Saturday, March 26, 2011

Lowry v. G&L Enterprises

The Utah Court of Appeals recently issued its opinion in Lowry v. G&L Enterprises, LLC. The case was between the Carol L. Lowry Irrevocable Trust and Fred Lowry (collectively, "Lowry") and G&L Enterprises LLC, Guy Palmer, and Lynda Palmer (collectively, "G&L").

Lowry and G&L own adjacent parcels of property near Manti in Sanpete County. A spring known as Crystal Springs is located on State property east of G&L's property. The water from Crystal Springs forms a natural stream that flows west across G&L's property to Lowry's property. Lowry has a right to use six-sevenths of the flow from the Springs, and G&L has the right to use the other one-seventh. A dispute arose when Lowry sought to replace the Crystal Springs stream on G&L's property with a pipeline. G&L opposed Lowry's efforts. Lowry filed suit, seeking to establish a prescriptive easement for a road crossing G&L's property.

Although Lowry only asked for a prescriptive easement across the road, which the district court granted, the district court also determined that Lowry was entitled to a prescriptive easement in the stream bed across G&L's property. The district court relied on Utah Code section 57-13a-102, which provides that a prescriptive easement for water conveyance may be established by continuous, open, and adverse use for twenty years. G&L sought review of the district court's decision from the Utah Court of Appeals.

The Court of Appeals identified the relevant issue as whether section 57-13a-102 applies to a natural stream. The Court of Appeals looked to section 57-13a-101's definition of a "water conveyance," which is "a canal, ditch, pipeline, or other means of conveying water." Based on this definition, the Court of Appeals determined that section 57-13a-102 applies only to artificially created watercourses, and not natural streams like Crystal Springs stream. Thus, the Court of Appeals ultimately concluded that the district court had erred in granting Lowry a prescriptive easement in Crystal Springs stream across G&L's property.

To read the full case, click here.

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