Barnes v. Jackson

         2018 Opinion No. 4

         Appeal from the District Court of the Sixth Judicial District of the State of Idaho, Bannock County. Hon. David C. Nye, District Judge.

         The judgment of the district court is affirmed. Costs on appeal are awarded to respondent.

          Holden, Kidwell, Hahn & Crapo, PLLC, Idaho Falls, attorneys for appellant. D. Andrew Rawlings argued.

          Merrill and Merrill, Chartered, Pocatello, attorneys for respondent. Mary E. Shea argued.

          JONES, Justice.

         I. Nature of the Case

         This is an appeal from a district court's order granting summary judgment and dismissing a lawsuit brought by Chad and Jane Barnes ("Barnes^[1]") against Kirk Jackson ("Jackson"). In 2014, Barnes filed suit against Jackson seeking a declaration of forfeiture as to Jackson's water right ("Jackson's Right"). Barnes alleged that Jackson's Right was unused for the five-year statutory period and was therefore forfeited. The district court granted summary judgment in favor of Jackson. We affirm.

          II. Factual and Procedural Background

         Craig Bloxham ("Bloxham") was the sole owner of a water right (the "Parent Right"), which was issued to him in the Snake River Basin Adjudication ("SRBA") in 2004. Bloxham was the predecessor-in-interest to both parties in this appeal, i.e., Jackson's Right and Barnes' water right ("Barnes' Right") were created by the splitting of the Parent Right. The Parent Right was diverted from a source known as Spring Creek.

         On April 26, 2012, Jackson purchased a portion of Bloxham's property with the intent to live there and plant a twenty acre orchard to be irrigated by Spring Creek. Because Jackson did not purchase the entire Bloxham property, the water right appurtenant to the property was split in proportion to the division of land. On May 31, 2012, Jackson filed a Notice of Change of Water Right Ownership with the Idaho Department of Water Resources (the "IDWR"). The Parent Right was split into Water Right No. 29-14031, which Bloxham retained, and Jackson's Right. On January 31, 2014, Barnes purchased the remaining portion of Bloxham's property and obtained the water right appurtenant thereto (Barnes' Right).

         On August 29, 2014, Barnes filed a Complaint wherein he sought a declaration of forfeiture as to Jackson's Right. On January 15, 2016, Barnes moved for summary judgment arguing that Jackson's Right was not put to beneficial use from 2004 to 2012 and should therefore be forfeited. This assertion was based on the affidavit of Bloxham, who stated that he had not irrigated that portion of land, which later became Jackson's land, from 2004 to 2012. On November 17, 2016, the district court issued a Decision on Motion for Summary Judgment (the "Summary Judgment Decision").

         In the Summary Judgment Decision, the district court began by analyzing whether five years of nonuse had accrued on the Parent Right. The district court rejected Barnes' assertion that Jackson's Right should be forfeited because the Parent Right was not used to irrigate the land appurtenant to Jackson's Right from 2004 to 2012. The district court stated that any kind of forfeiture, even partial, relates to the water right's nonuse, not the extent of the use/nonuse within the property to which the water right is appurtenant. Thus, simply because Bloxham chose not to irrigate the land that would later become Jackson's property does not mean that Bloxham forfeited the portion of the Parent Right that would later become Jackson's Right. The district court continued, reasoning that because Bloxham never forfeited the Parent Right, the statutory period restarted in 2012, when Jackson obtained his right. However, because that five-year period would need to run until April 2017, the five-year period had not accrued when Barnes filed the Complaint on August 29, 2014.

         The district court acknowledged that its holding was dispositive, but nonetheless addressed Jackson's resumption-of-use defense. The district court explained that, under the resumption-of-use doctrine, statutory forfeiture is not effective if, after five years of nonuse, an appropriator resumes use prior to the assertion of a claim of right by a junior appropriator. The district court noted that Jackson had used the water as early as 2012-two years before Barnes purchased his property; therefore, Barnes was barred from asserting that he had relied upon Jackson's unused water since 2012. The district court acknowledged Barnes' related argument- that he was somehow connected to his predecessor in interest, Bloxham, and therefore could ...