Allen Family Trust v. Holt

2019 UT App 197THE UTAH COURT OF APPEALS
ROSS AND NORMA ALLEN FAMILY TRUST, ROSS ALLEN, NORMA
ALLEN, AND DAVID ALLEN,
Appellees and Cross-appellants,
v.
JEFFREY HOLT, DAVID CHRISTENSEN, MILLENNIAL PARTNERS NORTH
LLC, JENNA ALLEN HOLT, JARL R. ALLEN, AND LESLY ALLEN BECK,
Appellants and Cross-appellees,
SCOTT WILLIAMS AND CHRISTINE WILLIAMS,
Intervenors and Appellees.
Opinion
No. 20180614-CA
Filed December 5, 2019
Second District Court, Ogden Department
The Honorable Mark R. DeCaria
No. 130905963
David C. Wright, Jonathan R. Schutz, and
Philip C. Patterson Attorneys for Appellants
and Cross-appellees
Edwin C. Barnes and Timothy R. Pack, Attorneys for
Appellees and Cross-appellants
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES KATE APPLEBY and DAVID N. MORTENSEN concurred.
HAGEN, Judge:
¶1 The appellants (collectively, the Millennial parties) appeal
a number of issues stemming from the district court’s finding
that the appellees (collectively, the Allens) have an established
water conveyance easement under the 1866 Mining Act. We
conclude that sufficient evidence supported the district court’s
finding that the Allens’ predecessors possessed an easement to
Allen Family Trust v. Holt
convey water from a source known as Dan’s Camp through
ditches constructed before 1896. Based on this finding, we affirm
the district court’s legal conclusion that the Allens have a right of
way pursuant to the 1866 Mining Act.
¶2 The Allens have also filed a cross-appeal, arguing that the
district court abused its discretion when it found that the
Millennial parties had not forfeited their water right by clear and
convincing evidence. Because the Allens established by clear and
convincing evidence that the Millennial parties were not putting
the water at issue to beneficial use, the district court exceeded its
discretion by concluding that the Millennial parties’ water right
was not forfeited. Therefore, we reverse and remand to the
district court to enter a judgment that the Millennial parties
forfeited their water right.
BACKGROUND 1
¶3 This appeal concerns the right to use and convey water
from collection points across land owned by the Millennial
parties to a place where it can be put to beneficial use by the
Allens. The collection and use of the water in question dates
from the 1880s when Ammon Allen settled in Ogden Valley. By
at least 1895, Ammon 2 had constructed apparatuses to divert
1. Both the Millennial parties and the Allens, respectively, appeal
and cross-appeal from a bench trial. Accordingly, we recite the
facts in the light most favorable to the findings of the district
court, presenting conflicting evidence only as necessary to
understand issues raised on appeal. State v. Cowlishaw, 2017 UT
App 181, ¶ 2, 405 P.3d 885.
2. As is our practice in cases where we reference multiple
individuals who share a last name, we refer to them by their first
name with no disrespect intended by the apparent informality.
20180614-CA 2 2019 UT App 197Allen Family Trust v. Holt
water from multiple points, colloquially known as the Garner
Springs (which consisted of the Upper and Lower springs) and
Dan’s Camp, to a parcel identified as Section 34. In 1923,
Ammon deeded the Section 34 property to his son, Abner Allen.
¶4 The right to convey water from these diversion points
was formally established by a decree from a Utah district court
in 1948 (Ogden River Decree). The Ogden River Decree
designated that Abner owned a right to convey water from
“Sheepherd Creek,” also known as Dan’s Camp, 3 and “Garner
Springs” through an “unnamed ditch” for the purpose of
irrigating land in Section 34. The conveyance of water from the
diversion points to land in Section 34 ran through abutting land
then owned by the Utah School and Institutional Trust Lands
Administration (SITLA).
¶5 In 1963, Abner’s sons, Ross, Scott, Garth, and Lawrence,
formed the Allen Ranch Company (ARC), and Abner deeded the
Section 34 property and its corresponding water right to ARC. In
1972, each of Abner’s sons collectively entered into a
twenty-five-year lease with SITLA to use the abutting property
(the servient estate) for farming purposes. The lease contained
language providing that fixtures left on the servient estate more
than a year after the lease’s termination would become SITLA
property, but it also contained a provision that the lease was
“subject to any and all valid and existing rights in [the servient
estate].”
¶6 The four sons dissolved ARC in 1977. The dissolution
agreement granted 60% of the water right to Ross, 30% to Scott,
and 10% to Garth. The only known document supporting the
3. Although the Ogden River Decree refers to “Sheepherd
Creek,” there is record evidence that Dan’s Camp is a family
name for a tributary of Sheepherd Creek. We will refer to this
diversion point as Dan’s Camp from this point forward.
20180614-CA 3 2019 UT App 197Allen Family Trust v. Holt
existence of this arrangement is a deed issued by ARC to Scott
conveying real estate and 30% of the water right. However, after
ARC dissolved, Abner issued two conflicting deeds to Ross. The
first deed granted Ross the Section 34 property along with the
entirety of the water right. Subsequently, Abner issued a second
deed granting Ross only 70% of the water right. In 1983, the
Ogden River Decree water right was renumbered to reflect that
Ross had 70% of the water right, while Scott had 30%.
¶7 Despite the apparent confusion surrounding deed
ownership and title, all parties involved acted as though issues
related to land and water were well-settled for decades after
1983, and the district court found that Abner’s deed granting
Ross the 70% water right best reflected the expectations of the
parties based on their behavior.
¶8 In 1979, Ross and his son, David, paid for and constructed
a system of pipes to convey water from the diversion points to
the Section 34 property. The pipe system generally followed the
open ditch once used to convey water across the servient estate
and was intended to improve the flow of water by eliminating
evaporation and ground absorption during conveyance.
¶9 Near the time of his death in 1994, Scott deeded his 30%
interest to his children, Jarl, Jenna, and Lesly.
¶10 In 1998, the State sold the servient estate to a company
called Still Standing Stables (SSS). In anticipation of the sale to
SSS, interested parties, including Ross, were put on notice that
any unclaimed fixtures on SITLA ground, if not claimed and
removed, would escheat to the land and be lost to the owners.
Ross and his family did not make a claim for the piping system
across the servient estate, and the district court initially ruled on
a motion for summary judgment that the piping system was
abandoned to SSS as a result. But the district court later reversed
its own ruling, instead holding that Ross and his descendants
did not forfeit the system and still had ownership over it. In any
20180614-CA 4 2019 UT App 197Allen Family Trust v. Holt
event, Ross conveyed his 70% interest in the water right to David
in 2007.
¶11 In 2008, SSS sold its land to Millennial Partners North
LLC (MPN). After MPN gained ownership of the servient estate,
the disputes between the parties began as MPN became
concerned about David and his family “gaining access to the
property in an unregulated way to maintain the easement.” In
the ensuing conflict, MPN sent letters to David to try to assert
control over access to the property, erected fences around the
property, and eventually dug up and cut the pipes with a
chainsaw to interrupt the conveyance of water to the Section 34
property. As a result of these disputes, the parties litigated a
previous lawsuit in 2009. In that case, the district court entered a
stipulated judgment with findings that David possessed a water
right at Dan’s Camp and owned the conveyance system that was
on the servient estate.
¶12 In 2011, Jarl, Jenna, and Lesly conveyed their land and
30% interest to MPN. Thus, collectively, the Millennial parties
(which include Scott’s children, Jarl, Jenna, and Lesly) have
owned the 30% interest originally belonging to Scott since 1994,
when Scott deeded the interest to his children. However, there is
no evidence that any of the Millennial parties have ever
personally put the water right to beneficial use.
¶13 Finally, in 2012, the Allens instigated the present lawsuit.
They sought a declaratory judgment affirming that they own an
easement to convey water through the servient estate to the
Section 34 property as well as the pipe system. They also alleged
that the Millennial parties unlawfully interfered with their water
right and that the Millennial parties had forfeited their water
right as the result of nonuse. Following a bench trial, the district
court agreed with the Allens that they owned a water right
easement and that the Millennial parties had interfered with that
water right. However, the district court found that nonuse of the
MPN water right had not been proven by clear and convincing
20180614-CA 5 2019 UT App 197Allen Family Trust v. Holt
evidence, and thus rejected that claim. The Millennial parties
now appeal the district court’s rulings against them, and the
Allens cross-appeal the district court’s rejection of their water
forfeiture claim.
ISSUES AND STANDARDS OF REVIEW
¶14 The Millennial parties raise numerous issues on appeal,
including whether the district court (1) erred in finding that
Dan’s Camp is a diversion point for the Allens’ water right,
(2) erred in concluding that the Allens have a right of way
pursuant to the 1866 Mining Act, (3) abused its discretion by
reconsidering and reversing its own prior summary judgment
ruling, (4) erred in finding that the Allens had not abandoned
their easement and right to convey water from the Upper Spring
diversion point, and (5) erred in finding that the Millennial
parties interfered with the Allens’ water right and awarding
attorney fees based on that interference. Despite the apparent
complexity of these issues, all of them turn on whether the
district court properly found that the Allens have a current
water right easement pursuant to the 1866 Mining Act that
includes both Dan’s Camp and the Garner Springs as diversion
points.
¶15 “We review findings of fact under the clearly erroneous
standard.” Abraham & Assocs. Trust v. Park, 2012 UT App 173,
¶ 11, 282 P.3d 1027 (cleaned up). “To find clear error, we must
decide that the factual findings made by the trial court are not
adequately supported by the record, resolving all disputes in the
evidence in a light most favorable to the trial court’s
determination.” Id. (cleaned up). However, “the ultimate
determination of whether an easement exists is a conclusion of
law, which we review for correctness.” Judd v. Bowen, 2018 UT
47, ¶ 8, 428 P.3d 1032 (cleaned up). Nevertheless, “such a
determination is the type of highly fact-dependent question . . .
which accords the [district court] a broad measure of discretion
20180614-CA 6 2019 UT App 197Allen Family Trust v. Holt
when applying the correct legal standard to the given set of
facts.” Id. (cleaned up). Accordingly, we will “overturn the
finding of an easement only if [we] find[] that the [district
court’s] decision exceeded the broad discretion granted.” Id.(cleaned up).
¶16 On cross-appeal, the Allens argue that the district court
erred in concluding that the Millennial parties did not forfeit
their water right under Utah Code section 73-1-4 by failing to
put the water to beneficial use. “Whether a water right holder
has put her water to beneficial use is a mixed question of fact
and law, and we grant the district court’s ruling significant,
though not broad, discretion.” Salt Lake City Corp. v. Haik, 2019
UT App 4, ¶ 43, 438 P.3d 913 (cleaned up). However, because
water forfeiture rulings are heavily dependent on questions of
fact, “we will reverse the court’s findings of fact only if they are
clearly erroneous.” Id. (cleaned up).
ANALYSIS
I. The 1866 Mining Act Easement
¶17 The United States Congress enacted the 1866 Mining Act,
in part, to recognize water rights acquired by owners and
possessors of those rights that were recognized by local custom,
laws, and decisions of local courts. See 14 Stat. 251–53 (codified at
43 U.S.C. § 661 (1976)); see also Jennison v. Kirk, 98 U.S. 453, 460–
61 (1878) (discussing the general purpose of the 1866 Mining
Act). To establish a water conveyance easement under the 1866
Mining Act, a “prospective grantee must possess valid water
rights under state law, and the water facilities must have been
constructed on unoccupied and unreserved lands.” Roth v.
United States, 326 F. Supp. 2d 1163, 1175 (D. Mont. 2003) (citing
Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S.
1, 12 (1896)). The parties agree that the Ogden River Decree
satisfies the first element by establishing that the Allens had a
20180614-CA 7 2019 UT App 197Allen Family Trust v. Holt
valid water right under Utah law—although they disagree about
whether that right pertains to Dan’s Camp. 4 As to the second
element, the parties also appear to agree that Dan’s Camp was
unoccupied and unreserved until 1896, when Utah became a
state. Thus, a primary dispute in this case is whether the ditches
at Dan’s Camp were constructed before 1896, as the district court
found. We are asked to determine whether that factual finding is
clearly erroneous and whether, having made that finding, the
district court properly exercised its discretion in applying the
law to those facts to determine the existence of the claimed
easement.
¶18 In reviewing the evidence supporting the district court’s
finding, we note that, because of the difficulties inherent in
proving actions regarding water use that occurred more than a
century ago, the law does not require prospective grantees to put
on “overwhelmingly clear evidence” of a water ditch’s date of
construction or location. See Eskelsen v. Town of Perry, 819 P.2d
770, 774 (Utah 1991) (declining to adopt “[r]igid standards
regarding proof” of pre-1903 beneficial water use). Utah courts
will recognize a water conveyance easement so long as it is
supported by the “best information available.” See id. Here, the
best information available supports the district court’s factual
finding that the Dan’s Camp ditches were constructed before
1896. Accordingly, the district court did not exceed its “broad
discretion” in concluding that the Allens have a water
conveyance easement at Dan’s Camp under the 1866 Mining Act.
See Judd v. Bowen, 2018 UT 47, ¶ 8, 428 P.3d 1032 (“An appellate
court should overturn the finding of an easement only if it finds
4. That the Allens had a valid 1866 Mining Act water right
pertaining to the Garner Springs is clear because those springs
are explicitly named as sources of the right in the Ogden River
Decree. The only dispute regarding the Garner Springs is
whether the Allens forfeited the right to convey water across the
Upper Spring. This issue is addressed below. See infra ¶ 22.
20180614-CA 8 2019 UT App 197Allen Family Trust v. Holt
that the [district court’s] decision exceeded the broad discretion
granted.” (cleaned up)).
¶19 The district court’s finding that the Dan’s Camp ditches
were constructed before 1896 was supported by multiple pieces
of evidence. The Ogden River Decree confirms that the Allens’
predecessors had a water conveyance easement for an
“Unnamed Ditch” under the 1866 Mining Act by at least 1895.
The Allens presented evidence suggesting that this “Unnamed
Ditch” was at Dan’s Camp. Specifically, Garth Allen testified
that the original ditch must have existed at Dan’s Camp because
the ditches had to follow the natural contours of the hillsides to
maintain elevation so that gravity would guide the water to the
Section 34 property. In contrast, the Millennial parties were
unable to offer any alternative explanation for “how the water
was conveyed” before the 1920s, when they argue the ditch was
actually constructed, even though the “distance between the
water source and the land on which it was used made it
necessary to construct facilities to convey the water.”5
Additionally, the parties previously agreed that Dan’s Camp
5. The only evidence that the Millennial parties cite to show that
the Dan’s Camp ditch was built in the 1920s is a collection of
journal entries from Elmina Allen, Abner Allen’s wife. But these
entries were written decades after the events described took
place and were not based on Elmina’s personal observations.
This caused the district court to exclude the journal entries as
hearsay absent a showing that an entry was based on personal
observation. Because the Millennial parties have not appealed
this evidentiary ruling, we do not consider the journal entries in
our weighing of the evidence. See Save Our Canyons v. Board of
Adjustment of Salt Lake County, 2005 UT App 285, ¶ 21, 116 P.3d
978 (declining to consider evidence attached to a denied motion
to clarify the record because the appellant did not appeal from
the denial of that motion).
20180614-CA 9 2019 UT App 197Allen Family Trust v. Holt
was a source for the Allens’ water conveyance easement, as
stated in the stipulated order from the prior lawsuit. 6
¶20 This evidence from the record represents the best
information available regarding the timing and location of the
original ditch’s construction, and it supports the district court’s
finding that it was located at Dan’s Camp. Based on this finding,
the district court acted within its discretion in applying the facts
to the law, specifically the 1866 Mining Act, to reach the legal
conclusion that the Allens had a water conveyance easement at
Dan’s Camp. See id. ¶ 8.
¶21 Having determined that the district court did not exceed
its discretion in finding that the Allens have an 1866 Mining Act
water right relating to both Dan’s Camp and the Garner Springs,
the other issues raised by the Millennial parties are easily
resolved. First, the Millennial parties argue that the district court
abused its discretion by reversing its prior summary judgment
ruling that the Allens forfeited ownership to the water
conveyance system on the servient estate. This contention is
based on a provision in the SITLA lease stating that any fixtures
not retrieved from the property within a year of the lease’s
expiration would escheat to the property. Under this theory,
6. The parties dispute whether the stipulated judgment acts as
res judicata and precludes the Millennial parties from disputing
whether Dan’s Camp is actually a source of the Allens’ water
right. While we acknowledge that other courts have held that
stipulated judgments can preclude parties from litigating issues
decided in the previous action, e.g., Jones, Waldo, Holbrook
& McDonough v. Cade, 98 F. App’x 740, 748 (10th Cir. 2004), it is
not necessary for us to rely on res judicata to decide this issue.
The fact that the parties stipulated to this judgment serves as an
additional piece of evidence that, when combined with the other
evidence described, adequately supports the district court’s
conclusion that the ditch was located at Dan’s Camp.
20180614-CA 10 2019 UT App 197Allen Family Trust v. Holt
after the lease expired, the water system fixtures became the
property of SITLA and that ownership later transferred to SSS
and then to MPN. But because the Allens’ water right preceded
SITLA’s ownership of the property, SITLA took possession of
the land subject to the existing water easements that burdened it,
as acknowledged by the lease. See Sullivan v. Northern Spy
Mining Co., 40 P. 709, 710–11 (Utah 1895) (explaining that a
subsequent owner who takes possession of land takes the land
subject to any water easements burdening it). The law allows
easement holders to make improvements to an easement, with
such improvements or fixtures remaining the property of the
easement holder. See Stern v. Metropolitan Water Dist. of Salt Lake
& Sandy, 2012 UT 16, ¶ 69, 274 P.3d 935 (“[T]here is a firmly
established background rule that an easement holder may make
technological upgrades to its property, so long as they are not
unreasonably burdensome to the servient estate.” (emphasis
added)); Zions First Nat’l Bank v. Carlson, 464 P.2d 387, 391 (Utah
1970) ( “[T]rade fixtures remain personalty and do not become a
part of the realty.”). So, because the Allens’ water right existed
before SITLA came to possess the property, ownership of the
conveyance system never transferred to SITLA despite the fact
that the fixtures were not removed after the lease expired. In
other words, as the district court correctly observed, SITLA
could not have transferred ownership of the system to SSS or
any other party because “the water system was never SITLA’s to
give away.” Accordingly, the district court did not abuse its
discretion by reconsidering and correcting its prior summary
judgment ruling to the contrary. See Little Cottonwood Tanner
Ditch Co. v. Sandy City, 2016 UT 45, ¶ 17, 387 P.3d 978 (“Before a
final judgment is entered, district courts have broad discretion to
reconsider and modify interlocutory rulings.”). 7
7. Any argument that the Allens abandoned the water
conveyance system due to their failure to make a claim after
(continued…)
20180614-CA 11 2019 UT App 197Allen Family Trust v. Holt
¶22 Next, the Millennial parties argue that the district court
erred in finding that the Allens did not forfeit their water right
and easement across the Upper Garner Spring. As conceded by
the Millennial parties, the Garner Springs are expressly named
as sources of the water right in the Ogden River Decree.
Nevertheless, the Millennial parties contend that the Allens
abandoned this right because “they never asked for, nor
acquired, a right to convey water from the Upper Spring” in the
prior lawsuit. However, the Allens already owned a right to
convey water across the Garner Springs—including the Upper
Spring—because the Ogden River Decree expressly granted that
right in accord with the 1866 Mining Act, so there was no need
for the Allens to ask for or acquire such a right in the prior
lawsuit.
¶23 Finally, the Millennial parties argue that the district court
erred in finding that they interfered with the Allens’ water right.
This argument also depends entirely on the Millennial parties’
assertion that no such water right existed. Having found that
such a right exists, the district court was correct to find
interference. Indeed, it is difficult to imagine a more clear-cut
case of interference with a water right than a party threatening to
shut off access to the water, fencing off the right of way, and
sawing through a pipe conveying the water to its rightful
recipients.
¶24 The existence of the water right and the acts of
interference also compel the conclusion that the district court
was correct to award attorney fees to the Allens. Utah law
provides attorney fees for the prevailing party in a civil action
brought against someone who has obstructed the prevailing
party’s “right-of-way of any established type or title for any
(…continued)
SITLA notified them of the impending sale to SSS, supra ¶ 10,
fails for the same reasons.
20180614-CA 12 2019 UT App 197Allen Family Trust v. Holt
canal or other watercourse.” Utah Code Ann. § 73-1-15
(LexisNexis 2012) (describing the tort and crime of “obstructing
canals or other watercourses”); id. § 73-2-28(2) (providing
attorney fees for the prevailing party of a civil action brought
under Utah Code section 73-1-15). And since the district court
awarded them below, the Allens are also entitled to the attorney
fees they have requested on appeal. See CORA USA LLC v. Quick
Change Artist LLC, 2017 UT App 66, ¶ 7, 397 P.3d 759 (“In
general, when a party who received attorney fees below prevails
on appeal, the party is also entitled to fees reasonably incurred
on appeal.” (cleaned up)).
¶25 In sum, sufficient record evidence supported the district
court’s finding that the Dan’s Camp ditches existed before 1896.
Based on this finding, the district court acted within its
discretion in concluding that the Allens had a water conveyance
easement from both Dan’s Camp and the Garner Springs
pursuant to the 1866 Mining Act. Further, that conclusion is
dispositive regarding the other issues that the Millennial parties
raise on appeal.
II. The Millennial Parties’ Forfeiture
¶26 On cross-appeal, the Allens argue that the district court
erred by finding that the Millennial parties had not forfeited
their water right by clear and convincing evidence. 8 Utah’s water
8. In the alternative, the Allens argue that the district court erred
in applying the clear and convincing evidence standard instead
of a preponderance standard. No Utah appellate court has yet
determined what standard of proof applies to forfeiture claims
brought under Utah Code section 73-1-4. See Butler, Crockett
& Walsh Dev. Corp. v. Pinecrest Pipeline Operating Co., 2004 UT 67,
¶ 37 n.3, 98 P.3d 1 (noting that “past forfeiture cases in the arena
of water rights have not addressed a forfeiture claimant’s
evidentiary burden”). We note that other states impose different
(continued…)
20180614-CA 13 2019 UT App 197Allen Family Trust v. Holt
forfeiture statute provides that “when an appropriator or the
appropriator’s successor in interest abandons or ceases to
beneficially use all or a portion of a water right for a period of at
least seven years, the water right or the unused portion of that
water right is subject to forfeiture.” Utah Code Ann. § 73-1-
4(2)(a) (LexisNexis Supp. 2019). 9 Because the Allens established
by clear and convincing evidence that there were at least seven
years in which the Millennial parties did not put their water
(…continued)
burdens of proof on those seeking to prove nonuse of water. See,
e.g., Staats v. Newman, 988 P.2d 439, 441 (Or. Ct. App. 1999)
(holding that a preponderance standard of proof satisfies the
requirements of Oregon’s water forfeiture statute); King v. St.
Clair, 414 P.3d 314, 316 (Nev. 2018) (en banc) (holding that the
“party asserting abandonment bears the burden of proving, by
clear and convincing evidence, that an owner of the water right
intended to abandon it” (cleaned up)). But as we ultimately
conclude that the evidence of nonuse in this case was sufficient
to satisfy either a preponderance or clear and convincing
evidence standard, we do not reach this question.
9. Until 2008, Utah law provided that the owner of a water right
forfeited her interest if the right was not put to beneficial use for
a period of five years instead of seven. Compare Utah Code Ann.
§ 73-1-4(3)(a) (LexisNexis Supp. 2007), with id. § 73-1-4(2)(a)
(Supp. 2008). The parties have not argued which version of the
statute applies to this case or whether the Allens were required
to show nonuse for five years or seven. However, as we explain
below, infra ¶¶ 27–29, the Allens established by clear and
convincing evidence that the MPN water right had not been put
to beneficial use for a period of at least seven years, so the
outcome is the same under either version of the statute. For
convenience, we apply the current version of the statute.
20180614-CA 14 2019 UT App 197Allen Family Trust v. Holt
right to beneficial use, we determine that the district court
exceeded its discretion in this regard.
¶27 Although there is evidence that Scott Allen irrigated the
servient estate before his death in 1994, David Allen testified that
he had never seen any person irrigate the servient estate from
1994 through 2011. Two former farm hands for Ross Allen
testified that they never witnessed any person irrigate the
servient estate between 1994 and 2005. Jeff Holt, the
spokesperson for MPN, admitted in his testimony that the
servient estate had not been irrigated since Scott Allen’s death in
1994. Further, in response to the Allens’ interrogatories, none of
Scott’s children—Jarl, Jenna, or Lesly—could provide any
information regarding beneficial use of the water by any of the
Millennial parties after 1994. This evidence of nonuse presented
by the Allens is sufficient to show forfeiture under either a
preponderance-of-the-evidence or a clear-and-convincing
burden of proof.
¶28 The Millennial parties do not dispute this evidence or
argue that they put the water to beneficial use themselves.
Rather, they respond that it was the Allens who put the water to
beneficial use between 1994 and 2011 in accordance with an
agreement between Ross and Scott in 1977. Thus, according to
the Millennial parties, forfeiture is not applicable because the
water forfeiture statute does not apply where “the beneficial use
of water [is] according to a lease or other agreement with the
appropriator or the appropriator’s successor in interest.” Id. § 73-
1-4(e)(i). This argument fails for multiple reasons. First, there is
unrebutted testimony from David Allen that he never used more
water than permitted by his 70% interest in the water right.
Second, the district court never found that a binding oral
agreement existed between Ross and Scott regarding water use,
and we are not in a position to make such a finding. See Gedo v.
Rose, 2007 UT App 154, ¶ 11, 163 P.3d 659 (declining to make
factual determinations bearing on standing in the absence of
“district court findings or an undisputed factual record”).
20180614-CA 15 2019 UT App 197Allen Family Trust v. Holt
Finally, even if such an agreement existed, it terminated no later
than 1985 because Ross and Scott formally segregated their
interests and Scott began to use his water right for at least a short
period, effectively abandoning the alleged prior agreement.
Therefore, this argument notwithstanding, there is no evidence
that the MPN water right was put to beneficial use between 1994
and 2011, via agreement or otherwise.
¶29 Because the unrebutted evidence at trial established non-
use for a period of more than seven years, the Allens proved
forfeiture regardless of whether the preponderance-of-the-
evidence or clear-and-convincing standard applies.
Consequently, the district court exceeded its discretion in
concluding that the Millennial parties had not forfeited their
water right.
CONCLUSION
¶30 The district court did not exceed its discretion in finding
that the Allens had an 1866 Mining Act easement to convey
water from both Dan’s Camp and the Garner Springs. This
conclusion is dispositive of the other issues that the Millennial
parties raise on appeal, and we accordingly affirm the district
court’s rulings respecting those issues.
¶31 Regarding the Allens’ cross-appeal, the district court
exceeded its discretion when it concluded that the Millennial
parties’ water right was not forfeited. Accordingly, we reverse
and remand to the district court to enter a judgment that the
Millennial parties forfeited their water right.
¶32 As the prevailing parties, the Allens are awarded their
reasonable attorney fees on appeal in an amount to be
determined by the district court on remand.
¶33 Affirmed in part, reversed in part, and remanded.
20180614-CA 16 2019 UT App 197