers de- reasons, For says appellant, these position scribes its inway this its brief: possessed Wheatland is not factor, “The stressed the Court [in petition partial for the abandonment of the *7 Platte County Grazing Association], is storage rights. Lake Hattie jurisdictional, statutory requirement which present must be appro- before one County In Platte Grazing Associa priator petition tion, can for abandon- we held junior appropriator that the against ment rights the water of anoth- downstream standing contestants lacked * * * er. majority opinion of 41-3-401(b) Justice under because the § explained, Rose further complainant ‘the that, in facts that though case reveal even must, in order to appropriate vest the the contestee using was not the water for boards jurisdiction and courts with “the beneficial for which it was petition, hear his be able to allege appropriated” contemplated by as 41-3- prove 401(a) that his water has been in- in that the applying senior was all of jured, i.e., abridged by the use or misuse appropriated only water to one-half of that the contestee makes of the water in the land authorized its appropriation which the contestant protective has a (thereby making the contestee’s water 4. As contemplated by the word “affected” “injured” County 5. As is utilized in the Platte 41-3-401(b). Grazing opinion. Association

27 703, (1962); right eligible a declaration of abandon 7 L.Ed.2d 663 v. Warth Sel were, ment), din, 490, 2197, 2205, 422 the contestant’s water U.S. 95 S.Ct. 45 nevertheless, abridged (1975); Village therefore L.Ed.2d 343 Arlington of standing purposes. Heights Metropolitan not “affected” for v. Housing were Devel County Grazing opment 252, Association Corporation, The Platte 429 97 U.S. 555, 561, (1977). opinion was fact-oriented the sense that S.Ct. 50 L.Ed.2d 450 It personal the record in that case revealed that the is the stake the result which guarantees return to the complete adversary same amount of water would a full and through misapplication presentation as would of the Spratt stream case. v. Se curity Buffalo, have returned were the water have been Bank Wyoming, of Wyo., 130, (1982); applied contemplated by the contestee’s 654 P.2d 134 In the authorization; hence—no in Rights Matter Various Water is, rights. Reservoir, jury Wyo., to the contestant’s water Lake DeSmet 623 P.2d course, 764, (1981); Morton, conceded that the water 767 Sierra Club v. 727, 731-732, County Grazing 1361, 405 of the contestant Platte U.S. 92 S.Ct. 1364, 636, (1972). Wy Association would have 31 L.Ed.2d 641 benefited abandonment, oming personal the con this stake declaration of has been de ‘tangible as a impossible found it to demonstrate scribed interest at stake.’ testants Control, Cremer v. Board the use to the contestee was State which 250, (1984); Wyo., 675 P.2d 254 any way abridging Washak putting its water was County ie School District Number One contestants. The the water of the Herschler, 310, Wyo., v. 606 P.2d 316 County Grazing the Platte Associ sense of (1980), 824, cert. denied 449 U.S. holding standing complain is that ation 86, S.Ct. 66 L.Ed.2d 28 It has contemplates ability plead prove an requirement asserting that one been our right. injury to the contestant’s water Ac ‘sufficiently an issue affected to in cord Cremer v. State Board of justiciable controversy is sure that a supra. presented to the court.’ Cremer State Concerning Decision Control, supra, P.2d at Board Standing Wheatland’s 254; County Washakie School District Herschler, supra, Number One In International Association Fire P.2d at 317.” Fighters v. Civil Service Commission of Department City Chey- Fire that, The record shows the case at bar enne, Wyo., 702 1297-1298 P.2d here, question for the five Thomas, (1985), special- in his Chief Justice of the water in con unidentified amount concurring opinion, the law ly summarized test, might have been law otherwise standing when he Hattie, said: fully to Lake ran down diverted where it was utilized various aspect

“A of the doctrine of stream fundamental Irriga including Wheatland press appropriators, an issue those who res No. 3 Reservoir.6 That allege personal stake in the out tion District’s must ‘a ervoir, storage with its acre-feet controversy.’ Baker v. come capacity, 186, 204, authority, filled to Carr, has never been 369 U.S. S.Ct. 6. One of the follows: "A. years Project we had it has there. cases, would be we would have less We have used this water in the been used on the Wheatland sure added to the And in those to benefit the probably past, detriment *8 appellee’s witnesses testified as years. since supply. if we lost that to the ’73, It crops supply has, including crops in a number of that we raised a number of of water Irrigation we water, '73, raise, that The fact one the Laramie Rivers initiate the abandonment "Q. reservoir is what “A. One thing * * * Weber, ^[*] thing that it was a threat Mr. in ^[*] particular prompted it.” particular ^[*] Company? what ^[*] proceeding that that prompted you Was there ^[*] to our prompted prompted Vi against No. it? it? 3 28

including years part possessed those when at least a must be of a is right water that the contested Lake Hattie water was not being abridged (misappli- either misuse being pur diverted for that reservoir’s cation), County as was the case in Platte Therefore, poses. whatever Wheat- Association,7 Grazing jun- or nonuse as the standing has to here land assert comes out appropriator ior pursuit contends here. In of Laramie’s nonuse of its water rather question of the answer to which wants misapplication than misuse or as was the to know whether or not Wheatland Grazing County case Platte Association. possessed abridged right, of an water we is also Laramie conceded that Rivers’ pause to that it princi- reiterate is sound alleged nonuse a benefit resulted ple of water law this state holds which appropriation. Wheatland’s unsatisfied that statutory provision “affected” under a Granting that the benefit would flow to 41-3-401(b) containing only language can § Wheatland from a declaration of abandon pertain abridgment to an of the contes- ment, whether Board the State of Control’s right. tant’s water refusal to declare a forfeiture would have abridgment appropri resulted in such to its We are aware of the school standing petition ation as would furnish thought which holds that a water need user question for abandonment is only show that his will be “benefited” opinion. must be decided in this standing order to 41- establish under § standing This turns the issue for this 3-401(b). legis We are also aware that the appeal inquiry: into this lature has amended the that statutes so junior Does a contestant downstream any system bring user on the now appropriator possess reservoir standing However, appeal abandonment. is de this bring partial abandonment under 41-3-401(a) upon (b) cided § before 41-3-401(b) against appropria- a senior § amendment, and under these statutes tor junior where the undertakes to estab- predecessors, their as well as the relevant lish that his is “affected” court, decisions of aban this from benefit (as contemplated by 41-3-401(b)) by § donment, without attendant from apply senior’s failure to water to misuse, factually nonuse or insufficient statutory period beneficial use for the standing to establish abandon time under facts which show ment. Cremer State Board of (a) junior’s existing water supra; County Grazing Platte Association historically has been unfulfilled Control, supra. v. State Board of by the stream whether the flow senior not, diverts the water or contested standing denying Dist. Mitchell Irr. (b) the flow of undiverted contested Wyo. Whiting, P.2d to more nearly ap- will serve (1943), appro where a senior downstream proximate the fulfillment of the reser- priator sought to abandon the water authority voir down- junior upstream of the user and appropriator? stream senior receiving was shown all the entitled, he was quoted to which possessed We will hold that we standing Kinney abandonment. and Water ed., 1377, Rights, 2d 789: § “ * * * The Standing Decision’s Rationale long prior as appropriator ‘So 41-3-^01(b), To Be Under The § qual Affected satisfactory obtains all the Abridgment To the Right Must Be Water ity appropria extent his full tion, he to interfere requirements has no 41-3-401(b) petitioner complain enjoyment mandate of the 41-3-401(a), added) appro- (emphasis Under the holder of an ed" for the five successive Therefore, having priation contemplated "is considered statute. situation, right” appropriate if he to use the water under an fact fails abandon- "for *9 appropriat- it was ment come from misuse as well can as nonuse. beneficial

29 subsequent appropriators of the (Em- invoke statutory procedure.” the * * * See, added.) also, phasis stream.’ v. 92 P.2d at 580. Clough 371, 17 453; 2Wing, Ariz. P. Albion-Ida Co., In Hagie v. Lincoln Land 18 ho Company Land v. Naf 637, F.Supp. 639 (D.C.Wyo.1937), where al., 439, Cir., Company et 97 F.2d Wyoming’s abandonment statute was un- added.) (Emphasis 444.” at 136 P.2d der consideration and the facts revealed 508. junior rights that the contestant’s were ten miles downstream from those contes- Campbell In Wyoming Development v. being proof any tee—there no that such Co., 140, 347, 124, Wyo. 100 P.2d reh. enlarge abandoned water would the rights 347, 102 Wyo. (1940), denied 55 P.2d 745 we or even reach lands of the contestant— said: the federal district court said: may “Before a party attack the “ * * * It by is claimed the defendant another, either on constitutional or other plaintiff that legally qualified is not grounds, he must show that he first challenge to rights of the de- has a in- which has been himself fendant because of the that he fact does thereby. He inter- vaded must have an within provisions come of the (Emphasis est which affected.” add- eligible statute one present a con- ed.) 122-422, W.R.S.1931, pro- test. Section In Horse Conservation Dist. v. Creek ‘When, part: vides in pursuant to the Co., Lincoln Land P.2d at where 122-421, provisions any water user the facts that disclosed down- might by who be affected a declaration stream would contestant not have received of existing rights, the water in because issue of the distance desires to about a legal declaration properties between the of the nonuser abandonment, present shall of such he contestant, those of the we said: in writing his case of con- board “Finally, returning open- again to the trol.’ ing in words the sentence last above respect urged “In of this statute it is statute, quoted procedural plaintiff from wise that the no affected 122-422, supra, ‘when, pursu- Section by through use of water defend- 122-421, provisions any ant to the manner been ant which has above might by water user who a plaintiff If it be held outlined. that affected ’ abandonment, etc., declaration it is through of water is affected the use word, that the italicized creek, on Fox miles defendant ten below manifest ‘af- ’ fected, significant is both and control- plaintiff’s land under facts in this ling. case, pure It indicates our mind that it theory would mean purpose open plaintiff was not legislative place position in a must be- person rights. the door to come a of defendant’s whomsoever contestant prac- this case from the proceedings procure undertake evidence standpoint rather conclusive- tical shows declaration abandonment. Those ly plaintiffs could no rights that the proce- who are authorized to use the way injuriously otherwise be affected dure set Sections 122-422 forth by the exercise of the defendant 122-427, W.R.S.1931,inclusive, only are (Em- appropriation.”8 claimed those whose “ * * * would be ‘affected.’ added.) phasis F.Supp. 639. means, evidently Our statute therefore, party’s Cremer State Board i.e., abridged would be with these way, some 675 P.2d at we concluded changed thoughts: disadvantage, to his he Hagie quote that all It is to be noted in this We understand abandonment. context, references, opinion Lincoln Land Co. that writer of the to the water in this are being plaintiff (by refers to ment) affected abandon- plaintiff. rights” plaintiff’s being and "the affected *10 abridgment

“We therefore reiterate the historic rule rights of the water of a “water (which nothing Transposed hand, is more than the of user.” law to the case at standing applied junior users in an this means that when a downstream appropriator charges such as proceeding) appro- abandonment that an upstream appropriator nonuse, senior priator’s rights are not ‘affected’ for satisfy standing requirements, in order to purpose bringing of the contestant must be able to that show rights changed unless those are to his right “abridged.” its disadvantage. [Emphasis added.] words, other he has to be able to show (For Right Wheatland’s Water injury. [Emphasis original.] A wa- Standing Purposes) may bootstrap standing ter user purpose bringing abandonment of right What does Wheatland’s water neighbor’s his when the consist of? The facts reveal that Wheat- only effect of the abandonment would be right land’s is a authorizing reservoir cer enlarge the contestant’s storage capacity tain which is downstream distinguished protecting his from the Laramie Rivers reservoir previously use appropriated junior long his and thereto. As as senior users stream, Rivers, including water.” on the Laramie applying are their available entitlements to County In Platte Grazing Association by appro beneficial use called for their v. State Board 675 P.2d at priation, this totality describes the of that 1283, we reaffirmed these historic water- means, if it in Wheatland’s —even rights concepts when we said: case, storage appropria that its reservoir’s contemplating meaning “When however, Clearly, tions remain unfulfilled. 41-3-401(b), supra, we held in the § options the statutes envision other Cremer case that ‘affected’ means ad- junior are available to an unfulfilled water- versely injured—it connotes a affected— rights appropriator upstream where the abridgment use which results in an user fails to divert its authorized water contestant’s water as com- according appropriation authority. Par pared to an rights. enhancement of those ticularly options are these where available saidWe in order that a user be a contestee’s failure to divert results in the ‘affected’ so as to have downstream contestant’s fuller utilization abandonment, complaining user rights, its water the threat of resus must be able to show that the contestee by reapplication citation to beneficial use utilizing his water to the disadvan- jeopardize serves to contestant’s tage the water the contes- utilize such abandoned water for tant. fulfilling appropriation. Indeed, “In reaching these conclusions we were standing, order to establish the contestant merely summarizing reiterating old abridg need not have suffered the ultimate and familiar rules of this court as aswell doing ment which would flow from his rules of other courts which have been nothing reapplies until the contestee aban approval. considered with Hagie See v. doned beneficial use. Where the Co., [supra]; Lincoln Land Mitchell v. injury threat of inevitable irretrievable Whiting, supra; Campbell Wyoming exists, awaiting to his water and his Development Co., [supra]; Horse Creek falling of the axe would itself serve as Co., Conservation Dist. v. Lincoln Land engine foreclosing any effective [supra].” added; (Emphasis emphasis in protect appropriation, effort to his omitted.) original appropriator need not await the fatal blow. Therefore, 41-3-401(b) speaks when upon He act the threat might about a probability “water user” who be “af- which is fashioned fected” contemplated by the nonuse the contestee will return the water to bene 41-3-401(a), it has reference Kearney ficial use. See Lake Land & *11 Company Reservoir v. Lake De Smet Res- be declared where beneficial use has been Company, Wyo., ervoir 475 P.2d 548 prior filing reinitiated to the of petition. theWith rules of Irrigation Wheatland noted, As we relevant have statutes v. Pioneer Canal Co. and Stur- provide appropriator that where the fails to mind, geon Brooks in it can be seen that use the “for purposes water the beneficial reapplication of Laramie water Rivers’ (for appropriated” which it was five to beneficial use would have the effect of years), having “he considered aban- depriving of Wheatland the contested res- 41-3-401(a)) right” (§ doned the water and storage However, ervoir water. to order anyone by would who be “affected” a dec- the abridgment establish which is contem- abandonment, may, laration of under 41- § plated 41-3-401(b), by the contestant § 3-401(b), present his case the State need not wait until can longer he no assert pursuit Board of Control declara- rights. his Therefore, tion. once water rights senior statutory fall status This is the into the of abandon- conclusion which must be 41-3-401(a), ment for upon nonuse under but any reached careful consideration of § prior by to a declaration the nonuse standing provisions of 41-3- § of the State “injury” Board 401(a) (b). and illogical would indeed be junior a appropriator downstream with for this court to to recognize jun- refuse 41-3-401(b) it is concerned when § appropriator ior “injury” under facts which provides only that “affected” water users show the senior appropriator’s five-year may “present writing,” case in is the [the] apply failure to beneficially water to its injury junior appropriator’s to the designated use in circumstances which re- right the ever-present that results from junior possessed veal that the a water possibility may, that contestee at satisfied, being that nearly or more time, resuscitate its satisfied, through the senior’s failure to through reapplication to use. beneficial divert. The consequence holding of such a bar, In the case Laramie Rivers’ reser- say the only would be users who eligible voir right is for declaration of aban- standing have to assert under by donment contestant Wheatland because five-year junior are nonuse statutes those injury the threat Wheatland’s reser- appropriators downstream who are receiv- everpresent voir in view of the fact ing they water than that to which are less reapplication that the of the abandoned wa- by entitled reason of excessive and invasive ter to beneficial use Laramie Rivers part upstream appropriators. use on would have effect of final and ultimate deny standing This down- would deprivation appellee’s right to the con- appropriators stream whose water tested Laramie Rivers water. This is jeopardized by ever-existing are threat say injury standing to return the contested water to beneficial day ripen does not until the when nec- only use. Not would this constitute an essary proof (which may be made illogical concerning conclusion the nonuse would at the when occur moment Laramie statutes, 41-3-401(a) (b), and § reapplied the contested water to beneficial refusing inter- would have the effect use), it is clear that the contestant must pret in accord their these statutes rely upon therefore an undeclared water- plain language public-policy purpose. support abandonment to his public-water policy We identified the use context, again contention. this we refer when, Wyoming state Hereford Irrigation rules Wheatland Dis- Co., Packing Wyo. Ranch v. Hammond Co., supra, trict v. Pioneer Canal 764, (1925), 236 P. we said: Brooks, Sturgeon supra, where we held principle underlying “A fundamental that, though even irrigation all the qualified laws is that available for abandonment before benefi- resumed, supply cial far as use is abandonment will not should be used as (2d Kinney Irrigation possible. that is on Issues 3 and h Ed.) 1118.” Actions Taken the Board of identified the legislature has also Control Remand policy the state when it public-water prior opinion, At the conclusion of our spoke of the “Nature of District v. Laramie 41-3-101, W.S.1977, beneficial use” *12 Co., 659 P.2d at we said: Rivers part: where it is said relevant Irrigation “We hold that the Wheatland “A water is a to use the filed, timely District’s and was state, when such use has water of not, may the Board of Control as was acquired by applica- the beneficial been case, done this circumvent the clear under the laws of the state tion of water 41-3-401(a), language pro- which § thereto, relating conformity and in may only vides that a forfeiture be avoid- regulations dependent the rules and by application ed of water to beneficial thereon. Beneficial use shall be the ba- use. Therefore there left is for resolu- sis, limit of the the. measure and question tion the which asks whether the * * at all times *.” use water contestee has failed to its water use 41,100

rights to the contested acre feet in Conclusion way directed of this state laws applicable and, to such matters if such upstream ap- nonuse of a senior Where affected, use has not been whether there propriator’s rights urged is a defense to such nonuse as is contem- grounds for abandonment under 41-3- § plated by law. 401(b) situation with we are —the “Reversed and remanded with directions prerequi- concerned the case bar—a to the district court that it remand to the standing contemplates site to that the con- Control, directing Board of serving testee’s undiverted water is contes- findings Board make of fact on the basis right. tant’s unsatisfied water Given these it, of the evidence it had before and to circumstances, injury to contestant’s water necessary take further evidence ever-present danger from the results purposes determining if there had probability and that the contestee will one provi- been an under the abandonment day prerogative exercise its of resuscitat- sions of the first sentence of 41-3- § ing right by reapplica- the abandoned water 401(a), W.S.1977 and the last sentence of use, thereby depriving tion to beneficial 41-3-401(b), W.S.1977.” § contestant’s lawful utilization of the aban- 41-3-401(a) pro- The first sentence of § doned water. See Wheatland appropriated vides that the nonuse of wa- Co., supra, District v. Pioneer and Canal years ter for five successive results Brooks, (discussed Sturgeon supra in- appropriation: of such abandonment fra). parenthetically observed “Where the holder of an that, circumstances, in these “benefit” and surface, underground water from a or “injury” become different sides of the fails, reservoir source either inten- same coin. tionally unintentionally, or to use the wa- We hold that threat resuscitation ter therefrom for the beneficial appellant’s rights, reservoir under the appropriated, for which it whether ease, facts of this constitutes such adjudicated unadjudicated under an Irri- reservoir of Wheatland (5) right, during any successive five gation it District as to furnish with stand- years, having he considered as aban- ing petition in under and doned the water and shall forfeit by authority provisions of the 41-3- privileges appurte- all 401(a) (b), nant thereto.” W.S.1977. 41-3-401(b)

The last sentence sets out Engineer’s limitation, State i.e., action defense to an for a declaration of level the reservoir never up came abandonment: to or rose above Elevation feet. “The total absence of water to divert irrigation “12. THAT the

during an evidence precludes season shows that during (1972, each of the period inclusion of such of nonuse contest 1973, 1974, 1979), computation 1975 and resulting therefrom in the water was (5) priority available in period.” year successive five diversion into the Lake Supply Hattie Canal Lara- remand, State Board of mie River into the Lake Hattie Sup- reconsidered the evidence which had re- ply Canal No. from the Little Laramie original hearing ceived during this River over and above the amounts actu- evidence, case. this Based on review of the ally diverted the Laramie Rivers Com- the State Board Control issued its final pany. *13 containing following findings order the of “13. THAT had the Laramie Rivers fact: Company diverted the full amount of wa- adjudicated storage “4. the THAT ca- ter year during available to each the 68,500 pacity Hattie of Lake Reservoir is times the Lake Hattie storage Reservoir (60,000 acre-feet acre-feet under Permit priority 1972, 1973, were in during 8,500 plus No. 1372 Res. acre-feet under 1974, 1979, 1975 and the reservoir stor- Res.). Permit No. 1373 age capacity fully would have been more 5, 1972, April “5. Wyoming On then utilized and water would been have Engineer, Floyd Bishop, State A. im greater stored at an elevation than Ele- posed storage a Lake limitation on Hattie 7,263 vation feet. Reservoir because concerns over the * * “14. THAT close a examination of the n . The safety of dam the amount of case, permit record in this the documents storage limited amount was Res., Permit Nos. 1372 Res. and up could be stored Eleva maps proofs and the filing appro- and 7,263 level, tion feet above mean sea priation permits, filed these indi- 27,400 approximately was stated to be storage cates that an accurate total ca- storage. acre-feet of active pacity for Hattie or Lake Reservoir the petition “6. THAT the this case seeks 7,263 storage capacity at Elevation feet against a declaration of as appears cannot determined. storage difference between the full storage this examination that active ca- capacity of Lake Hattie Reservoir and pacity at this elevation be considera- storage capacity by limited 27,400 bly more than the acre-feet refer- 5, 1972, (Eleva- April Engineer State Engineer’s safety enced in the limi- State feet) tion 7263 which was stated to be 5,1972. April tation order of This is also = 41,100 (68,500-27,400 41,- acre-feet the amount referenced the Wheatland 100). for dec- n ; n n n n * * * ” sfs partial laration of abandonment. years placed “9. THAT in contest at findings, Based on these factual 1972, 1974, 1973, the hearing were State Board Control reached and entered parties stipulated 1979. following conclusions of law: storage during water was unavailable for “4. THAT fact of non-use Lake 1976, 1977 and 7,263 Hattie above Reservoir Elevation sjs n : n n n n ! feet years for five successive when wa- “11. ter THAT evidence shows that was for diversion stor- available (1972, 1973, during age compels contest the State Board Control 1979), storage 1975 and no water was to declare of all an abandonment level, stored in Hattie to leave unaf- Lake Reservoir excess above that but map certifying capacity provide storage below said fected by May 1986 and until such the reservoir elevation. map provided. acceptable as an time un- Board of Control is THAT the “5. specific amount of to determine able Availability Storage Water remaining capacity or storage Company con- Appellant Laramie Rivers Reservoir, in Lake Hattie unabandoned engineer’s limitation tends that state portion or retained is abandoned or what 5,1972, full use April rendered the order Res. or Permit No. 1372 under either impossibili- storage appropriation an of its 1373 Res.” ty, just as if no water had been available by the State Board of The order issued According appellant, its stream. reads: Control 7,263 to store water above feet failure HEREBY THAT all “IT IS ORDERED neither intentional nor unin- elevation was Hattie Res- store water Lake 41-3-401(a), required by tentional as 7,263 feet ervoir above the Elevation engineer. mandated the state hereby DE- mean sea level is above Therefore, concludes, appellant the limita- * * *. ABANDONED CLARED equivalent order was to the total ab- tion THAT the FURTHER ORDERED “IT IS storage feet of water for above sence Company its succes- Laramie Rivers under appellant and afforded defense survey made to deter- shall have a sors 41-3-401(b) to the action for a declara- Hattie capacity of Lake mine the actual of abandonment. tion A 7263 feet. Reservoir below Elevation *14 agree premise under- cannot with We to the satis- map prepared shall then be position. limitation lying appellant’s * * The Board of Control. faction of State prevent appellant order itself did prepared and sub- map This shall be storage rights; making full use of its water 1,May prior to the Board mitted rather, the deteriorated condition of map the Board Receipt of the will enable storage of water. The prevented dam permit per- to amend the Lake Hattie engineer directing ap- from the state letter order supplemental and to issue a mits provides in limit its use of water pellant to fixing quantity of water abandoned part: quantity remaining, in acre-feet. and the know, observing you “As we have been by May map If the is not submitted Hattie of the dam at Lake the condition storage no further of water will be closely during past season. rather appropriation until an allowed under the of the dam and deterioration Erosion acceptable map is submitted.” facing on the dam indicate the concrete appeal that Laramie Rivers contends on in method need for some limitations has not com- the State Board Control during the the reservoir operation issued in plied with this court’s mandate In the interests of forthcoming season. Irrigation District v. Laramie necessary to safety, I feel it is public Co., supra. Specifically, Laramie Rivers storage that of water impose a limitation asserts that the State Board Con- Rivers limited to the in the reservoir shall be arbitrarily capriciously and when trol acted approximately present elevation amount of it failed to determine the actual 27,- approximately represents feet. This into Lake water available diversion storage. of live 400 acre feet fiveyear period ques- during Hattie immedi- limitation is to take effect “This tion; it state law when violated in effect until such ately and will remain upon elevation ordered abandonment based program has re- as a rehabilitation time quantity of water rather the actual than works to a paired the dam and outlet use; put to and that it acted beneficial condition.” completely and useable safe authority when it ordered that excess of its simply recognizes the fact that This order in Lake Hattie would be storage rights all precludes the safe of the dam failed the condition appellant-contestee if the storage appellant’s privileges full for water appurtenant” (emphasis added) Lake Hattie. appropriation. to an only defense proceed- to such forfeiture appropriator an When fails use ings, where nonuse of water is established storage available water because its or di years, proof five successive properly version facilities have not been contestee of total absence of water “[t]he maintained, losing it risks its water during to divert irrigation season.” in an action for a declaration of abandon added.) (Emphasis 41-3-401(b); Section Wyoming ment. In Ranch v. Hereford Co., Matter North Compa- Laramie Land Packing supra, Hammond we af Wyo., (1980); ny, 605 P.2d 367 Yentzer v. a decree firmed of abandonment where the Hemenway, Wyo., 440 P.2d 7 contestee had failed to use available water Thus, proper decree of abandonment is statutory period for the “ * * * not limited quantity the actual of water permitted had its ditches to be diversion, available for appellant sug- grown up grass come filled and gests, may dispose of an appro- entire they brush until had become useless and priation where the contestee made no use almost obliterated.” 236 P. at 766. of the water and failed to show no appropriator duty An has a to maintain its water was available. reservoir or in a diversion facilities condi- bar, appellee the case at Wheat- In tion which allows it to use the water avail- sought land a declara appropriation. able under its Failure to do tion appellant’s of abandonment as to so constitutes a failure to use for the rights to store Lake Hattie above appro- beneficial for which it was 7,263 Appellee an elevation of feet. stated priated and can result the forfeiture of 7,263 storage capacity above feet to be 41-3-401(a). the water under § Appellant presented acre-feet. no engineer The fact that the state evidence of the total absence of water for recogniz the instant case issued an order storage during above that elevation ing inadequacy appellant’s storage fact, appellant’s five contest. *15 cannot shift responsibility facilities the engineer year established that in each wa appellant’s nonuse of the water to the state 7,263 storage ter was available for above hold, therefore, engineer. We the feet, that such water to was allowed limitation order did not appellant’s excuse pass by the diversion structures. Accord fully failure to use the water available un ingly, storage rights Laramie Rivers’ appropriation der its and did not constitute appropriated that volume of water in ex 41-3-401(b) a defense under to the action 7,263 capacity cess of reservoir at feet for a declaration of abandonment. elevation, 41,100 in but not more than the Appellant makes an additional ar in petition, acre-feet indicated were sub gument concerning availability of wa ject to a declaration of abandonment. storage. According ter for appellant,

the State Board of Control had an obli Volume Stored Water gation to determine the exact volume of appellant agree with We available, used, storage but not Irriga appellee-contestant, during years in contest and to declare District, the burden of establish tion bore rights appellant’s only ing in Lake the actual volume of water that extent. 7,263 represented by an elevation of Hattie statutes, however, storage

Our do not envision a feet. Proof of such volume deter piecemeal rights appellant abandonment of water mines the extent to which failed water, figure, quantity actually appropriated on the of water to use its which based turn, portion appellant’s 41-3- in available for diversion. Under identifies the 401(a), storage rights subject are to a decla the failure to use water when avail- Appellee, how- able can result the forfeiture of “all ration of abandonment. ever, ted the or to what calculation of the volume of did not establish whether by appellant during to use the stored extent Laramie Rivers failed contest, 41,100 acre-feet of water contention. The difference between actually tied its abandon- the State Board of Control volume stored the reservoir 7,263 appellant’s ment order to elevation: feet and the amount of portion total constituted the THAT all “IT IS HEREBY ORDERED appellant’s storage rights which were right to store water in Lake Hattie Res- 7,263 subject to abandonment. Instead of mak- above the Elevation feet ervoir ing precise necessary hereby DE- these determinations mean sea level is above * * order, V’ to a valid abandonment the State ABANDONED CLARED issued an order which Board Control purports this order to abandon Because leaves Laramie Rivers with unknown water rights appellant’s water to an underter- rights, rights subject change as the extent, the Board of Control mined State changes, reservoir floor and with a conse- authority it. had no to issue quent impairment ability engage of its property Appellant has a vested apportioning among its business adjudicated rights to store interest its abridges appel- its members. Such order 68,500 acre-feet of water in Lake Hattie proper lant’s vested water without irrigation Reservoir each season. See factual basis and will not be allowed to Quinn Co., v. Ranch John Whitaker stand. 367, (1939); Wyo. Enterprise 92 P.2d 568 Furthermore, Willis, Irr. 135 Neb. 284 N.W. the State Board Dist. long appellant compensate As used this cannot for these Control proof by ordering water for beneficial for which deficiencies the contes- underlying storage appropriated, it was tee Laramie Rivers to furnish needed subject were not to abandonment. proving data. The burden of nonuse of 41-3-401(a). Therefore, declare pro Section appropriated water in abandonment partial rights, abandonment of these ceedings Ramsay rests on the contestant. State Board of Control first had to deter Gottsche, Wyo. 69 P.2d 535 mine the actual volume of water which (1937). The acted State Board Control appellant properly Appellant had used. impermissibly duty it when shifted this proceedings only stood to lose in these its by ordering prepara Laramie Rivers appropriated to that volume of map tion of the contour needed to establish in excess of the amount used. capacity reservoir below feet.

The State Board of Control admitted its inability specific to determine the volume brief, the State Board of actually properly of water used a contour Control contends that needs *16 appellant during years in contest. map of the floor of Lake Hattie Reservoir However, the State Board of Control at- purposes, appel and that for administrative tempted problem by to resolve this declar- required should be to furnish such lant ing right all to store abandoned water map regardless of whether the abandon by feet in and order- above elevation upheld. We portion ment of the order is map ing appellant prepare to a contour can understand the State Board of Con might from which a more definite order for the information a contour trol’s need issue. map of the reservoir would afford. How ever, complete find that the sanction of we order,

The as it abandonment now appellant’s rights withdrawal of water for stands, not, meaningless. and is does prepare map failure to constitutes an cannot, much of the reveal how water of dis abuse of the State Board Control’s appellant and much it lost how retained. cretion, adjudicated appellant holds figures, where To know these the State Board of rights apparent compliance map obtained Control needed a contour of the floor existing permit- requirements at the time. of the reservoir which would have with (resuscitating) We reverse the State Board of Control’s its use evidences the contin abandonment, ued existence adjudication until order of and remand this of abandonment. Wheatland furnishing of appellee ease for District v. Laramie Company, Rivers with to opportunity an establish the ele- Wyo., (1983); 659 P.2d 561 Ir necessary a meaningful ments order of rigation Co., Pioneer Canal partial abandonment. Wyo., 464 (1970); P.2d 533 Sturgeon v. Brooks, Wyo. (1955); 281 P.2d 675 ROONEY, Justice, specially concurring, Horse Creek Conservation Dist. v. Lin CARDINE, Justice, joins. with whom Co., Wyo. coln Land 92 P.2d 572 I Although appellee believe has the required standing institute abandonment 2. The (resusci- “threat” of reactivation proceedings, I agree do not rea- tation) present on the after day the five opinion soning by majority which the finds years say successive of nonuse. To that it standing. opinion such majority The does triggers standing is redundant. The stand- so because there is “threat of resuscita- ing occurs without “threat” as as soon tion,” causing appellee’s thus years elapse the five require- the other standing present. ments for are i.e., “water to have the — water flow Lake Hat I find part appellee of diversion, tie to aid the satisfaction of (1) from the facts that five successive long-standing Wheatland’s but unful of had elapsed nonuse when the n * rights— instituted, filled proceedings reservoir abandonment were (2) appellee presented the matter disagreement My reasoning with this of fashion, Board Control a timely and twofold: (3) appellee “might was a water user who Appellee’s do not en be affected” of declaration abandon- compass appellee’s right appellant’s to use appellant’s ment rights. Appellee abandoned water until the abandonment is junior appropriator appellant, is a adjudicated. 41-3-401, W.S.1977,1 Section appellee’s rights regularly have not been that, states when an conditions for aban fulfilled. occur, donment the water is “con parties The the majority seem to abandoned, sidered” to be then have trouble with the re- existence speaks procedure “legal declara quirement “might appellee user tion of and of abandonment” notice hold be affected” view some our hold- ers “sought of water aban ings. I do not. I do not believe that we doned,” a hearing to determine the fact changed position have the historic on this very abandonment. fact that aban point. my Before explaining under- proceedings donment can be forestalled af standing of in previous the law as set forth five-year ter by reactivating court, interval holdings of this some concerns 41-3-401, W.S.1977, existing pertinent rights, 1. Section read in desires abandonment, about a case, part, controlling as of the this legal time declaration he shall follows: writing present his case in to the state board "(a) original Where holder of control. The board has exclusive surface, underground water from a or jurisdiction reser- pro- in water fails, intentionally voir unintentionally, source either shall, ceedings. The board if the so facts *17 use to the water therefrom justify, superintendent refer the matter to the for the beneficial for which it was of the water division where the abandonment appropriated, adjudicated under whether an is claimed to have The total ab- occurred. unadjudicated right, any (5) during or five during irrigation divert an sence water to years, having he is as successive considered precludes any season inclusion such right abandoned water water and shall forfeit all period resulting of nonuse therefrom in privileges appurtenant there- (5) year computation five successive * * * to. "(b) period.” any might When water user who be af- by a fected declaration of abandonment of he has a call on ten cubic background affected since which form a should be noted thirty-five per second of water in a fair feet just reach a our efforts to for only a per cubic feet second stream with in such cases. conclusion twenty per feet second call ahead of cubic Nebraska v. The decision in State of holdings carry him him. Our would have 589, 65 S.Ct. Wyoming, 325 U.S. State of showing an him of effect on burden (1945), pertains to 89 L.Ed. 1815 as The burden would be the abandonment. actions, kept must be abandonment D, much for and since E can definite- easier in an abandon- mind. The water involved appropriation, his ly show unfulfilled useable under ment must be shown to be apparent. standing would be A new with adjudication. lawsuit another majority and the concern parties The changes since state as a result of another “inju- themselves with the use of the words be the benefit of this state. to ry” they pertain to the and “benefit” duty The Board of Control has 41-3-401, word “affected” W.S.1977 regulate and administer the use (see 1). Although “injury” fn. and “bene- bring water. It can an abandon- state’s synonymous, they mean the fit” are not right. action in its own Substantive ment thing as far as result is concerned same rights of citizens should not be lost because the context of their use and of the use to the properly failure to administer the word “affected” the statute. When cannot rights. water The courts several by the one would be benefited abandon- “stealing” beyond legal make of water statute, right of a water under the he ment misapplication or the one’s water right injured if the is reactivated would be right. a water Conversely, if one and not abandoned. Finally, specific injured by with failure to abandon a a concern be would reactivated, whereby right, illus- it is he proceedings in abandonment can be by the would be benefited abandonment. right prior is to B’s wa- trated: A’s water makes no difference whether the result C’s; prior is right; prior ter B’s is C’s “might or as is described as be affected” D’s; prior and D’s is to E’s. Each has a “might “might or as in- be benefited” be right per from the to ten cubic feet second jured.” normally only thirty-five There stream. is (including return per cubic feet second of recent cases have caused The facts flow, etc.) supply in the B does stream. emphasize injury language therein to per not use five cubic feet second for five the conte- aspect of the abandonment on years. holdings re- consecutive Our have stor, holding in such the thrust of sufficiently A “affected” to fused to find more at the word cases has been directed against gets affected,” B. He his phrase “might be “might” B water first. Whether or not takes his holdings simply require that and such A’s water specula- full allotment does not “affect” be direct and not or benefit anyone making right. Although probable. or Almost C’s water tive B’s, normally any Wyoming in the state of appropriation is not use of water his 2. Section amended, declaration of abandonment" any ter user who tion of abandonment the subsection: (among injured by and the amendment also added the rights under this section: "(b) ing declare water user who ^[*] * * other the abandonment 41-3-401(b), effective the reactivation of the water might things) following persons have stand- the state be benefitted May might be affected * * * W.S.1977 language from "when 23, 1985, board of control to or who to "when existing by a declara- (fn. following might 1) change right,” wa- That said Supp.1985). reference to ty from the same tled to through equal the ty of § 41— “(ii) "(i) date of March right sought to be abandoned has a Any person to or The holder surplus in this dissent is not 41-4-324, petitioning 3—401(b)(i) which abandonment from the same source of or is the holder of valid junior in date of consistency source of 1, 1945, who has valid of a valid water and W.S.1977 under W.S. 41-4-318 (ii), or earlier." and constitutionali- a supply priority to abandon a advisory adjudicated sought; which is supply permit priori- (Cum. enti- *18 “affected,” “might” “injured” First, be or “bene- tions: the surplus base and water way by fited” some Schmid, abandonment of a Inc. are being right. holdings water abridged by Our limit the avail- appellants’ the utilization of ability procedure of the abandonment contemplated water by their corre- directly sponding those to be by appropriations. affected the result. Secondly, it would be necessary to abandon appel- In County Grazing Platte Association lants’ base in order to effect aban- Control, Wyo., v. State Board 675 P.2d surplus donment of their rights, water (1984), petitioners in abandonment surplus and the (§ 41-4-324, water law proceedings junior were in appropriation to supra) prohibits its utilization for the respondents. petitioners failed to purpose taking or diverting other than injury show a direct to their water if surplus water.” i.e., the petition granted, was not they short, failed peti- to show a direct benefit if I nothing find previous our granted. opinions tion was The failure to make a inconsistent with the basis set showing by junior similar forth appropriator upon above and which I concur with Bishop, Wyo., existed Budd v. the result 543 P.2d reached majority opinion. (1975), although Appellee primary junior was a appropriator concern constitutionality surplus against was the of the water user wa- which the abandonment legislation. ter proceedings Cremer v. were Appellee’s State Board instituted. Control, Wyo., (1984) appropriation 675 P.2d 250 Thus, also has not been fulfilled. surplus legislation concerned the water he can show a direct should his appropriation petition denied, the effect it had on or, date abandonment said surplus way, water to which the another he can show a direct benefit appurtenant. granted. water We held A, B, with an senior to statutory surplus could not use his 1, 1945, of March to establish a

position as B purpose for the of an proceeding. Again, we any injury

found or benefit to the senior appropriator to be other than direct. And Wayne F. KURPJUWEIT and Luann M. recognized surplus legislation we Kurpjuweit, Country Town & d/b/a water3, surplus to concern and its relation- Tavern, Harvey, Appellants and Dora ship to holding the result of the in State of (Defendants), v. Wyoming, supra. Nebraska State of pages We concluded at 257-258 Cremer NORTHWESTERN DEVELOPMENT supra: State Board of COMPANY, INC., Wyoming a hold, then, surplus “We that the (Plaintiff). corporation, Appellee law does not authorize its utilization for No. 84-264. purpose bestowing junior appropri- standing upon ator a base senior Supreme Wyoming. Court of Schmid, appropriator such as Inc. in or- 15, Oct. appropriator der that such senior establish that he is ‘affected’ within the

purview of the abandonment statute. holding contemplates proposi-

This these surplus right by appropriations granted, 3. The establishment have been whether legislature in 1945 concerned water in a permit by adjudicated decree as of March drainage system 41-4-318, which is 1945.” W.S.1977. " * * * granted time in excess of the surplus total to the extent of required existing amount appropriations to furnish to all per seventy one cubic foot second for each acres system from said stream having pre-March rights. to lands 1945 water maximum amount of water for which all said