CHAD BARNES and JANE BARNES, husband and wife, Plaintiffs-Appellants,
KIRK JACKSON, an individual, Defendant-Respondent.
Opinion No. 4
from the District Court of the Sixth Judicial District of the
State of Idaho, Bannock County. Hon. David C. Nye, District
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.
Nature of the Case
an appeal from a district court's order granting summary
judgment and dismissing a lawsuit brought by Chad and Jane
Barnes ("Barnes") 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.
II. Factual and Procedural Background
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.
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'
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").
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.
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 ...