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Legally Speaking

 

Issue: October, 2009
Author: Sky D Phifer

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Waste and Seepage Water: Liability or Asset?

The dry years were getting commonplace in Wyoming. Now that we’ve had a wet year, the problems, as well as utilization, of waste and seepage water are magnified. Problems such as flooded fields, flooded basements, and ditch bank washouts abound.

We’re a fickle lot. Too little water, we complain about it. Too much, same solution. Thank God there are attorneys.


Liability

Thus sayeth the Lord Blackburn of the Court of Exchequer in Rylands v. Fletcher:

The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

That makes sense. The old “if you keep a tiger in the backyard, you’re going to pay for any damage that tiger causes if it escapes” kind of analogy.

Strict liability? Simple, straight forward rule? Not quite. The rule in Rylands v. Fletcher came with exceptions such as escape owing to Plaintiff’s actions, or “vis major” [loss resulting from a natural cause without human intervention and that could not have been prevented by the exercise of due care] or “the act of God” or “the Queen’s enemies” (Al Queda?).

But alas the rule in Rylands v. Fletcher with all its exceptions was not adopted in Wyoming, nor anywhere else in the West.

Instead, at least since 1905 in Wyoming, “The well settled rule is that the owner of an irrigating ditch is bound to exercise reasonable care and skill to prevent injury to other persons from such ditch, and he will be liable for all damages occurring to others as a result of his negligence or unskillfulness in constructing, maintaining, or operating the ditch.” “In general, the traditional principles of negligence define the duties of an irrigator. See Wyo. Stat. Ann. 41-5-101 . . . Failure to exercise reasonable care in directing irrigation or waste water is negligence, and the ditch owner will be responsible for the damages neighbors suffer as a result of his negligence.”

Lawsuits have been maintained in Wyoming for negligence in maintenance resulting in ditch and reservoir seepage, reservoir failure due to sabotage, failure to plug an abandoned oil and gas well resulting in salty seepage water damaging Plaintiff’s land, failure of the ditch bank on a canal, and failure of a head gate on a canal, with differing degrees of success.

One of the weirs that any Plaintiff must overcome is the fact that not only must there be negligence, but it must be the proximate cause of the damages to Plaintiff. While expert testimony is not necessary to establish a breach of the duty to exercise that degree of care of a reasonable man, proximate cause is another thing.

The Court in Reed v. Cloninger pointed out that knowing the source of the water that was seeping into the basement of the Plaintiff was necessary before the Court could resolve the issues of the running of the statute of limitations and violation of a duty owed to the Reeds proximately causing the damage. “There are different possibilities of the source of the encroaching waters suggested in the record, including: leakage or seepage of water being delivered for irrigation from the irrigation works; waste water being collected and/or diverted by the irrigation mechanisms after irrigation; and a rise in the water table caused simply by the practice of irrigation.” It often becomes a battle of the experts. In Hoy v. Miller, Plaintiff’s expert was simply outgunned by three defense experts.

With increased water availability comes the attendant duty of care to assure that the water does not escape and cause damage to the neighbors.


Asset
Instead of being a liability and causing damage, can the water that has escaped be captured and utilized by a neighbor as an asset? You betcha. The Wyoming Supreme Court has affirmed the fact seepage or waste water which, if not intercepted would naturally reach a stream, is subject to appropriation. “And so it is held in a number of cases that seepage water which, if not intercepted, would naturally reach the stream, is just as much a part of the stream as the waters of any tributaries and must be permitted to return thereto, if the owner cannot make beneficial use thereof. . . This is a qualifying requirement for appropriation.”

However, the down side is that it is not a permanent right to continue to receive the water. “No appropriator can compel any other appropriator to continue the waste of water which benefits the former. If the senior appropriator by a different method of irrigation can so utilize his water that it is all consumed in transpiration and consumptive use and no waste water returns by seepage or percolator to the river, no other appropriator can complain. . . Presumably a person using water on his land may abandon his irrigation altogether and return his lands to a nonirrigated use if he desires to do so.”

As such, the Wyoming Supreme Court has refused to protect or compensate the appropriator of waste water when the City of Rawlins changed its point of discharge and eliminated the source of the appropriated waste water. “These concepts are not new to Wyoming water law, since they have been applied to protect the right of a senior appropriator to recapture waste and seepage water. . . The lower landowner using such water merely takes his chances as to future supplies, no matter how long he uses such water.”

However, the Wyoming Supreme Court has protected an appropriator with a permit for waste water against the senior appropriator when the senior appropriator sought to use the waste water, not on the land to which he had appropriated it, but to a separate parcel with no adjudicated right.

When applied to the right spot, water, even waste and seepage water, can be a valuable asset.


Conclusion
Water spawns life and litigation. Waste and seepage water is no different as it flows and generates its own law as both a liability and an asset.

Sky D Phifer practices law in the Wind River Basin. Besides a general practice, Mr. Phifer represents farmers, ranchers and Irrigation Districts on water issues.

Copyright © 2009 – Wyoming State Bar

     

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