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Zingiber Investment, LLC, An v. Hagerman Highway District

March 22, 2011

ZINGIBER INVESTMENT, LLC, AN IDAHO LIMITED LIABILITY COMPANY, PLAINTIFF-APPELLANT,
v.
HAGERMAN HIGHWAY DISTRICT, DEFENDANT-RESPONDENT, AND LYNN BABINGTON AND KATHY BABINGTON, HUSBAND AND WIFE; AND CLIFTON E. JENSEN AND SUZANNE K. JENSEN, HUSBAND AND WIFE, DBA LYNCLIF FARMS, LLC, AN IDAHO LIMITED LIABILITY COMPANY, INTERVENORS-RESPONDENTS.



Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Gooding County. Hon. John M. Melanson and R. Barry Wood, District Judges.

The opinion of the court was delivered by: W. Jones, Justice

2011 Opinion No. 44

Stephen W. Kenyon, Clerk

The judgments of the district courts in cases Nos. CV 2008-57 and CV 2008-125 are affirmed. The grant of attorney fees in CV 2008-57 is affirmed and the denial of attorney fees in CV 2008-125 is affirmed. Attorney fees and costs on appeal are awarded to Respondents LynClif and Hagerman Highway District.

I. NATURE OF THE CASE

This case revolves around the respective rights of LynClif Farms, LLC ("LynClif") and Zingiber Investment, LLC ("Zingiber") in regard to the Padgett Ditch, which crosses both of their properties. LynClif constructed a pipe along the Justice Grade right-of-way, which is located adjacent to Zingiber's land and is under the jurisdiction of the Hagerman Highway District (the "District"). In a consolidated appeal, Zingiber challenges two separate judgments entered against it. First, Zingiber argues that the district court erred in determining that LynClif had the unilateral right to pipe the portion of the ditch that had been on Zingiber's property in Case No. CV-2008-125. Zingiber contends that I.C. § 42-1207 did not give LynClif that authority, and that its water rights and separate ditch rights have not been protected. Second, Zingiber argues that the district court erred in determining that it lacked standing to bring a declaratory action against the District to void the District's issuance of a permit to LynClif in order to construct a pipe in the Justice Grade right-of-way in Case No. CV-2008-57.

II. FACTUAL AND PROCEDURAL BACKGROUND

William Van Horn is the owner and manager of Zingiber. LynClif and Zingiber own adjacent parcels of land along Highway 30 in Gooding County. The Padgett Ditch is a manmade ditch that crosses both LynClif's and Zingiber's properties carrying water diverted from Billingsley Creek. LynClif's property is located downstream along Padgett Ditch from Zingiber's property. A public roadway known as the Justice Grade is situated adjacent to Zingiber's property and is under the jurisdiction of the District. LynClif owns 97% of the water rights in the Padgett Ditch. LynClif's water rights include a 10 cfs aquaculture right for rearing fish. Zingiber's water right includes .3 cfs for irrigation and .02 cfs for stockwatering. Zingiber does not hold any water right for aesthetic or wildlife purposes. Kirt Martin, who is not a party to this action, is the only water user downstream from LynClif on Padgett Ditch, and holds a .04 cfs water right.

Zingiber purchased its property in June 2006. Almost immediately thereafter, without LynClif's written permission, Van Horn relocated the portion of Padgett Ditch that flowed on his land to meander around the property. Van Horn's goals were to create a more aesthetic environment, make irrigation easier, and create a fly fishing habitat in the ditch. Van Horn more than doubled the length of the ditch, but at the same time narrowed its width, and also installed a fish screen at the downstream border of his property, apparently to keep fish from leaving his property. Zingiber alleges that even after relocation of the ditch, the ditch still delivered the full quantity and quality of LynClif's water to the upstream edge of LynClif's property.

LynClif feared the relocation of the ditch and installation of the fish screen would disrupt its downstream fish rearing facility by diminishing water flow and contaminating the water, and therefore applied to the District for a permit to construct a pipe to deliver its water that flowed through Zingiber's property. LynClif stated in its brief that its original plan was to pipe the ditch across Zingiber's property in the location of the ditch as it was in 2006, but it decided that avoiding Zingiber's property altogether would be in LynClif's best interest. LynClif secured the permission of Kirt Martin, the only other downstream user, to pipe the ditch on the Justice Grade. The District granted LynClif a permit to construct the pipeline in the Justice Grade rightof-way located adjacent to Zingiber's property. The pipe conveyed the flow of LynClif's appropriated water around Zingiber's property and delivered it to LynClif's property. Zingiber's .32 cfs water right was still delivered to the upstream edge of its property.*fn1 The pipe also conveys Kirt Martin's .04 cfs water right to the Padgett Ditch.

After the District issued the permit, Zingiber filed a declaratory action against the District in Case No. CV 2008-57, alleging that the District did not have the authority to grant the permit to Zingiber and seeking that the permit be declared void. Judge Melanson of the district court granted summary judgment to the District, holding that Zingiber did not have standing to challenge the District's actions. Zingiber timely appealed from the Final Judgments entered in that case.*fn2

LynClif subsequently brought a declaratory action in Case No. CV 2008-125 against Zingiber seeking a declaration that it had the unilateral right to pipe the portion of Padgett Ditch located on Zingiber's property either in the original location of the ditch on the property prior to 2006 or in the District's public right-of-way. The parties filed cross-motions for summary judgment. Judge Wood granted LynClif's motion, holding that it had the unilateral right to pipe the ditch in either location pursuant to I.C. § 42-1207.*fn3 LynClif constructed the pipe in the Justice Grade right-of-way pursuant to the District's permit. In order to ensure the piping did not injure Zingiber's water rights, the district court subsequently adopted a proposal by LynClif to deliver Zingiber's full water right to a concrete structure located at the point where the Padgett Ditch enters Zingiber's property. A Final Judgment was entered on July 13, 2009, holding that (1) LynClif had the right to pipe the ditch under the location of the ditch prior to 2006 or in the Justice Grade right-of-way pursuant to the permit issued by the District; (2) LynClif bears the responsibility of conveying Zingiber's water right to the concrete structure; and (3) LynClif is obligated to provide a measurement device at the concrete structure to ensure the delivery of Zingiber's full water right. Zingiber appealed that judgment.

Zingiber argues that the loss of the flow of the ditch across its property will injure its ability to irrigate and will also injure its wildlife and aesthetic interests. Zingiber argues that the district court erred in determining that LynClif had the unilateral right to pipe the portion of the ditch running across Zingiber's property through an off-premises right-of-way in Case CV 2008- 125. Zingiber further argues that the district court erred in determining that it did not have standing against the District in Case CV 2008-57.

III. ISSUES ON APPEAL

1. Whether the district court erred in determining that I.C. § 42-1207 gave LynClif the unilateral right to pipe the portion of the Padgett Ditch running across Zingiber's property in either the 2006 location of the ditch or along the Justice Grade right-of-way.

2. Whether the district court erred in providing that Zingiber's full water right was to be delivered to a concrete structure at the upstream edge of Zingiber's property where the Padgett Ditch enters it.

3. Whether the district court erred in determining that Zingiber lacked standing to challenge the District's issuance of the construction ...


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