Nonuse of Water Beyond Appropriator's Control

Abstract

Sam and Mona Scott owned property in Sheridan County, Wyoming. The McTiernans owned a ranch that neighbored the Scotts' property. Both properties were once owned in common. Both parties held water rights in Smith Creek to irrigate their respective properties. A prior common owner of both properties developed a complex system of diversions and ditches to use his water rights. As a result, the John Ross Appropriation that irrigated two parcels owned by the Scotts was not actually diverted through the Ross number 1 ditch but was instead diverted through several other points. In 1991, the McTiernans started deliberately preventing water from flowing down the ditches to the Scotts' tracts. The McTiernans also filled in ditches that had previously conveyed water to the Scotts' property. The Scotts were assured by the McTiernans' employees that the ditches would be replaced. In 1996, the McTiernans filed this petition with the board of control for a declaration of abandonment of the Ross Appropriation, claiming that the water from the appropriation had not been beneficially used in the five years immediately before the abandonment proceeding. The board ruled that part of the appropriation had been abandoned and ordered the appropriation reduced. The Scotts appealed. The appellate court said that an abandonment of a water right must be voluntary and cannot occur if the appropriator's nonuse of the water was not voluntary. Because the Scotts' failure to use their water right was the result of the McTiernans' deliberate actions, the court concluded that they did not voluntarily abandon their water right. The board's decision was reversed.