Appellant Joe Johnson Company filed a complaint in district court against James T. Morgan seeking a determination of the validity and enforceability of its certificate of appropriation for water in Platte County, Wyoming. Morgan filed an answer in which he alleged adverse possession, laches, and estoppel as defenses and a counterclaim in which he sought damages for trespass.
Prior to trial, the parties agreed to abandon all issues except for determinations as to the validity and enforceability of appellant's certificate of appropriation and Morgan's affirmative defense of adverse possession.
During the course of the litigation, Morgan died. Appellee Jerry Landen, personal representative of the Morgan estate, was substituted as party defendant. Additionally, after Morgan's death, appellee Wyoming Production Credit Association of the Midlands intervened as a party defendant.
Following a trial to the court on May 5, 1986, the court found that Morgan possessed the area designated as the Lowica Reservoir in a manner adverse to the rights granted appellant by the certificate of appropriation. On July 14, 1986, the court *Page 712 filed its judgment and decree ordering, adjudging, and decreeing that appellant's certificate of appropriation of water for the Lowica Reservoir through the Lowica Ditch is not valid and enforceable against appellees, their successors, and their assigns.
We reverse.
The evidence before the district court showed that in 1918 the board of control issued a certificate of appropriation to appellant's predecessor in title for water flowing out of Fish Creek, a tributary of the North Laramie River, through the north and south branches of what is known as the Lowica Ditch and into the Lowica Reservoir. The water was appropriated for the purpose of irrigating approximately 315 acres of land located adjacent to the Lowica Ditch and Lowica Reservoir. At the time the certificate was issued, the lands upon which the Lowica Ditch and Lowica Reservoir were located had not yet been patented by the United States of America. Patents were subsequently issued subject to the certificate of appropriation.
In 1958, Joseph P. Johnson and Clara Lou Johnson purchased the acreage and the water rights covered by the certificate of appropriation. The Johnsons subsequently transferred their interest to appellant. Since 1959, when the diversion works were completed, the Johnsons have maintained the ditch. However, no water has ever been stored in the reservoir because its source, Fish Creek, is an intermittent stream with insufficient water to reach the reservoir except during periods of high runoff. The first known year that adequate runoff existed to fill the Lowica Reservoir was 1983.
In 1972, Morgan purchased the land upon which the Lowica Ditch and Lowica Reservoir are located. Prior to that time, Morgan's predecessor in title obtained a permit from the state engineer's office to drill a well on the land designated as Lowica Reservoir, and from 1973 to 1985, there being no water in the reservoir, Morgan grew alfalfa or hay on the land. The present dispute arose in 1983 when the runoff from Fish Creek was diverted away from the reservoir in order to protect Morgan's crops.
In its complaint against Morgan, appellant alleged that the diversion of water away from the reservoir interfered with the rights granted in the certificate of appropriation. In response, Morgan claimed that appellant was barred from asserting any interest in the water by virtue of Morgan's "actual, open, notorious, adverse, continuous and exclusive possession" of the reservoir for more than ten years.
The district court found that the certificate of appropriation gave appellant a valid water right in the Lowica Ditch and Lowica Reservoir but that, by maintaining a well and sprinkler system and planting, tending, and harvesting crops on the land constituting the reservoir, Morgan possessed the land in a manner adverse to appellant's right, thus extinguishing that right. On appeal to this Court, appellant in essence questions the district court's finding of adverse possession.
It is well established that to adversely possess real property, one must have "`actual, open, notorious, exclusive, and continuous possession of another's real property for the statutory period, which possession is hostile and under claim of right or color of tile.'" Sowerwine v. Nielson, Wyo.,671 P.2d 295, 302 (1983), quoting Farella v. Rumney, Wyo., 649 P.2d 185,186 (1982).
In the present case, the record demonstrates that appellant had a right to use the ditches and natural reservoir on Morgan's land. As long as Morgan did not interfere with appellant's use, Morgan could do as he pleased on his property. This included growing and irrigating crops. White v. Wheatland IrrigationDistrict, Wyo., 413 P.2d 252 (1966).
There is uncontradicted testimony that Morgan seeded, tended, and harvested hay on the reservoir land and that he obtained a well permit, drilled a well, and installed a sprinkler system in order to irrigate the hay. However, there is no showing that Morgan's activities were separate and exclusive uses inconsistent with *Page 713 appellant's right to use the reservoir for storage when water was available.
The trial court's finding that "[t]he storage of water on the lands would make it impossible to plow, cultivate, or grow crops on the land, or to operate a well or to operate the sprinkler irrigation system" may be correct, but these uses are not adverse to the use of, nor did they prevent appellant from using, the reservoir until 1983.
"The party claiming title by adverse possession carries the burden of proof as to each of the elements for the statutory period." Sowerwine v. Nielson, 671 P.2d at 302. Appellees failed to prove the essential element of exclusive possession.
Reversed and remanded with directions to enter a judgment and decree enjoining appellees from interfering with appellant's right to the use of its appropriation of water from Fish Creek and Lowica Reservoir through the Lowica Ditch for the irrigation of the lands described in the Certificate of Appropriation of Water, Certificate Record No. 38, Page 333.
THOMAS, J., filed a dissenting opinion in which URBIGKIT, J., joined.