Arave v. Pineview West Water Company , 2020 UT 67 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 67IN THE
SUPREME COURT OF THE STATE OF UTAH
ROGER B. ARAVE AND KIMBERLY L. ARAVE; JANET SOUTHWICK,
TRUSTEE; VENTURE DEVELOPMENT GROUP, LLC,
Appellees,
v.
PINEVIEW WEST WATER COMPANY,
Appellant.
No. 20180067
Heard November 13, 2018
Filed October 15, 2020
On Direct Appeal
Second District, Ogden
The Honorable Ernie W. Jones
No. 130907544
Attorneys:
John H. Mabey, Jr., David C. Wright, Salt Lake City, for appellees
Edwin C. Barnes, Timothy R. Pack, Emily E. Lewis, Salt Lake City,
for appellants
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Roger B. and Kimberly L. Arave, Janet Southwick, and
the owners of the Snowberry Inn bed-and-breakfast (collectively,
Plaintiffs) each have decades-old water rights that allow them to
meet their own water needs. They divert their water through the
use of two wells. Pineview West Water Company has a much
larger, junior water right that allows it to supply water to seventy
single-family homes and irrigate over twenty acres of land.
ARAVE V. PINEVIEW
Opinion of the Court
Pineview operates five wells that are much deeper and stronger
than those of the Plaintiffs. The Plaintiffs claim that Pineview has
interfered with their water rights because when one of Pineview’s
wells operates (Well 4), it lowers the water table and puts the
available water beyond the reach of their pumps. After a bench
trial, the district court found in favor of the Plaintiffs on their
claims of interference and negligence.
¶2 Pineview appeals, raising the following issues. With
regard to the Plaintiffs’ interference claims, Pineview asserts the
Plaintiffs did not establish interference because they did not prove
that they were unable to obtain some amount of their respective
water rights and that their means and methods of diversion were
reasonable. Pineview asserts that the Plaintiffs’ negligence claim
should fail because they did not bring it against the proper
parties. And finally, Pineview argues that even if the Plaintiffs
properly prevailed on their interference and negligence claims,
the district court incorrectly calculated damages.
¶3 We reverse the district court’s determination that
Pineview interfered with the Plaintiffs’ wells. We do not disturb
the court’s ruling on negligence. However, we remand that claim
to permit the district court to consider whether it survives the
dismissal of the Plaintiffs’ interference claims and to make
additional findings, if necessary. We vacate a portion of the
Plaintiffs’ damages award. And we remand the district court’s
calculation of the remaining damages and imposition of forward-
looking remedies for the court to determine if and how they are
impacted by the dismissal of the Plaintiffs’ interference claims.
BACKGROUND1
The Parties
¶4 Roger B. and Kimberly L. Arave are joint owners and
residents of a single-family residential property. They own a
water right with a priority date of 1963. The Araves’ water right
allows them to divert 0.45 acre-feet2 of water annually at a flow
__________________________________________________________
1 “On appeal from a bench trial, we view and recite the
evidence in the light most favorable to the [district] court’s
findings.” Utah State Tax Comm’n v. See’s Candies, Inc., 2018 UT 57,
¶ 5 n.2, 435 P.3d 147 (citation omitted).
2The acre-foot is “the standard unit of measurement of the
volume of water,” which is “the amount of water upon an acre
(Continued . . .)
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rate of 6.7 gallons per minute to supply water for single-family
domestic use3 and two livestock units.
¶5 Janet Southwick, as trustee, is the sole owner and resident
of a single-family residential property. She owns a water right
with a priority date of 1978. Southwick’s water right allows her to
divert one acre-foot of water annually to irrigate 0.25 acres of land
and supply water for single-family domestic use.
¶6 The Araves and Southwick share the Arave Well as the
sole diversion point for their year-round water rights. The Arave
Well was drilled in 1963 to a depth of 187 feet with perforations
from 140 to 170 feet. The perforations are entirely in an aquifer
called the Norwood Tuff.4
¶7 Venture Development Group, a limited liability
company, is the sole owner of a residential property that operates
a commercial bed-and-breakfast known as the Snowberry Inn. It
includes nine bedrooms, nine bathrooms, two kitchens, and serves
as the year-round residence of the Inn’s operator. Venture owns
two water rights with priority dates of 1960 and 2017. Venture’s
original water right allows it to divert 0.45 acre-feet of water
annually at a flow rate of 6.7 gallons per minute to supply water
for single-family domestic use. However, Venture had been using
more water than it had lawfully appropriated, and it was using
the water in ways that were not permitted under its original water
right. So in 2017, it applied to appropriate additional water. Its
new water right, acquired pursuant to a change application,
covered one foot deep, equivalent to 43,560 cubic feet.” UTAH
CODE § 73-1-2.
3 One domestic unit permits a water right holder to divert 0.45
acre-feet of water to meet the indoor supply needs of five people.
4 There are two local aquifers relevant to this case: the
Norwood Tuff and an area of unconsolidated material that lies on
top of it. While the Norwood Tuff is a consolidated bedrock
aquifer, the unconsolidated material consists predominantly of
sand, gravel, and cobble. The unconsolidated material generally
has greater permeability than the Norwood Tuff, meaning that
fluid is able to pass through it more easily. But the area of the
Norwood Tuff surrounding the three wells is likely fractured,
which increases its permeability. The intensity and extent of the
fracturing are unknown.
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ARAVE V. PINEVIEW
Opinion of the Court
allows Venture to divert an additional 3.25 acre-feet of water for
irrigation and commercial use at the Snowberry Inn.
¶8 Venture diverts water year-round from the Snowberry
Well, which was drilled in 2001 to a depth of 133 feet. Its
perforations are from 105 to 125 feet and span both the Norwood
Tuff and the unconsolidated material on top of it. The well likely
gets the majority of its water from the more permeable
unconsolidated material, but it is hydrologically connected to the
Norwood Tuff. The Snowberry Well is equipped with a pump
that has the capacity to pump twenty-five gallons per minute. The
pump transfers water into a cistern, which then pumps water into
the Snowberry Inn. The cistern is equipped with sensors that turn
the pump on when the water level inside the cistern drops below
a certain point and then signal the pump to turn off when the
cistern is full.
¶9 While the Plaintiffs use their water rights to meet their
own domestic and business needs, Pineview is a small water
company that owns and operates five wells, including the one at
issue here—Well 4. Pineview’s water rights are almost thirty-three
times larger than the Plaintiffs’ rights combined,5 and it supplies
water to seventy single-family homes and irrigates over twenty
acres of land. But its rights are junior to all of the Plaintiffs’ rights
except the latest one that Venture acquired. Its earliest right,
modified by a change application, has a 2003 priority date. The
state engineer’s approval stated that modification was “subject to
prior rights.” In 2013, the state engineer approved a new change
application, allowing Pineview to divert additional water.
Pineview may divert its water from any combination of the five
wells.
¶10 Well 4 is located approximately 700 feet from the Arave
Well and approximately 460 feet from the Snowberry Well. It was
drilled in 2004 to a depth of 738 feet with four perforated zones
from 58 to 98 feet, 208 to 228 feet, 408 to 448 feet, and 648 to 738
feet. Well 4 draws water from both aquifers, but most of its water
__________________________________________________________
5 Pineview’s 2003 water right allows it to divert 90 acre-feet of
water annually to irrigate 21.66 acres of land and supply water to
fifty-five single-family domestic units. Its 2013 water right allows
it to appropriate an additional 78 acre-feet of water annually.
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likely comes from the Norwood Tuff. Well 4 is equipped with a
pump that has the capacity to pump 100 gallons per minute.
The Dispute
¶11 When Well 4 was tested for the first time in 2004, it
affected the Arave Well almost immediately. Within hours, the
Arave Well was unable to pump any water and began sucking air,
resulting in silt damage to the Araves’ and Southwick’s property.
So the test was cut short. The Arave Well recovered within a day
or two following that initial test. But a subsequent test produced
the same result.
¶12 Nevertheless, Pineview later began regularly pumping
Well 4 during irrigation season, from early July until September.
When Well 4 was operating, the Arave Well was once again
unable to produce water. Eventually, the Snowberry Well had
trouble as well. It had traditionally been able to fill its cistern
within fifteen minutes. But with Well 4 operating, the Snowberry
Well struggled for hours to complete the same task.
¶13 In the beginning, the parties resolved this problem
amongst themselves. Pineview agreed to connect the Plaintiffs to
its water supply and provide them with culinary water for a flat
rate of $20 per month. Once the Araves and Southwick began
using Pineview’s water, the Araves removed the pump from the
Arave Well and no longer used it to obtain water. Instead, they
used it as a monitoring well to gather data regarding the impact of
Well 4 on the water level.
¶14 Several years later, Pineview sought to increase the
Plaintiffs’ fees to match those paid by its other water users. The
parties tried to reach an agreement regarding new fees, but those
negotiations broke down and this suit followed.
¶15 The Plaintiffs sued Pineview, asserting causes of action
for interference with water rights, negligence, and nuisance.6 In
their complaint, they sought injunctive relief, damages, and
attorney fees.
__________________________________________________________
6During the final day of trial, the district court asked whether
nuisance was actually a claim in this case. Although the Plaintiffs
argued that it was, the court’s findings of fact and conclusions of
law do not address this claim. And it is not before us on appeal.
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ARAVE V. PINEVIEW
Opinion of the Court
The Final Amended Judgment
¶16 Following a four-day bench trial during which the district
court heard expert testimony from both sides, the court ruled in
favor of the Plaintiffs on their interference and negligence claims.
In support of the verdict, the district court entered findings of fact
and conclusions of law.
¶17 The district court found that neither the Arave Well nor
the Snowberry Well had ever experienced difficulty diverting
water before Well 4 began pumping. But when Well 4 was in
operation, the court found that it created a cone of depression that
encompassed both the Arave and Snowberry Wells. The district
court explained that a cone of depression is an “underground area
of reduced soil saturation [that] is in the shape of an inverted
cone, with the point of the cone extending downward toward the
point at which the water is extracted. . . . [T]he depth of the water
table will be most significantly impacted at the point of extraction
. . . .” (Quoting Bingham v. Roosevelt City Corp., 2010 UT 37, ¶ 3, 235
P.3d 730.) The actual shape of a cone of depression varies
depending on the nature, depth, and permeability of the
surrounding aquifer.
¶18 The district court noted that the Arave Well is a “very
good surrogate” for Well 4 because it reacts “quickly and
accurately” when Well 4 is operating. But the impact on the
Snowberry Well is more complex. The district court found that the
Arave Well is hydrologically connected to the Snowberry Well.
When Well 4 operates, it immediately draws down the water level
of the Arave Well. When the elevation of the Arave Well head
falls below that of the Snowberry Well, water is drawn away from
the Snowberry Well. As a result, the Snowberry Well “struggles to
produce even a minimal yield.” Recovery time for both wells
varies based on several factors.
¶19 The district court concluded that Pineview was liable for
interference with the Plaintiffs’ water rights and negligence. The
court acknowledged that an aquifer’s water level is influenced by
various factors, including seasonal fluctuations and the amount of
water withdrawn by pumping wells. And it found that there had
not been a general decline in the groundwater levels where the
wells are located.
¶20 But the district court ultimately concluded that pumping
Well 4 dewatered the aquifer to such a degree that it temporarily
reduced the level of water available to the Plaintiffs’ wells. In
particular, when Well 4 was pumping, it deprived the Arave Well
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of “virtually all water” and obstructed the Snowberry Well’s
ability to produce water. After determining that the Plaintiffs’
means and methods of diverting water were reasonable, the court
concluded that Pineview should bear the costs associated with
rectifying the interference.
¶21 The district court also found that before expanding its
water right in 2017, Venture had used more than its allotted share
of water, thereby violating the terms and limitations of its original
water right. But the court rejected Pineview’s argument that this
should bar Venture’s ability to prevail on an interference claim.
Instead, the district court noted that the state engineer may
remedy any such violations by commencing an action under the
relevant statutory provision.
¶22 As to negligence, the district court ruled that Pineview
was negligent in locating, drilling, and using Well 4 in a manner
that interfered with the Arave and Snowberry Wells. According to
the court, harm to the Plaintiffs was foreseeable because Well 4 is
located near the Plaintiffs’ wells, it draws water from the same
aquifers that the Plaintiffs use, and it operates at a much larger
capacity.
¶23 As a forward-looking remedy, the district court ordered
Pineview to stop pumping Well 4 unless and until it could
demonstrate that Well 4 could operate without interfering with
the Arave and Snowberry Wells. The court retained jurisdiction to
determine whether the wells could coexist and to fashion an
appropriate remedy based on the outcome of that determination.
In the event that interference proved unavoidable, the district
court stated that it may order Pineview to provide replacement
water to the Plaintiffs at Pineview’s sole expense.
¶24 The court also awarded compensatory damages. It
ordered Pineview to refund all of the fees that the Plaintiffs had
previously paid for water service. It also included the cost of a
new pump and associated accessories for the Arave Well as well
as costs that Southwick and Venture had incurred due to hard
water damage to their property. In sum, the district court
awarded $11,503 to the Araves; $5,782 to Southwick; and $28,238
to Venture, along with post-judgment interest at the statutory
rate. The Plaintiffs, as prevailing parties, were also entitled to
$2,059.96 in costs.
¶25 Pineview appealed. We have jurisdiction pursuant to
Utah Code section 78A-3-102(3)(j).
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ARAVE V. PINEVIEW
Opinion of the Court
STANDARD OF REVIEW
¶26 A determination of interference with a water right is a
mixed question of law and fact. See Wayment v. Howard, 2006 UT
56, ¶ 9, 144 P.3d 1147. When reviewing mixed questions, “we
typically grant some level of deference to the district court’s
application of law to the facts.” Id. The level of deference afforded
varies based on the issue being reviewed. Searle v. Milburn Irr. Co.,
2006 UT 16, ¶ 16, 133 P.3d 382. Here, “because the issue of
interference is extremely fact dependent, we grant broad
deference to the district court.” Wayment, 2006 UT 56, ¶ 9. The
same is true of a determination of negligence. “[A] negligence
finding is a classic finding that, while mixed, calls for deference to
the lower court.” In re Adoption of Baby B., 2012 UT 35, ¶ 43, 308
P.3d 382.
ANALYSIS
¶27 Water has been characterized as the “very life blood” of
Utah. Fairfield Irr. Co. v. White, 416 P.2d 641, 644 (Utah 1966).
Recognizing water’s importance as a vital resource in our arid
state, Utah statutory and case law have been crafted to maintain
the flexibility necessary to meet changing circumstances and
promote optimal beneficial use of our water supply. See id. at 644–
45; see also Wayman v. Murray City Corp., 458 P.2d 861, 863–65
(Utah 1969). But our statutory law also protects appropriators of
water in order of seniority. See UTAH CODE § 73-3-1(5)(a). The
balance between protecting senior appropriators and maximizing
the beneficial use of water has led to several rules of water law
that can sometimes seem to be in tension with one another.
¶28 We begin by identifying those rules. We then explain
how they combine to establish the elements of a prima facie case
for interference with a water right. Finally, we determine whether
the district court’s findings sufficiently support its determination
of interference.
I. INTERFERENCE
¶29 “All waters in this state, whether above or under the
ground, are . . . the property of the public, subject to all existing
rights to the use thereof.” UTAH CODE § 73-1-1(1). A person
seeking to acquire the right to use the state’s unappropriated
waters must apply for and receive approval from the state
engineer. See id. § 73-3-2(1)(a).
¶30 Appropriators are prioritized according to the dates of
their respective water rights. See id. § 73-3-21.1(2)(a). In practice,
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this means that except in times of a temporary water shortage
emergency, “each appropriator is entitled to receive the
appropriator’s whole supply before any subsequent appropriator
has any right.” Id. § 73-3-21.1(2)(a); see also id. § 73-3-1(5)(a)
(“Between appropriators, the one first in time is first in rights.”);
id. § 73-3-8(1)(a)(ii) (stating that the state engineer must consider
whether the proposed use will impair existing rights when
approving an application to appropriate). Generally, a cause of
action for interference lies where a junior appropriator’s use of
water diminishes the quantity or quality of the senior
appropriator’s existing water right. Bingham v. Roosevelt City Corp.,
2010 UT 37, ¶ 48, 235 P.3d 730.
¶31 If a junior appropriator interferes with a senior
appropriator’s water right, the junior appropriator has the right—
at his or her own expense—to replace the senior appropriator’s
water. Id. ¶ 63; see also Fairfield Irr. Co. v. White, 416 P.2d 641, 645–
46 (Utah 1966) (upholding the district court’s order requiring
defendant to supply replacement water as being supported by the
evidence). This protection also extends to a senior appropriator’s
“right to continue use of his [or her] existing and historical
method of diverting the water.” Wayment v. Howard, 2006 UT 56,
¶ 13, 144 P.3d 1147.
¶32 When rights clash, however, seniority of rights is not the
sole consideration. We have previously recognized that ordering a
junior appropriator to supply replacement water in perpetuity is a
“sweeping and pervasive responsibility” that “could prove to be
highly inequitable and inconsistent with the objectives of our
water law.” Wayman v. Murray City Corp., 458 P.2d 861, 864 (Utah
1969). The primary objective is ensuring that “the greatest amount
of available water is put to beneficial use.” Id. at 865; see also Utah
Code § 73-1-3 (“Beneficial use shall be the basis, the measure and
the limit of all rights to the use of water in this state.”). This
objective becomes an important consideration when a junior
appropriator’s diversion interferes with a senior appropriator’s
water right. See Wayman, 458 P.2d at 864–67.
¶33 In Wayman, we adopted the “rule of reasonableness,”
which allows courts to balance competing rights in a manner that
best achieves the goal of putting the greatest amount of water to
beneficial use. Id. at 865–67. Under the rule of reasonableness,
“[a]ll users are required where necessary to employ reasonable
and efficient means in taking their own waters in relation to
others to the end that wastage of water is avoided and that the
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ARAVE V. PINEVIEW
Opinion of the Court
greatest amount of available water is put to beneficial use.” Id. at
865. This rule tempers the prior appropriation doctrine, which
could otherwise allow a senior appropriator to hold
unappropriated water hostage due to outdated and inefficient
methods of diversion. Id. at 865–66. In assessing reasonableness,
courts should consider the total situation, including “the quantity
of water available, the average annual recharge in the basin, the
existing rights and their priorities.” Id. at 865.
¶34 Protecting senior water rights and maximizing the
beneficial use of available water both have a place in our law. But
these concepts do not always easily coexist. We take this
opportunity to clarify the specific elements of a claim of
interference with a water right. In doing so, we do not depart
from prior case law; instead, we seek to synthesize it by
explaining how the governing concepts should come together to
establish a prima facie case of interference.
¶35 To prevail on an interference claim, we clarify that
plaintiffs must establish that: (1) they have an enforceable water
right,7 (2) their water right is senior to the defendant’s water
right,8 (3) their methods and means of diversion are reasonable,9
(4) despite their reasonable efforts, they are unable to obtain the
quantity or quality of water to which they are entitled,10 and
(5) the defendant’s conduct obstructed or hindered their ability to
obtain that water (causation).11
¶36 The district court found that Pineview interfered with
both the Arave and Snowberry Wells when it operated Well 4.
Pineview argues that the district court erred in multiple ways.
__________________________________________________________
7See Bingham v. Roosevelt City Corp., 2010 UT 37, ¶¶ 48, 53, 235
P.3d 730.
8 See UTAH CODE §§ 73-3-1(5)(a), -21.1(2)(a).
9 This element is based upon the rule of reasonableness, which
requires that each appropriator’s “means of diversion must be
reasonable and consistent with the state of development of water
in the area.” Wayman v. Murray City Corp., 458 P.2d 861, 866 (Utah
1969).
10See UTAH CODE § 73-3-23; see also Wayment v. Howard, 2006
UT 56, ¶ 13, 144 P.3d 1147.
11 See UTAH CODE § 73-3-23; see also Bingham, 2010 UT 37, ¶ 48.
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First, it argues that none of the Plaintiffs established interference
because they offered no evidence showing they were unable to get
some quantity of their respective water rights. Second, Pineview
argues that the district court erred in concluding the Plaintiffs’
means of obtaining their water was reasonable. And finally,
Pineview argues that the district court’s damages assessment was
wrong. We address the Arave Well and then the Snowberry Well,
applying the prima facie case outlined above.
A. Arave Well
¶37 The district court correctly found that the Araves and
Southwick12 satisfied the first, second, and fifth elements of an
interference claim: specifically, that the Plaintiffs possess
enforceable water rights, those rights are senior to Pineview’s
water rights, and Pineview’s pumping of Well 4 hindered the
Plaintiffs’ ability to get their water because it dropped the water
table below the level of the Arave Well’s pump. However, the
court made insufficient findings to establish that the Plaintiffs’
method and means of diversion were reasonable (the third
element). Consequently, the court could not properly conclude
that despite reasonable efforts, the Plaintiffs were unable to obtain
some quantity of their water rights (the fourth element). For these
reasons, we reverse the district court’s interference determination.
¶38 With regard to the first element of an interference claim,
Pineview does not dispute that the Araves and Southwick possess
lawfully appropriated water rights. However, Pineview contends
that the district court essentially granted the Plaintiffs a right to a
certain level of the water table, to which they have no enforceable
right. Pineview correctly characterizes the district court’s
conclusions. The court ruled that:
[Pineview’s] interference consists of dewatering the
aquifers that are the source of supply for the Arave
and [Snowberry] wells, thus obstructing and
hindering the quantity of water available to the
Arave and [Snowberry] wells, first by depriving the
Arave well of virtually all water, and by obstructing
the [Snowberry] well’s ability to produce water.
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12 In this section of the opinion addressing only the Arave
Well, when we refer to the “Plaintiffs,” we mean Arave and
Southwick.
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ARAVE V. PINEVIEW
Opinion of the Court
¶39 Pineview relies on our decision in Bingham v. Roosevelt
City Corporation, for its contention that the Plaintiffs have no
enforceable right to the level of the water table. See 2010 UT 37,
¶ 12. In Bingham, the plaintiffs sued the city, alleging that its
manner of diverting water had reduced the level of soil saturation
beneath the plaintiffs’ properties, thereby impairing their ability
to raise crops and livestock. Id. ¶¶ 1, 5–6. Significantly, the
plaintiffs had not appropriated the water in the soil. Id. ¶¶ 29, 36.
Nevertheless, they argued that the level of soil saturation was a
component of the water rights that they had appropriated because
it allowed them to use the appropriated water more beneficially.
Id. ¶¶ 20, 25. In other words, the plaintiffs required less water to
irrigate their land before the city’s diversion had lowered the
water table. Id. ¶ 20. We affirmed the district court’s grant of
summary judgment in favor of the city, reasoning that beneficial
use of water does not substitute for appropriation. Id. ¶¶ 29–30.
Thus, because the plaintiffs had not appropriated the water in
their soil, they did not have an enforceable right to its continued
presence. Id. We also explained that the plaintiffs had sustained
no compensable injury because they were still able to access all of
the water to which they were entitled under their water rights. Id.
¶¶ 49–50.
¶40 The circumstances here are different than those in
Bingham. Here, the Plaintiffs each have lawfully appropriated
water rights, allowing them to divert water from their respective
wells. They are not claiming an enforceable right to use additional
unappropriated water simply because it is present in their soil. Cf.
id. ¶ 24. Instead, they seek to enforce their existing senior water
rights. And although we held in Bingham that the plaintiffs had no
enforceable right to the water in their soil, we recognized that “a
claim of interference can be sustained where a junior appropriator
lowers the water table in a manner that hinders the diversion of
water by a senior appropriator.” Id. ¶ 51.
¶41 We conclude that the Plaintiffs have satisfied this element
of an interference claim because they have lawfully appropriated
water rights. But we clarify that the Plaintiffs have an enforceable
right only in these lawfully appropriated water rights—not in a
particular level of the water table. The Plaintiffs’ claim that
Pineview’s dewatering of the aquifer constitutes actionable
interference cannot be divorced from the requirement that the
Plaintiffs make reasonable efforts to obtain their water.
Fundamentally, the Plaintiffs must show that because of the
actions of Pineview, they can no longer access the water to which
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they are entitled even though they have made reasonable efforts
to do so. If they cannot make such a showing, they have
demonstrated only that Pineview has lowered the water table, not
that it has prevented them from obtaining some quantifiable
portion of their water right.
¶42 With regard to the second element, it is undisputed that
the Araves’ and Southwick’s water rights are senior to Pineview’s.
¶43 However, with regard to the third element, we conclude
that the district court did not find sufficient facts to establish that
the Plaintiffs’ method and means of diversion were reasonable.
This element is based upon the rule of reasonableness, which
requires that each appropriator’s “means of diversion must be
reasonable and consistent with the state of development of water
in the area.” Wayman, 458 P.2d at 866. The rule of reasonableness
permits the factfinder a measure of flexibility in considering the
totality of relevant facts—such as the quantity of water available,
the average annual recharge, the existing rights that are in
conflict, and their relative priorities—with the objective of putting
the greatest amount of water to beneficial use. Id. at 865. As we
explained in Wayman, all water users are required to “employ
reasonable and efficient means in taking their own waters in
relation to others to the end that wastage of water is avoided and
that the greatest amount of available water is put to beneficial
use.” Id.
¶44 Here, the district court concluded, the “Plaintiffs‘ means
and method of diverting their water are reasonable. Their wells
are the only possible method for diverting the water under their
rights. Those wells functioned without problem until [Well 4] was
drilled.”
¶45 These findings are not sufficient to establish that the
operation of the Arave Well was reasonable during the relevant
time period. The district court appears to have based its
conclusion on two findings: first that the Araves can divert their
water only through the use of the well based on the terms of their
water right, and second that the well functioned without issue
until Well 4 began to operate. Those facts are certainly relevant to
the reasonableness question, but they do not complete the
analysis. It is also necessary to consider whether the Araves were
operating the well efficiently and consistent with the current state
of development in the area, and to identify and consider any other
factors relevant to maximizing the beneficial use of water.
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Opinion of the Court
¶46 Here, the record evidence established that although the
water table dropped when Well 4 pumped, “there ha[d] not been
a general decline in groundwater levels in the regional basin in
which [the] aquifers are located,” although it fluctuated
seasonally. Under these circumstances, it was necessary to
determine whether the Plaintiffs made reasonable efforts to obtain
the available water but were unable to do so. However, the court
did not make findings related to whether the Plaintiffs could have
lowered their pump or otherwise modified the well to reach the
available water, or conversely, explain why this would have been
futile or otherwise not possible.13 Without this, there are not
adequate findings to establish that the Plaintiffs made reasonable
efforts to obtain their water.
¶47 While the Plaintiffs’ failure to meet the requirements of
the third element is dispositive, we note that the third and fourth
elements are closely related. If the Plaintiffs cannot demonstrate
that their means and method of diversion are reasonable, it is
impossible to satisfy the fourth element of the prima facie case—
that despite reasonable efforts, the Plaintiffs could not obtain the
quantity of water to which they were entitled.
¶48 We note an additional problem with the Plaintiffs’ proof
on the fourth element. The district court did not make findings
about the specific amount of their respective water rights that the
Araves and Southwick were unable to obtain. Rather, the court
found that Pineview’s operation of Well 4 interfered with the
Plaintiffs’ well. But this does not necessarily establish that the
Plaintiffs were unable to obtain some quantity of their water right.
¶49 The Plaintiffs did not offer evidence of how much water
they used or how much of their appropriated water they were not
able to obtain. This is because the Araves did not have a metering
device in their well. We do not mean to suggest that it was
__________________________________________________________
13 Rather, the court found that the Araves removed the pump
and used the well as a monitoring well to document the impact of
pumping Well 4. The court accepted the Plaintiffs’ explanation
that if they had pumped the well at the same time, it would have
been more difficult to interpret the data. While this may be the
case, it does not excuse the Araves from showing that at some
point after the alleged interference, they made reasonable efforts
to reach available water but were unable to do so.
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impossible for Plaintiffs to show interference by proving that
Pineview interfered with the year-round nature of their water
rights. But it is difficult for them to establish that Pineview
prevented them from obtaining some quantifiable amount of the
water to which they were entitled with no measurements of the
amount of water they could obtain at the time of the alleged
interference.
¶50 In sum, we conclude there are insufficient findings to
establish that the Plaintiffs’ means of diversion was reasonable
and that despite their reasonable efforts the Plaintiffs were unable
to obtain some quantity of their water rights. Accordingly, we
reverse the district court’s ruling that Pineview interfered with the
Arave Well.
B. Snowberry Well
¶51 With regard to the Snowberry Well, Pineview argues that
because Venture exceeded the terms and limits of its senior water
right,14 it cannot make a viable interference claim. In other words,
Pineview asserts that Venture’s water use was illegal, and any
alleged interference with an illegal use is not actionable. Pineview
further argues that Venture did not prove it was unable to obtain
the water to which it was entitled under its original, senior water
right. We reject the first argument, but we agree that the district
court did not make sufficient findings to establish that Pineview
could not obtain some portion of its senior water right.
¶52 Pineview argues that Venture’s excessive water use is
fatal to its interference claim. This relates to the first element of
the prima facie case. Pineview essentially argues that Venture’s
violation of its water right renders it unenforceable. We reject this
argument. While excessive use may make it more difficult for
Venture to prove that it could not obtain the water allotted to it
under its 1960 right and that its diversion was reasonable, Venture
has not lost its water right. Certainly, it risked an enforcement
action by the state engineer. See UTAH CODE § 73-2-25(2)(a). But if
Venture can make out a claim for interference, its excessive use
would not bar such an action or shield Pineview from liability.
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14Venture not only used more water than it was allotted, but
used it to support a commercial bed-and-breakfast and to irrigate
when it was entitled to use its water only for domestic purposes.
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ARAVE V. PINEVIEW
Opinion of the Court
¶53 However, we agree with Pineview that Venture has not
proven interference. With regard to the first element, it is
undisputed that Venture has an enforceable 1960 water right that
allows it to divert 0.45 acre-feet of water at a flow rate of 6.7
gallons per minute from the Snowberry Well for single-family
domestic use.
¶54 Second, this water right is senior to both of Pineview’s
water rights. Because Venture exceeded the limits and terms of
this senior water right, it obtained an additional water right from
the state engineer. The new 2017 water right is junior to
Pineview’s rights and is not part of Venture’s interference claim.
¶55 Third, with regard to reasonableness, the district court
made the same finding for both wells. As described above, the
court concluded that the “Plaintiffs’ means and method of
diverting their water are reasonable. Their wells are the only
possible method for diverting the water under their rights. Those
wells functioned without problem until [Well 4] was drilled.” For
the reasons we explained above, this is insufficient to establish
that the Snowberry Well was a reasonable means of diversion in
the manner in which Venture operated it. See supra ¶¶ 43–45.
¶56 This impacts Venture’s ability to satisfy the fourth
element. As we have explained, without a sufficient finding of
reasonableness, Venture cannot show that despite reasonable
efforts it was unable to obtain its water. See supra ¶¶ 46–48.
¶57 And while this is determinative, we also note that the
district court’s findings regarding Venture’s inability to obtain
some measure of its water right were insufficient. While the
district court found that Well 4 hindered the Snowberry Well’s
ability to produce water, it did not specifically find that Venture
was unable to obtain the quantity of water to which it was entitled
under its senior water right. The findings state only that the
Snowberry Well “struggles” when Well 4 operates. So we do not
know whether Venture was ultimately unable to obtain some
portion of the 0.45 acre-feet of water allotted to it under its 1960
right. This is especially problematic where Venture used more
than its allotted right.
¶58 Accordingly, we reverse the district court’s determination
that Pineview interfered with the Snowberry Well.
II. NEGLIGENCE
¶59 Pineview next contends that the district court erred in
concluding it was negligent in locating, drilling, and using Well 4.
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The district court concluded Well 4 operates in a manner that
interferes with the Arave and Snowberry Wells and that such
harm was foreseeable due to Well 4’s close proximity to the
Plaintiffs’ wells, its use of the Plaintiffs’ water source, and its
larger capacity.
¶60 First, Pineview argues that this ruling is erroneous
because it was not Pineview but other developers who sited,
drilled, and tested Well 4 and the Plaintiffs did not join those
developers in this case. But even assuming Pineview did not site
or drill Well 4, it does currently own and operate the well. And
Pineview provides no argument or authority as to why the
current operator of a well should be insulated from liability for
negligence because it did not originally site and drill the well.
Likewise, Pineview does not provide any legal argument or
authority as to why not joining the prior developers is fatal to the
Plaintiffs’ negligence claim against Pineview.
¶61 Pineview also asserts that the Plaintiffs’ negligence claim
fails because they did not offer expert testimony establishing the
relevant standard of care and causation. But Pineview has not
explained why the Plaintiffs were obligated to present expert
testimony to establish causation or the standard of care in this
case. Pineview cites Ladd v. Bowers Trucking, Inc. to assert that
“Utah courts generally require expert testimony to prove
causation in tort cases in all but the ‘most obvious cases.’” 2011
UT App 355, ¶ 10, 264 P.3d 752 (citation omitted). While that
language was accurate in context—proving causation of medical
injuries—we have also explained that “[q]uestions of ordinary
negligence are properly determined by the lay juror without the
need for expert testimony.” Graves v. N. E. Servs., Inc., 2015 UT 28,
¶ 40, 345 P.3d 619. Expert testimony is necessary only for “issues
that do not fall within the common knowledge and experience of
lay jurors.” Callister v. Snowbird Corp., 2014 UT App 243, ¶ 19, 337
P.3d 1044. Yet Pineview has failed to specify which matters are
beyond the capacity of the factfinder in this case.
¶62 By failing to adequately analyze or argue either point,
Pineview has failed to meet its burden of persuasion and has
shifted the burden of research and argument to this court. See
Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 46, 70
P.3d 904. Under rule 24(a)(8) of the Utah Rules of Appellate
Procedure, an appellant’s argument “must explain, with reasoned
analysis supported by citations to legal authority and the record,
why the party should prevail on appeal.” This briefing
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ARAVE V. PINEVIEW
Opinion of the Court
requirement is “a natural extension of an appellant’s burden of
persuasion.” Living Rivers v. Exec. Dir. of the Utah Dep’t of Env’t.
Quality, 2017 UT 64, ¶ 33, 417 P.3d 57 (citation omitted). Thus,
“[a]n appellant who fails to adequately brief an issue will almost
certainly fail to carry its burden of persuasion on appeal.” Id.(citation omitted) (internal quotation marks omitted).
¶63 Accordingly, we decline to reverse the district court’s
negligence ruling. However, in light of our reversal of the district
court’s interference determinations, we remand this claim for
reconsideration and further factfinding, if necessary. This is
because the district court’s negligence determination flows from
its finding of interference. The district court concluded that
Pineview had breached a duty of care to the Plaintiffs when it
“located, drilled, and used [Well 4] in a manner that interferes with
plaintiffs’ wells.” (Emphasis added.) It is not clear how our reversal
of the Plaintiffs’ interference claims impacts the district court’s
negligence ruling. Accordingly, we remand for the district court
to consider that question and make any additional findings of fact
that it deems necessary.
III. DAMAGES
¶64 We also remand to the district court its calculation of
damages and imposition of prospective remedies. The court
should determine whether these are altered by the reversal of its
interference determinations. Any damages now stem only from
the Plaintiffs’ negligence claim.
¶65 Additionally, we vacate a portion of the court’s
compensatory damages award. Pineview argues the damages
award is excessive to the extent the district court required
Pineview to refund water service fees paid by the Plaintiffs for
periods when Well 4 was inactive and therefore did not impact
the Plaintiffs’ ability to obtain water. We agree. The evidence
presented at trial established that Well 4 pumped only seasonally
and the Plaintiffs’ wells recovered within a day or two after Well 4
ceased pumping. In assessing the damages caused by Pineview’s
negligence, the court should award damages only for fees paid
during the period of the year that Well 4 injured the Plaintiffs’ use
of their wells. Accordingly, we vacate the portion of the damages
award that compensates the Plaintiffs for fees paid during periods
in which their wells would have been unimpeded by Well 4 if
they had attempted to use them.
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IV. ATTORNEY FEES
¶66 Pineview requests attorney fees under Utah Code
sections 73-2-28(4) and 78B-5-825. Because we affirm the district
court’s judgment that Pineview was negligent, we conclude that
Pineview is not entitled to attorney fees on appeal.
CONCLUSION
¶67 We reverse the district court’s determination of
interference regarding the Arave and Snowberry Wells. In light of
this, we remand the court’s determination of negligence for
reconsideration and further factfinding, as the court deems
necessary. We vacate the damages award to the extent that it
compensates the Plaintiffs for fees paid during periods of the year
when Pineview did not utilize Well 4. And finally, we remand to
the district court to determine whether to revisit its damages
award and imposition of remedies in light of the reversal of its
interference determinations.
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