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Ross and Norma Allen Family Trust v. Holt

Court of Appeals of Utah

December 5, 2019

Ross and Norma Allen Family Trust, Ross Allen, Norma Allen, and David Allen, Appellees and Cross-appellants,
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.

          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 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.


         ¶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 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 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 ...

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