OKLAHOMA CITY – Mark Twain purportedly wrote, “Whiskey is for drinking. Water is for fighting.”
A dispute over a farm pond in western Oklahoma went all the way to the state Supreme Court, where a Custer County farm family finally won its water fight.
The court ruled in support of Preston and Candy Masquelier, who built a pond to collect water from an unnamed tributary of the South Canadian River known locally as Crow Springs Creek. The creek is fed from an underground source on the Masqueliers’ property and flows downstream through several properties before it empties into the Canadian River.
The Masqueliers were sued by downstream farmers Mark and Jo Lana Farris, who contended the Masqueliers’ farm pond, constructed in January 2014, interfered with their own use of the water. Property of both couples abuts Crow Springs Creek.
When the Farrises discovered the dam had been built, Jo Lana Farris, owner of the Farris’ land, applied for a water-use permit from the Oklahoma Water Resources Board. The Farrises wanted to appropriate 68.75 acre-feet of water (22.4 million gallons annually) from the creek to irrigate 55 acres of fruit trees, crops and vegetables.
Around the same time two other downstream neighbors also filed applications for water-use permits of their own.
Subsequently the Masqueliers applied to the OWRB for a permit to appropriate 148 acre-feet of water (48 million gallons per year) from the creek. That included 45 a/f for irrigating pasture grass, wheat, soybeans, cotton, winter wheat, milo, peanuts, alfalfa, and Bermuda grass, plus 103 a/f for use in drilling and primary completion of oil and gas wells, on 286.5 acres of land in Custer County.
After the Farrises protested the application by the Masqueliers, the OWRB held a hearing, arrived at several “findings of fact” and imposed several conditions on the Masqueliers’ permit.
• The Water Board determined that 515 a/f of water per year is available for appropriation from the creek to downstream users, “an amount well in excess of that requested by the parties,” the Supreme Court noted.
• Water-use permits issued to the downstream property owners were superior because they were filed before the Masqueliers submitted their application.
• The Masqueliers would have to continually release at least 12.2 gallons of creek water per minute – an amount that was specifically requested by the Farrises at the hearing – to the downstream property owners.
• The Masqueliers had to agree not to interfere with then-existing domestic and appropriative uses of the downstream owners.
• The Farrises would need to impound or store water as a condition of their permit before they could claim the Masqueliers’ dam interfered with their water rights. Until or unless the Farrises constructed their own water storage system, they would be “unable to … establish that the Masqueliers’ proposed use will interfere with any existing or pending appropriative use,” the OWRB ruled.
Water feud examined in trial, 2 appellate courts
The Farrises filed suit against the Masqueliers in Custer County District Court in 2016, claiming they were not receiving “adequate water flow to meet their lawful riparian and appropriative rights to the creek’s waters.” They alleged unjust enrichment, nuisance, and negligence.
The matter went to trial in July 2017 and after four days a jury ruled in favor of the Masqueliers. The jury denied a request for an injunction against the Masqueliers and awarded court costs to the Masqueliers.
The Farrises claimed that the lack of natural stream flow “prohibited them from being able to adequately water their livestock or irrigate their crops,” and that impairment of the creek’s natural stream flow diminished their property’s value, the Supreme Court related.
Also, the Farrises objected to a jury instruction which stated that the Farrises “have failed to ever produce any actual evidence that the water that enters” the Masqueliers’ land “is not exiting it, particularly since the stream itself begins” on their property.
Furthermore, the jury instruction continued, the Farrises could not prove any interference with or injury to their permit uses “because they have never attempted to irrigate… have never attempted to capture and use the water.” Thus, they have “sustained no harm.”
The trial court denied the Farris’ motion to vacate or modify the judgment, authorized the Masqueliers to collect $41,182 in court costs incurred during the litigation but denied their request for attorneys’ fees.
The matter ended up before the Oklahoma Court of Civil Appeals, which reversed the trial court’s denial of a new trial.
In turn, the Masqueliers appealed to the Oklahoma Supreme Court, which overturned the Court of Civil Appeals, found that the trial court ruled correctly, reinstated the jury’s verdict, and sent the case back to the trial court “for a determination of the proper amount” of attorney fees to award the Masqueliers.
The Supreme Court concluded that the jury “evaluated the facts, evidence, and law in finding for the Masqueliers on all claims and their verdict should stand.”