Wayment v. Howard

2006 UT 56
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Glynn F. Wayment and No. 20050547
Edward C. England,
Plaintiffs and Appellees,
v.
Lee R. Howard and F I L E D
William Howard,
Defendants and Appellant. September 29, 2006
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Second District, Ogden
The Honorable W. Brent West
No. 010903790
Attorneys: John H. Mabey, Jr., David C. Wright, Salt Lake City,
for appellees
J. Craig Smith, D. Scott Crook, Scott M. Ellsworth,
Salt Lake City, for appellant
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WILKINS, Associate Chief Justice:
¶1 Appellant Lee R. Howard seeks review of the trial
court’s decision finding for Appellees Glynn F. Wayment and
Edward C. England on their claim of interference with water right
number 35-8073 and against Howard’s counterclaims of trespass,
negligence, and nuisance. We affirm on all issues.
BACKGROUND
¶2 Appellee Wayment owns real property bordered on the
south by Appellee England. England’s property is bordered on the
south by Appellant Howard’s property. A slough, traditionally
known as the “Marriot Slough,” traverses the Appellees’ and the
Appellant’s property. Appellees are successors in title to water
right number 35-8073. This right was originally obtained by Mary
Marriot in 1916 and provided for a flow rate of 0.5 cubic feet
per second (cfs) of water to be used as irrigation water.

No. 20050547 2
¶3 The trial court found that Appellees (as well as their
predecessors) have accessed this water by damming the northern
end of the slough, allowing the slough to fill, and then pumping
water out of the slough to irrigate. The dam remains in place
throughout the irrigation period so that any water arriving on
the Appellees’ property remains there until (1) it is used by the
Appellees, (2) it is drained at the end of the irrigation period,
or (3) if the water level in the slough is too high, it runs down
a tin beneath 5900 West and reenters the slough on the
Appellant’s property.
¶4 This process was described by Marriot in her original
Application to Appropriate Water (submitted to the Utah State
Water Engineer (“State Engineer”)), the Proof of Appropriation of
Water (completed by the State Engineer’s office), as well as an
explanatory letter from Marriot to the State Engineer. Marriot
originally applied for a flow of 1 cfs but stated in her
application that “it is not probable that a continuous flow of
one [cfs] can be obtained, but it is the intention of the
appropriator to pump as much as possible at a time and then
resting [sic] untill [sic] the slough fills again.” It takes at
least one day to pump the water out of the slough and at least
two more days for the slough to refill. Because of this process,
the flow is inconsistent; the flow decreases as the slough fills.
The State Engineer’s office measured an average flow of 0.53 cfs
and, as a result, authorized the appropriation at 0.5 cfs. No
flow measurements have been taken other than those by the State
Engineer while considering approval of Marriot’s 1914
application.
¶5 Appellant does not own a water right, but rather owns
shares in an irrigation company, known as the Knight Irrigation
Company, and irrigates using the water from a diversion point
south of the separation tin. Appellant constructed a dike across
the slough in 1998, without State Engineer approval. Later,
Appellant consulted the Army Corps of Engineers, which granted a
permit for the dike and instructed Appellant to place two pipes
into the dike. Appellant complied by installing one pipe 36
inches in diameter and one 15 inches in diameter. Two witnesses
at trial testified that Appellant intended to impound water with
the dike. Accordingly, Appellees claim (and the trial court
found) that the dike impedes the flow through the slough,
requiring a significant build-up of water in the slough before
water will flow through the dike and into the slough on
Appellees’ property.
¶6 In 2000, Appellees paid to have the slough on their
property dredged so that water would flow more freely. Though
temporarily stopped, dredging was completed after the Army Corp

1 See Searle v. Milburn Irrigation Co., 2006 UT 16, ¶ 15,
133 P.3d 382 (issue of impairment is a mixed question of fact and
(continued...)
3 No. 20050547
of Engineers approved the process. Appellant did not allow any
dredging on his property.
¶7 Appellees brought suit in 2001, claiming interference
with their water right. The action included claims and
counterclaims of trespass, nuisance, and negligence. Following
two motions by Appellant for summary judgment, which the trial
court denied, the case was tried in November 2003. The trial
court decided the case in favor of Appellees, finding
interference with Appellees’ water right, and ordered Appellant’
dike modified to allow unrestricted flow. The court also
permanently enjoined Appellant from further interference. After
several overruled objections, the court entered final judgment in
May 2005. Appellant now appeals.
ANALYSIS
¶8 The two questions presented to us on appeal are (1)
whether the evidence at trial supports the trial court’s final
judgment findings and (2) whether summary judgment was properly
denied. Additionally, several subsidiary issues are raised,
including whether Appellees can supplement additional water to
their appropriated water right, whether the trial court correctly
found that the flow of the Marriott Slough is “generally south to
north,” and whether Appellees are limited by their water right to
a duty of only three acre-feet. Because we conclude that the
trial court’s findings of interference were adequately supported
by the evidence, we need not, and therefore do not, reach the
subsidiary issues raised by Appellant. These subsidiary issues
do not alter our conclusion with respect to the trial court’s
action. We therefore address only the two central issues,
namely, the trial court’s (1) final judgment findings and (2)
denial of summary judgment.
I. REVIEW OF THE EVIDENTIARY SUPPORT FOR THE TRIAL COURT’S
FINDINGS
¶9 Appellant first contends that the trial court’s final
judgment finding interference, is unsupported by the evidence. A
determination of interference, much like one of impairment, is
best viewed as a mixed question of fact and law. The trial court
must first find facts regarding the claim of interference and
then determine whether those facts are within the ambit of
interference as applied to the water right at issue.1 When

1(...continued)
law).
2 See id. ¶ 16 (citing State v. Pena, 869 P.2d 932 (Utah
1994)).
3 See Pena, 869 P.2d at 937 (recognizing that questions
applying law to fact are given varying degrees of deference).
4 See Chen v. Stewart, 2004 UT 82, ¶ 76, 100 P.3d 1177
(requiring appellant to marshal the evidence when the legal
standard is extremely fact sensitive).
5 Utah R. App. P. 24(a)(9); see Jensen v. Sawyers, 2005 UT
81, ¶ 85, 130 P.3d 325 (marshaling obligation requires defendant
to “ferret out a fatal flaw in the evidence” and become a
“devil’s advocate”) (citing State v. Green, 2005 UT 9, ¶ 28, 108
P.3d 710); Michael J. Wilkins et al., A “Primer” in Utah State
Appellate Practice, 2000 Utah L. Rev. 111, 127.
6 See Chen, 2004 UT 82, ¶ 78 (stating that to meet the
marshaling requirement, “[a]ppellants cannot merely present
carefully selected facts and excerpts from the record in support
of their position.”).
7 Id. ¶ 80.
No. 20050547 4
reviewing a mixed question of fact and law, we typically grant
some level of deference to the trial court’s application of law
to the facts.2 In this instance, because the issue of
interference is extremely fact dependant, we grant broad
deference to the trial court.3 In addition, when appealing a
highly fact dependent issue, the appellant has a duty to marshal
the evidence.4 This duty requires an appellant to marshal all of
the facts used to support the trial court’s finding and then show
that these facts cannot possibly support the conclusion reached
by the trial court, even when viewed in the light most favorable
to the appellee.5 An appellant may not simply cite to the
evidence which supports his or her position and hope to prevail.6
Furthermore, failing to properly marshal is sufficient ground for
affirming the trial court’s finding.7 We will review the trial
court’s findings and Appellant’s marshaled evidence.
A. The Pumping and Refilling Cycle
¶10 Appellant argues that the only evidence of interference
is in relation to the flow, rather than the amount, of Appellees’
water right. Further, Appellant contends that because Appellees

8 See Black’s Law Dictionary 831-32 (8th ed. 2004).
9 See Adams v. Portage Irrigation Reservoir & Power Co., 72
P.2d 648, 653 (Utah 1937) (holding that water from the source to
the appropriator’s point of diversion may be used by anyone,
unless such use diminishes the quantity or impairs the quality
for the appropriator).
5 No. 20050547
were receiving more than the 0.5 cfs specified in their
certificate, unless the flow, which affects Appellees’ method of
appropriation, is a protected part of the water right, no
interference has occurred. Therefore, Appellant challenges the
trial court’s finding of fact regarding Appellees’ method of
appropriation.
¶11 The trial court found that Appellees use a diversion
dam on the north end of the slough to allow the slough to fill so
that water can then be pumped to Appellee’ crops. After pumping,
the slough refills and the process repeats, until the end of the
irrigating season when the slough is allowed to empty. The trial
court found that this “pumping and refilling cycle” is the “means
or method” by which water right number 35-8073 is and has
historically been used and that, without it, the water right
cannot be used.
¶12 The evidence to support this finding includes a
description of the cycle in the Application to Appropriate, the
original appropriator’s explanation of the process in a letter to
the State Engineer when the right was originally approved, the
testimony of Appellee Wayment and Appellee England, and the
remarks from the State Engineer’s office on the Proof of
Appropriation. This evidence presented to the trial court, if
accepted, is sufficient to support the challenged finding.
Further, Appellant has failed in meeting his obligation to
demonstrate that, as a matter of law, the evidence is
insufficient. As a result, we accept the finding regarding the
pumping and refilling cycle.
B. The Finding of Interference
¶13 Appellant also challenges the trial court’s finding of
interference. Interference means to obstruct or hinder.8
Specifically, in our water law, obstructing or hindering the
quantity or quality of an existing water right constitutes
interference.9 Our case law also protects an appropriator’s
right to continue use of his existing and historical method of

10 See Salt Lake City v. Gardner, 114 P. 147, 152 (Utah
1911)(holding that the original appropriator of a water right
also acquires the right to continue use of his method or means of
diversion).
11 Appellees assert that any degree of interference is
prohibited. They base the argument on our rejection of the “de
minimus” theory in claims of impairment. Under this theory, an
application to either appropriate or change the point of
diversion or use of water is to be approved if impairment is
minimal. We have not adopted the de minimus standard, but rather
have stated that no impairment is acceptable. See Piute
Reservoir & Irrigation Co. v. W. Panguitch Irrigation & Reservoir
Co., 367 P.2d 855, 858 (Utah 1962). While this may be true for
impairment, we need not and do not reach the issue of whether we
apply a de minimus standard to interference.
No. 20050547 6
diverting the water.10 The trial court found that Appellant’s
dike resulted in hindrance and obstruction of Appellees’ flow of
water, resulting in interference.11
¶14 Again, in order for Appellant to successfully challenge
the finding of interference, he must have marshaled all of the
evidence supporting the finding, and then demonstrate that it
could not support the findings of the trial court. In this
instance, Appellant has failed to marshal any of the supporting
evidence. Appellant instead merely presents and reargues the
opposing evidence presented by him at trial regarding the
quantity of water to which Appellees are entitled. Yet, as
Appellees note, there was ample evidence to support a finding of
interference including testimony from two witnesses regarding
both the Appellant’s intent to impound water when building the
dike, the effects of the dike, pictures of the water level on
each side of the dike, and the trial judge’s personal
observations of the site. The trial court found interference,
and we are unpersuaded that the finding was erroneous.
C. Dismissal of Appellant’s Counterclaims
¶15 At trial, Appellant asserted counterclaims of trespass,
negligence, and nuisance, claiming that Appellees’ use of a tin
to dam the slough before pumping water to their crops caused the
water to flow onto Appellant’s land. The trial court
subsequently dismissed all three counterclaims. Appellant
challenges those dismissals.
¶16 Appellant challenges the trial court’s statement that
Appellant had formally withdrawn his trespass counterclaim, and

12 See State v. Green, 2005 UT 9, ¶ 13, 108 P.3d 710
(holding that when an appellant fails to adequately marshal, the
appellate court is bound to assume the record supports the trial
court’s factual findings).
7 No. 20050547
asserts that his trespass claim is still unresolved. The record
does support Appellant’s assertion that the trespass claim was
not withdrawn. However, it was litigated at trial, and dismissed
on the merits. The record supports dismissal of the trespass
claim.
¶17 The trial court also dismissed Appellant’s claims of
negligence and nuisance for no cause of action. The trial court
found that both the dike and Appellant’s failure to dredge his
property forced Appellees to hold water in the slough at a higher
level. Holding the water at a higher level caused water to pool
or meander into areas on Appellant’s property where he claimed it
had not historically gone. The trial court found that any damage
to Appellant’s property was the result of Appellant’s own actions
(or failure to act). Further, the trial court found that
Appellees’ use of the tin to dam the slough is a protected part
of their historic method of utilizing their water right. In
challenging these findings, Appellant failed to marshal any of
the supporting evidence. We therefore must presume that the
evidence presented was sufficient to support the trial court’s
findings,12 and that Appellees neither created a nuisance,
trespassed, nor were negligent in the use of their water right.
II. APPELLANT’S CLAIM OF TRIAL COURT ERROR IN DENYING MOTIONS
FOR SUMMARY JUDGMENT
¶18 Appellant also asks us to examine whether the trial
court properly denied Appellant’s motions for partial summary
judgment made during the proceedings.
¶19 Appellant made two motions for partial summary
judgment, both of which were denied prior to trial. At trial,
Appellant had the opportunity to fully litigate the issues raised
in the summary judgment motions. He was allowed to present his
evidence and argument on the issues. Thereafter, the trial court
ruled against him on the merits.
¶20 In appealing a summary judgment ruling, only facts and
legal theories that were foreclosed from being addressed at trial
may be heard on appeal. Even if the motions had been granted,
the interlocutory nature of a partial summary judgment leaves
them subject to modification by the trial court up until entry of

13 See Denison v. Crown Toyota Motors, Inc., 571 P.2d 1359,
1360 (Utah 1977) (dismissing an appeal from denial of summary
judgment motion because it was not from a final order); see also
Christensen v. Farmers Ins. Exch., 443 P.2d 385, 389 (Utah 1968)
(explaining that ordinarily the denial of a motion for summary
judgment is not appealable because it is not a final judgment).
No. 20050547 8
final judgment.13 Appellant was accorded the opportunity to
fully litigate his case. Consequently, the trial court’s initial
denials of partial summary judgment resulted in no prejudice, did
not affect the final outcome, and are not reviewable.
CONCLUSION
¶21 Appellant has failed to demonstrate error in the trial
court’s factual findings and application of the law.
Additionally, Appellant’s counterclaims were properly dismissed
on their merits. Further, the evidence presented in support of
Appellees’ method of appropriation was sufficient to support the
findings and conclusions reached by the trial court. Finally,
the denial of Appellant’s motion for partial summary judgment is
unreviewable because the claims were fully litigated at trial.
Affirmed.
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¶22 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.