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.
District Court, Ogden Department The Honorable Mark R.
DeCaria No. 130905963
C. Wright, Jonathan R. Schutz, and Philip C. Patterson
Attorneys for Appellants and Cross-appellees
C. Barnes and Timothy R. Pack, Attorneys for Appellees and
Diana Hagen authored this Opinion, in which Judges Kate
Appleby and David N. Mortensen concurred.
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.
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
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 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
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,
"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).
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
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%.
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.
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
Near the time of his death in 1994, Scott deeded his 30%
interest to his children, Jarl, Jenna, and Lesly.
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