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Lower Payette Ditch Company, A Ditch Company Existing Under the Laws v. Robert I. and Margaret Harvey

January 5, 2012

LOWER PAYETTE DITCH COMPANY, A DITCH COMPANY EXISTING UNDER THE LAWS OF THE STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
ROBERT I. AND MARGARET HARVEY,
DEFENDANTS-APPELLANTS.



Appeal from the District Court of the Third Judicial District of the State of Idaho, in and for Washington County. The Hon. Dennis E. Goff, District Judge.

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

2012 Opinion No. 1

Stephen W. Kenyon, Clerk

The judgment of the district court is affirmed.

This is an appeal challenging the district court's ruling that appellants were not the sole prevailing parties in this litigation. We affirm the judgment of the district court.

I.

Factual Background

Robert and Margaret Harvey (Defendants) own 220 acres of farmland on an elevated bluff that is near a section of an irrigation canal owned by the Lower Payette Ditch Company (Plaintiff) through which it delivers irrigation water to approximately 490 landowners and 13,000 acres of irrigated farmland. Defendants pump water from the Plaintiff's canal to irrigate their farmland.

On February 27, 2009, Plaintiff filed this action against Defendants. In its complaint, Plaintiff alleged that Defendants' irrigation of their farmland on the bluff caused landslides in 2003 and 2006 which damaged the canal; that as a result of the 2006 landslide a neighboring landowner whose property was also damaged in the landslide sued both Plaintiff and Defendants, which resulted in a jury verdict that 5% of his damages were caused by Plaintiff and 95% were caused by Defendants;*fn1 that there is continuing movement in the hillside below Defendants' farmland caused by their irrigation water; and that the only way to stabilize the hillside is for Defendants to stop the water from their irrigation practices. Plaintiff sought a declaratory judgment that it had no obligation to permit Defendants to continue pumping water out of the canal to irrigate their land on top of the bluff and an injunction enjoining them from continuing to do so. Defendants filed an answer denying the material allegations in the complaint and asking that Plaintiff not be granted any relief.

Plaintiff also sought a preliminary injunction. Based upon the written submissions by the parties and their oral argument at a hearing, the district court granted Plaintiff a preliminary injunction on June 4, 2009. The district court did not prevent Defendants from using canal water to irrigate their land, but it ordered that they could only do so on the condition that no surface irrigation water recharged the groundwater system. It ordered that all surface irrigation water be diverted away from the slide mass and that no excess irrigation water be applied to the crops being cultivated on their farmland.

Plaintiff later instituted proceedings alleging that Defendants were violating the injunction. In response, on July 15, 2009, the court added the following provisions to the preliminary injunction:

1) Within 14 days of July 7, 2009, the Defendants will install two (2) impeller flow meters at the outlet of each of the Defendants' pumps unless the parties' consultants jointly decide that the installation of only one impeller flow meter is necessary. Regular monitoring of the flow meters will be required and the results of such monitoring shall be shared with the Plaintiff as determined by the parties' consultants.

2) Within 14 days of July 7, 2009, the Defendants will install a soil moisture monitoring system on the property, the placement of the monitors and sensors to be agreed upon cooperatively by the parties' consultants. Regular monitoring of the soil moisture monitoring system will be required and the results of such monitoring shall be shared with the Plaintiff as determined by the parties' consultants.

3) Within 30 days of July 7, 2009, the Defendants shall install monitoring wells on the Defendants' property, if after consultation among the parties' consultants the consultants reach the conclusion that the installation of such wells is necessary. If the consultants jointly agree that the installation of monitoring wells on the property is necessary, but due to matters outside the control of the parties, the wells cannot be installed within 30 days of July 7, 2009, then the Defendant shall endeavor to install such wells as soon as is reasonably possible.

4) If the Defendants fail to do any of the things set forth in this Order in the time frame prescribed by this Order the Plaintiff shall have full access to the Defendants' property to enter the ...


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