Bresee v. Barton

The Utah Court of Appeals recently issued its opinion in the case of Bresee v. Barton. The case dealt with issues of joint use of a pipeline and condemnation of an easement for water use.

The Bresees owned a piece of land that was surrounded on three sides by the Bartons' farmland. The Bartons irrigated their farmland with a combination of water from an irrigation company and water from a well on their property. Both sources of water were conveyed in a mainline through the Bartons' property. The Bresees also owned shares in the irrigation company, but did not have a way to convey their irrigation water to their property other than by using the Bartons' mainline. The Bresees (like their predecessors) entered into agreements with the Bartons under which the Bresees could convey their irrigation water through the Bartons' mainline in exchange for the Bartons being allowed to farm part of the Bresees' property. After a few years, a dispute arose between the Bartons and the Bresees, and the agreement was terminated. Shortly thereafter, the Bresees entered onto the Bartons' property, dug down to the mainline, installed a T-connection, and ran a water line back to the Bresees' property. Upon discovering this action, the Bartons removed the T-connection and restored the mainline to its prior state.

The Bresees then filed an action in district court claiming an easement to convey their water through the mainline. The Bresees relied on various legal theories, including eminent domain (condemnation). The district court first granted summary judgment against the Bresees, determining that the Bresees did not have an easement to use the Bartons' mainline. Following a trial, the district court again determined that the Bresees had no easement to access the Bartons' mainline, and consequently ruled in favor of the Bartons. The district court awarded trespass damages, punitive damages, and attorney fees to the Bartons. The Bresees appealed the decision to the Court of Appeals.

In its decision, the Court of Appeals reviewed Utah Code section 73-1-6, which gives a private right of condemnation for reservoirs, dams, canals, ditches, pipelines, and other water conveyance facilities. The Court noted prior case law that condemnation is allowed only if the plaintiff "does not interfere with the rights and use of the defendant's water." In this case, the Bartons had asserted that if the Bresees used the mainline, it would interfere with the Bartons' use of their water shares and water rights. The Bartons' assertions were supported by affidavit testimony. Although the Bresees had attempted to counter the Bartons' assertions through affidavit testimony of their own, the Bresees' affidavits had been struck by the district court because the affidavits contained legal conclusions, lacked foundation, and included inadmissible hearsay. This effectively meant that the Bartons' claims of interference were undisputed. Accordingly, the Court of Appeals concluded that the district court had properly concluded that the Bresees could not condemn an easement in the mainline due to the considerable interference that would result to the Bartons. Accordingly, the Court of Appeals upheld the district court's ruling in favor of the Bartons.

To read the full text of the opinion, click here.