Case 2:99-cv-00145-TS Document 220 Filed 07/1612407 Page 1 of 26

IN THE LTNITED STATES COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

UNITED STATES OF AMERICA.

Plaintiff, FINDINGS OF FACT AND

CONCLUSIONS OF LAW

BRUCE LEE DLTNN. et al..

Defendants.

Case No. 2:99-CV-145 TS

This matter came before the Court for a two-day bench trial on April23-24,2007 . The

main issue before the Court was whether certain portions of Plaintiff s property at Scofield

Reservoir was subject to a use right, allegedly held by Defendants per three underlying deeds,

when the property is not covered by water of Scofield Reservoir. Also addressed was the scope

of the alleged use right, specifically, whether Defendants' current use is inconsistent with the

flowage and storage of water, a limitation imposed by the governing deeds.

John K. Mangum and Jared C. Bennett, Assistant United States Attorneys, appeared as

counsel for Plaintiff, the United States of America, seeking a further order quieting title in

Plaintiff as to the remaining issues presented at trial. E. Jay Sheen appeared and represented the

Dunn and Pannier Defendants (Bruce Lee Dunn, Richard Dunn, Helen Dunn, Gladys Butler,
Case 2:99-cv-00145-TS Document 220 Filed 07/1612007 Page 2 of 26

Lazy CP Limited Partnership, Clyde Pannier, general parfirer, and Joanne Granger). Steven R.

Paul appeared and represented the Jacobsen Defendants (Stephen C. Jacobsen, Charlyn J.

Dalebout, Paul A. Mancina, Jr. as Personal Representative of the Estate of Frances Mancina,

deceased, Helen L. Watts, John A. Watts, Hilda M. Hammond (formerly Hilda M. Madsen),

Robert G. Hammond, and David R. Gunderson and Gayle L. Hunting as co-trustees of the Leona

M. Gunderson Family Trust).

At trial, Plaintiff presented its case and called Alan Christensen and David Moore as

witnesses. The Dunn Defendants presented their case and called Clyde Pannier and Bruce Dunn

as witnesses. The Jacobsen Defendants presented their case and called Judith Lamb and Stephen

Jacobsen as witnesses. After the parties rested, the case was taken under advisement.

The Court, having observed and considered the witnesses' testimony, evidence presented

attrial, and the parties' arguments, makes the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

Background

1. This is an action to quiet title to land in various adjoining parcels of property

located in Carbon County, Utah.

2. Through its January 4,2006 Memorandum Decision and Order Granting Partial

Summary Judgment (the "January 2006 Order"),r the Court quieted title in Plaintiff as to all of

the land that was the subject of the Amended Complaint, but found that there was a genuine

'Docket No. 145.
Case2:99-cv-00145-TS Document220 Filed 07/1612007 Page 3 of 26

issue of material fact as to whether certain limited parts of that property were burdened by a

disputed right to use a portion of the property when not covered by water of Scofield Reservoir.

The Property in Dispute

3. The specific parcels (collectively, theooDisputed Property") that Defendants claim

are subject to a use right are as follows:

and

Defendants Bruce Lee Dunn and Richard C. Dunn claim an interest in two

parcels of real property in Carbon County, Utah, designated as parcel nos.

20-80-10 and 20-80-1 (subdivision ofparcel 20-80-8) in the offrcial

records of the Carbon County Recorder's Office and described as follows:

Beginning at a point which is 289.69 feet North along the section line

from the Southwest Corner of Section 10, Township l2 South, Range 7

East, Salt Lake Base & Meridian, and running thence: East 430.00 feet,

thence North 78.90 feet, thence lMest 430.00 feet, thence South 78.90 feet

to the Point of Beginning. Contains 0.779 Acres.

Beginning at a point which lies 368.59 feet North along the section line

from the Southwest Comer of Section 10, Township I2 South, Range 7

East Salt Lake Base & Meridian and running thence; East 430.00feet;

thence North 78.91 feet; thence lMest 430.00 feet, thence South 78.91 feet

to the point of beginning. Contains 0.779 Acres.

Defendant Stephen C. Jacobsen and Defendant Charlynn J. Dalebout claim

an interest in a parcel of real property in Carbon County, Utah, designated

as parcel no. 24-80 in the official records of the Carbon County Recorder's

Office and described as follows:

The West % of the Southwest l/4 of the Southeast 1/4 of Section 10,

Township 12 South, Range 7 East of the Salt Lake Meridian.

Defendant Paul Mancina claims an interest in a parcel of real property in

Carbon County, Utah, designated as parcel no. 24-80-1 in the official

records of the Carbon County Recorder's Office and described as follows:

Beginning at a point North 895 feet and East 525 feetfrom the Southwest

comer of section 10, Township I2 South, Range 7 East of the Salt Lake

Meridian and running thence VTest 120 feet; thence North 08 degrees East

b.
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72 feet; thence North 26 degrees 15 minutes West 125 feet; thence North

13 degrees lMest 65 feet; thence east 240feet to the county road right of

way; thence in a curve to the left having a radius of 420 feet for a distance

of 275 feet, more or less to the point of beginning,

Defendants Helen L. Watts and John A. Watts claim an interest in a parcel

of real property in Carbon County, Utah, designated as parcel no. 2,4'-80-2

in the official records of the Carbon County Recorder's Offrce and

described as follows:

The East % of the Southeast l/4 of the Southwest 1/4 of Section 10,

Township l2 South, Range 7 East of the Salt Lake Meridian.

Defendant Hilda M. Hammond claims an interest in a parcel of real

property in Carbon County, Utah, designated as parcel no. 24-80-3 in the

official records of the Carbon County Recorder's Office and described as

follows:

The l(est % of the Southeast I/4 of the Southwest I/4 of Section 10,

Township 12 South, Range 7 East of the Salt Lake Meridian.

Defendants David R, Gunderson and Gayle L. Hunting (as co-trustees of

the Leona M. Gunderson Family Trust) claim an interest in a parcel of real

property in Carbon County, Utah, designated as parcel no. 24-84 in the

official records of the Carbon Countv Recorder's Office and described as

follows:

The East % of the Southwest l/4 of the Southeast l/4 of Section 10,

Township I2 South, Range 7 East, Salt Lake Base and Meridian.

Defendants (l) Helen Watts and John Watts; (2) Stephen Jacobsen and

Charlyn Dalebout; (3) Hilda Hammond; and, (4) David R. Gunderson

and Gayle L. Hunting each claim an undivided25% interest in parcel no.

2A-80-4 of the official records of the Carbon County Recorder's Office

and described as follows:

Beginning at a point 895 feet North and 330feet East, more or

less, East of the Southwest corner of Section 10, Township 12

South, Range 7 East, Salt Lake Base and Meridian, a point which

is in the Paul Mancina Southfence line and on the High water line,

and running thence Northwesterly 250feet, more or less, along the

high water line to a point in the Paul Mancina North fence line;

d.

o

D '
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and running thence North 175 feet, more or less to theforty line;

thence West 590 feet, more or less to the North west corner of the

forty line, thence South 425 feet, more or less; thence East 300

feet, more or less to the point of beginning.

and

Beginning at a point 447.5 feet, rnore or less, North of the

Southwest corner of Section 10, Township 12 South, Range 7 Eqst,

Salt Lake Base and Meridian, and running thence East 430 feet,

rnore or less, to the State Road right-of-way; thence Northeasterly

along the State Road right-of-way to the Paul Mancina Southfence

line; thence West 430 feet, more or less, to the forty line; thence

South 447.5 feet, more or less, to the point of beginning. (Less the

State Raad right-of-w ay.)

and

Beginning at a point 447.5 feet North and 430 feet East of the

Southwest corner of Section 10, Township l2 South, Range 7 East,

Salt Lake Base and Meridian; thence East 890feet to theforty

line; thence North 722.5 feet; thence West 630feet, more or less;

thence Southwesterly along the State Road right-of-way to the

point of beginning, less the State Road rightof-way and the

railr o ad ri ght - of-w ay.

h. Defendant Gladys P. Butler claims an interest in a parcel of real property

in Carbon County, designated as parcel no. 24-80-6 in the official records

of the Carbon County Recorder's Office and described as follows:

Beginning 1320 feet North and 890 feet east of the Southwest corner of

Section 10, Township l2 South, Range 7 East of the Salt Lake Meridian;

thence East 430feet to theforty line; thence South 150feet; thence West

430 feet; thence North 150 feet to the point of beginning (ess the State

Road right-of-way).

i. DefendantLazy CP "P" Ltd. Partnership, whose general partner has been

Clyde "Bud" Pannier, claims an interest in a parcel of real property in

Carbon County, designated as parcel no. 24-80-7 in the official records of

the Carbon County Recorder's Office and described as follows:

Description: Beginning at the Southwest Corner of Section 10, Township

I2 South, Range 7 East, Salt Lake Base & Meridian; Thence North Two

Hundred Twenty-three and Seventy-five-hundredths (2 2 3. 7 5 ) feet ; Th ence

East Four Hundred Thirty (430) feet; thence South Two Hundred Twenty'

three and Seventy-five-hundredths (223.75) feet; Thence West Four
Case 2:99-cv-00145-TS Document 220 Filed 07/16/2AA7 Page 6 of 26

Hundred Thirty (430)feet to the point of beginning (Less the State Road

right-of-way).

j. Defendant Gladys P. Butler claims an interest in a parcel of real property

in Carbon County, designated as parcel no. 2.A'-l51in the official records

of the Carbon Countv Recorder's Office and described as follows:

The Southwest l/4 of the Southwest l/4 of Section I l, Township I2 South,

Range 7 East of the Salt Lake Base and Meridian,

4. This Disputed Property adjoins part of the south side of the east arm of Scofield

Reservoir.

The Three Deeds

5. The Disputed Property is described in the 1927 Price River Water Conservancy

District ("PRWCD") Deed (the"1927 PRWCD Deed"), as set forth in more detail below. The

1927 PRWCD Deed is the third of three related deeds to adjoining property. All three of these

deeds were executed by the same grantors in a three-day period in September of 192i. The

common grantors were E.B. Jorgensen and his wife Gertrude S. Jorgensen, of Salt Lake City.

6. The first deed (the "Railroad Deed")-recorded last among the three deeds-is a

warranty deed dated September 20, 1927, to the Denver and Rio Grande Western Railroad

Company, as grantee. The Railroad Deed conveyed a 200 foot wide ribbon of land ("the railroad

right of way''), 100 feet on either side of the centerline of the track of the route of the thenexisting relocated Pleasant Valley line of the railroad.

7. The second deed (the "1927 Madsen Deed"Frecorded first among the three

deeds-is a quitclaim deed dated September 21,1927, to two brothers, Neil M. Madsen of Price,

Carbon County, and Andrew C. Madsen, of Mt. Pleasant, Sanpete County. The 1927 Madsen
Case 2:99-cv-00'145-TS Document 220 Filed 07/1612007 Page 7 of 26

Deed quitclaimed, among other parcels, a fee simple interest in the property east and south of the

Railroad Deed, to which it referred. This land was generally higher in elevation than the land to

the west and north of it.

8. The third deed-the 1927 PRWCD Deed-is a warrantv deed to PRWCD. a

public corporation, dated September 22,1927. PRWCD was then the owner and operator of a

smaller predecessor reservoir to what is now Scofield Reservoir.

9. The 1927 PRWCD Deed conveyed, among other lands, the land west and north of

the Railroad Deed, to which the 1927 PRWCD Deed also referred. This land was generally

below or lower in elevation than the land to the east and south of it. This deed was the second

recorded of the three deeds, being recorded on Noventber 2, 1927 , minvtes after the 1927

Madsen Deed was recorded.

10. The 1927 Madsen Deed contains three separate paragraphs describing the

various lands quitclaimed thereby. The language of the 1927 Madsen Deed describes, in part,

land immediately adjacento the Disputed Properfy-specifically, that located on the south and

east side of the railroad right of way . The 1927 Madsen Deed does not explicitly describe the

Disputed Properfy.

I L As to each portion of land quit claimed, the 1927 Madsen Deed grants

the right on the part of the grantees, their heirs, administrators and assigns to use

any part or portion of said subdivision of land below and between the . . . 7630

contour line and the waterline of said reservoir, when the same are not actually

covered by the water therein, for any and all purposes not inconsistent with the

flowage and storage of water thereonf.]
Case 2:99-cv-00145-TS Document 220 Filed A711612007 Page 8 of 26

12. The 1927 PRWCD Deed contains several paragraphs describing the various lands

conveyed and warranted thereby, including the Disputed Property. After several paragraphs of

relevant land descriptions, the 1927 PRWCD Deed states that the grants are made "subjecto

right to graze or otherwise use any portion of said lands where not actually covered by water of

grantee's reservoir, heretofore granted to Neil M. Madsen and Andrew C. Madsen."

13. Through its January 2006 Order Granting Partial Summary Judgment, this Court

conclud[ed] that the 1927 Madsen Deed [discussed in more detail below] is

ambiguous as to whether or not, for the property in question in this action in

sections l0 and 1l (mentioned in the first paragraph of the lands description in

that 1927 Madsen Deed), the Madsen grantees and their successors were given

any of the reserved rights to use those lands when not submerged by waters of the

fScofield R]eservoir, as was more clear for the different lands described in later

paragraphs of that deed.2

The Two Dams and Early Transfers of Interest

14. The orisinal Dam at Scofield Reservoir was referred to as the Pleasant Valley

Dam, and was build in 1925-26 by the PRWCD.

15. The Pleasant Valley Dam was to be replaced by a new and larger dam, evenfually

located 800 feet downstream from the Pleasant Valley Dam.

16. This later dam was built by the Bureau of Reclamation ("BOR") between the

years of 1943 and 1946, and is the current dam at Scofield Reservoir.

2Docket No. 145.
Case2:99-cv-00145-TS Document220 Filed 0711612007 Page 9 of 26

17. Previous to construction of the new dam, efforts were made by the United States

to ensure the new dam was properly built and necessary property rights were secured, including

purchasing property from the Madsens in Section 10, above the railroad to facilitate the

relocation of the roadway and railroad rights of way.3

18. By l944,the Madsens involved with E.B. Jorgensen and the 1927 Madsen Deed

had passed away, except for Anna Madsen.

19. By quitclaim deed dated February 5,1945, and recorded August 9,1945, PRWCD

conveyed the lands it owned relating to the Scofield Reservoir to the United States.

20. The February 5,1945 deed included all of the land in the 1927 PRWCD Deed and

other adjoining or nearby lands acquired by PRWCD.

Extrinsic Evidence

Plaintiff's Conduct

21. ln January of 1946, pursuanto an inquiry by BOR regarding the grant of an

easement to the State for a highway, the regional counsel of the Solicitor's office of the United

States Department of the Interior opined that interpreting the 1927 PRWCD Deed to include a

right to graze or otherwise use the Disputed Property when not covered by water would be

incorrect.a

's Exs. 12, 40; R. at 39:22-25, 54-55.

's Ex. 57; R. at 182:2-13.

3Pl.

oPl.
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22. On or about November 17, 1959, the BOR represented on a map prepared by BOR

employees that the Disputed Property was held as "Fee title in the U.S. subjecto grazingand any

other use except when inundated."5

23. ln August of 1968, pursuant to another inquiry by the BOR, the Solicitor's office

of the United States Department of the Interior concluded that "[a]pparently the intention of the

grantor Jorgensen was to convey the whole title to that portion [of the disputed property] to the

IPRWCD] without any restriction whatsoever."6

24. In March of 1968, Foster Lamb, an appraiser for the BOR, concluded in an

appraisal report ("First Lamb Appraisal") concerning lands which included the Disputed

Property, that no private party owned any shoreline surface use rights, and proceeded.to assign a

zero value to such lands.T

25. In June of 1976, the BOR sent notices to properfy owners occupying the Disputed

Property indicating that they were trespassing on government land,8 The BOR held a meeting on

the issue, which several of the Defendants attended, and the meeting was subsequently resolved

in favor of the position of a use right in Defendants, except when the properfy was under water.e

5Def.'s Ex. B; R. at 101-02.

6Pl.'s Ex. 55, at2-3.; R. at 189:24-192:9.

7Pl.'s Ex. 50; R. at 187:1-i89:1.

8Def.'s Ex. HH.; R. at301 4-22.

'Pt. at255:6-1 l, l8-23; 303-04; 319:l-1 1.

10
Case 2:99-cv-00145-TS Document 220 Filed 07/1612007Page11of26

26. In 1986, BOR commissioned an appraisal ("Second Lamb Appraisal") of a

portion of the Disputed Property from its former employee, Foster Lamb.10

27, In a letter dated September 23, 1986, by Mr. Leon Mason, chief appraiser of the

Upper Colorado Region of the BOR, Mr. Mason represents that the purpose of the Second Lamb

Appraisal was to acquire the rights of the Madsen family to a portion of the Disputed Scofield

Reservoir Property-specifically, the Singleton Boat Camp discussed in more detail below-for

use other than flooding as needed by the United States.r'

28. The first full paragraph of Mr. Mason's evaluation of the Second Lamb Appraisal

states: "This appraisal involves an unusual situation where the federal government has fee title to

the land for flooding purposes only. The theoretical underlying estate of all uses other than

flooding is the most useful."r2

29. The letter goes on to state that

According to what the Appraiser can best determine fee title to the subject tract is

held in the United States, subject to grazing and any other use except when

inundated by the Schofield [sic] Reservoir. This right to use the subject parcel for

other purposes is owned by the Madsen Family.13

'oPl.'s Ex. 50.

I'Def.'s Ex. H.

t2Id.

t3Id.

l l
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30. Finally, the letter states that "[t]he fDisputed Property] was originally acquired by

the Price Water users from the Madsen family, reserving to the Madsens the rights to graze and

use for any other use except when inundated."ra

3 1 . By letter dated July 21 , 1989 , 

the BOR represented to Mike Jackson,

Superintendent of Scofield, Utah State Parks Department, that the Scofield Reservoir Property

was acquired in fee title by the United States, but that "[t]he deeds reserved the rights of the

former owners to retain grazingand other uses except when inundated."rs

32. The letter to Mr. Jackson was written to clarify the BOR's then current policy

regarding access to and use of the Scofield Reservoir Property, written to the state agency with

whom the BOR contracts to run the day-to-day operations of Scofield Reservoir.t6

33. The letter indicated that the BOR hadoomade a determination with respect

to the public use of these lands" and that determination was that the public could cross the lands

but could not "damage fences or other structures constructed in connection with the grazing and

other uses."l7

'41d.

'sDef.'s Ex. J; R. at 107-108.

r6R. at I 10:10-14.

r7Def.'s Ex. J; R. at 109.

l2
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34. The letter to Mr. Jackson in 1989 included as an attachment the 1959 BOR map,

created thirty years earlier but still used by the BOR to show the state of title of the subject

lands.rs

35. ln 1991, the BOR acquiesced to the building of a sewer system near the Mancina

Home, discussed below, on the Disputed Property.re

36. In 1999, Mr. Christensen, a BOR engineer, together with his supervisor, David

Kreuger, concluded, pursuanto an investigation, that no private parties owned any surface use

rights in the disputed property.20

37 . Plaintiff filed this action on March 5 " 1999 .

Defendants' Conduct

38. From 1927 until 1945, the Madsens used the Disputed Scofield Reservoir property

to graze sheep and cattle, as well as to farm.2r

39. During, and after, the construction period for the new dam, the Madsens

continued to graze and farm on the property, as well as lease it for the purpose of maintaining

boat camps.22

241:21-24:243-246.

13
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40. A commercial boat camp-the Singleton Boat Camp-which would

accommodate trailers and rent boats, and fwo "non-portable" cabins existed on the disputed

property at least by 1945.23

41. Over the years. homes and other structures have been erected on the Disouted

Property.2a

42. For example, Lee Diamante leased property from the Madsens, located within the

Disputed Property, and operated a caf6 and bar on the Disputed Property during the early 1950s,25

43. The Mancina Home, mentioned above, has been on the Disputed Property since

approximately 1952.26

44. The Panniers built a cabin on the Disputed Property around 1960.27

45. At least two small cabins were constructed bv the Madsens on the land as semipermanent structures.

46. The Jacobsen branch of the Madsen family has not placed cabins on the Disputed

Property.2e

'3 Id. at 243 :l | -25 ; 244:1 -245 :l -5 ; 246:6-12.

241d.

'5ld, at244-245:l-5.

26 Id. at 29 | :22-293 :l l.

'z,ld. at240:l-16.

281d. at241:7-10.

2eld. at 315:1-6.

t4
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47. None of the structures on the Disputed Property were ever made available for use

by the general public. The Disputed Property was fenced by the Madsens and their descendants

or successors on a continual basis since the mid-1950s, including no trespassing signs and locked

gates.3o

48. The land has been on the county's tax rolls during the entire time at issueo and

taxes have been paid by Defendants or their predecessors.3r

49. Throughout the 1960s and 1970s, at times, various members of Defendants'

families have transferred portions of the Disputed Property, and said transfers were made without

searching title, or obtaining warranty of title, title reports, or title insurance.32

Flow and Storage of Water at Scofield Reservoir

50. The Disputed Properfy exists below the pre-1927 datum elevation of 7630 feet,

which is, converted to post-1927 datum, an elevation of 7634.6 feet.33

51. At the time the relevant deeds were entered into, the parties to those deeds

anticipated that the existing predecessor dam would eventually be enlarged to an elevation of

7635 pre-1927 datum feet.3a

joId.

3tId.

321d.

33P1.

3oPl.

15
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52. The 7630 contour line mentioned in the deeds was anticipated by the parties to

the deeds to be an eventual high water mark for the Scofield Reservoir, five feet below the

enlarged dam elevation.3s

53. A dam enlargement very similar to, if not identical to, that anticipated by the

parties to the deeds at issue was achieved by BOR's construction of the current dam at Scofield

in the 1940s.36

54. For example, the design criteria for the current dam projected a high water mark

of 7630 feet.37

55. In theory, the water surface of Scofield Reservoir could reach a level of 7636,5

feet; however, this probability is at least lower than that of a 1OO-year storm.38

56. The historic hish water level recorded to date at Scofield Reservoir is7621.5 feet

above sea level.3e

57. Were the existing structures on the Disputed Property threatened with inundation,

it would likely take heavy equipment to move some of them.ao

35R. at 45:23-46:6.

36See id. at 45:23-46:5.

3'Pl.'s Ex. ll, at 4; Ex. 54; R. at 90:10-11.

3*R. at 155:5-13.

3ePl.'s Ex. 53, R. atSI:15-22.

aoR. at 272:18-272:3.

t6
Case 2:99-cv-00145-TS Document220 Filed 07/16,2047 Page 17 at26

58. Water levels at Scofield may change relatively rapidly and have been documented

to change as much as one to one-and-a-half feet per day for several weeks.o'

59. Such changes in water level may cause scouring, which dislodges material from

the shoreline.

60. Dislodged material may hinder the function of outlet works at the Scofield

Reservoir Dam by creating clogging.

61. To date, none of the structures on the Disputed Property have been inundated.a2

62. To date, reservoir scouring has damaged the landscaping on one portion of the

property within the Disputed Properfy.a3

atId. at 83:l-20.

a'zId. at253:I-15.

a3ld. at294:21-22.

17
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II. CONCLUSIONS OF LAW

Burden of Proof in Action

63 . In an action to quiet title, "the plaintiff must succeed by virrue of the strength of

his own title rather than the weakness of defendant's title."44

64. "[N]evertheless all the plaintiff need do is to prove prima facie that he has title,

which if not overcome by defendant, is sufficient."as

Defendants'Use Right

Ambiguity

65. Under Utah law, "[i]f the court finds [that] the agreement is integrated, then

parol evidence may be admitted only if the court makes a subsequent determination that the

language of the agreement is ambiguous.".a6

66. There has been no dispute in this action that the deeds at issue were not integrated.

Nonetheless, the Court here makes the preliminary and formal finding that the deeds are

integrated.

67. Pursuanto the January 2006 Order, this Court determined, through summary

judgment, and on all relevant credible evidence presented, that the deeds at issue-particularly

thel927 PRWCD and Madsen Deeds-were ambisuous. No motion to amend or reconsider this

*Ash v. state, 572 P.2d 1374, 1376 (Utah 1977).

45ld.

ouTangren Family Trust ex rel. Tangren v. Tangren,2006uT App 515, fl 10, 154 P.3d

180; see also The Cantamar, L.L.C. v. Champagne, 2006 UT App 321 ,I 142 P ,3d 140 (noting

that Court should make a preliminary consideration of all credible evidence, as opposed to mere

consideration of four corners of document).

l8
Case 2:99-cv-00145-TS Document 220 Filed 07/1612A07 Page 19 of 26

frnding was filed. The issue of whether the deeds are ambiguous, to the extent presented, was

not properly before the Court at trial, as it had been previously found as a matter of law.a7

Resolution of the Ambiguity

68. It is this Court's role to attempto resolve the ambiguity in order to "ascertain the

intention of the parties, especially that of the grantor."as

69. Because the parties to the ambiguous deeds have long since passed away, the

Court finds most relevant that evidence presented at trial which reaches furthest back in time to

the date of the relevant deeds and the parties to them.

70. The extrinsic evidence which was presented at trial, and which reaches furthest

back to the date of the deeds, supports that it was the intent of E.B. Jorgensen and his wife to

grant the Madsens a use right on the Disputed Property.

71. For example, as described by descendants within the Madsen family, the Madsens

who were parties to, or rather, grantees of the 1927 Madsen Deed actually used the Disputed

Property in a manner which would have been consistent with the grant of a use right referred to

inthe 1927 PRWCD Deed.

o'See also Order on Motions in Limine, Docket No. 213 at 8 ("As should be apparent,o

date, this Court has held thatthe 1927 Madsen Deed is ambiguous, and that is why we have

proceeded to this stage.")

assee Hartman v. Potter,596P.2d 653,656 (Utah 1979). The Court notes that the Utah

rule of deed construction that "the courts will resolve all doubts in favor of the free and

unrestricted use of property" does not apply once it has been determined that a deed is

ambiguous. See Pqnos v. Olsen andAssoc. Const.,Inc.,2005 UT App 446,nn 15, 18, I23P'3d

816 (applying rule in concluding that no ambiguity existed in deed). Application of the rule

otherwise could subvert ascertaining the true intention of the parties to the deeds at issue.

t9
Case2:99-cv-00145-TS Document220 Filed 0711612007Page 20 o'f 26

72. Moreover, this use continued unintemrpted by the descendants ofthe Madsen

family and their successors ininterest.

73. Indeed, the witness testimony which reached furthest back to the date of the deeds

at issue-that given by Mr. Pannier-indicated that a boat camp existed on the Disputed Property

by 1945.

74. On the other hand, Plaintiff did not present any extrinsic evidence, beyond

testimony by Mr. Moore on the proper interpretation of deeds according to modern title insurers,

tending to demonstrate a contrary intent, i.e., that E.B. Jorgensen and his wife- the grantors'of

the three deeds-did not intend to srant a use risht to Defendants.

7 5. The Court also finds that, while less probative to the ultimate issue, extrinsic

evidence which is more distant, both temporally and in degree of relationship to the original

parties to the deeds, supports the existence of a use right in Defendants.

76. For example, there is no indication that PRWCD questioned Defendants' use of

the Disputed Properfy previous to the quitclaim to Plaintiff in 1945.

77. Despite Defendants' continuing use of the Disputed Property, BOR made no

attempt to intervene during the period of land acquisition and/or preparation leading to

construction of the new dam at Scofield Reservoir in the 1940s.

78. In subsequent years, as Defendants' use of the Disputed Property continued, BOR,

while directing two inquiries to the office of the Solicitor, first in l946,then in 1968, which

resulted in opinions consistent with the position taken by Plaintiff today, BOR has historically

vacillated on its position regarding a use right in Defendants on the Disputed Properfy.

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Case 2:99-cv-00145-TS Document 220 Filed 07/1612AA7 Page 21 of 26

79. Notably, despite the 1946 indication by the Solicitor's office that there was no use

right, BOR proceeded to take the position that there was such a use right, as demonstrated by

BOR's continued failure to intervene in Defendants' use of the Disputed Property and BOR's

adoption of the 1959 map, which clearly represented a use right in Defendants.

80. Oddly, despite the 1946 opinion, BOR thought it necessary to make a second

inquiry to the Solicitor's offrce, identical to the first, regarding a use right in Defendants.

81. While BOR seemed to adopt the Solicitor's 1968 opinion, as evidenced by the

First Lamb Appraisal, and the actions leading to and including the 1976 meeting with

Defendants, BOR seemingly retumed to its original position after the 1976 meeting.

82, During all of this time, Defendants continued, unintemrpted (exceptingthe 1976

meeting) with their use of the Disputed Property.

83. BOR's 1976 re-adoption of its original position that its ownership interest was

subjecto Defendants' use right is further reflected through its 1986 documentation relating to

the second Foster Lamb appraisal, the 1989 communications to the Utah State Parks Department,

and its 1991 acquiescence toto the building of a sewer system near the Mancina Home.

84. This 1999 suit reflects a second reversal of position by BOR.

85. In short, the Court finds that the balance of the extrinsic evidence supports the

conclusion that Defendants have a use right in the Disputed Property, and that Plaintiff has not

met its burden of proof in light of Defendants' evidence.

86. Accordingly, the Court resolves the ambiguity in the deeds at issue by concluding

that Defendants have a use right in the Disputed Properfy.

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Case 2:99-cv-00145-TS Document220 Filed 07/1612AATPage 22 of 26

Scope of Defendants' Use Risht

87. As per the 1927 Madsen Deed, Defendants' and their successors' right is

to use any part or portion of said subdivision of land below and between the . . .

7630 contour line and the waterline of said reservoir, when the same are not

actually covered by the water therein, for any and all purposes not inconsistent

with the flowage and storage of water thereonf.]

88. As a preliminary matter, the Court notes that there is very little evidence before it

regarding grantor intent as to what type of purposes are "not inconsistent with the flowage and

storage of water."

89. However, because the 7630 contour line was anticipated to be a high water mark

for the Scofield Reservoir,ae the Court finds that the parties to the deeds at issue would have

understood that the property subject to Defendants' use right could be completely inundated at

times, however infrequently.

90. Moreover, the undisputed evidence shows that at least some of Defendants'

structures, if subject to reservoir scouring and/or inundation, could impede water flow and

storage.s0 There is no reason to believe that this dynamic would not have been present and

understood by the parties to the relevant deeds, particularly the grantor.

onSee supra, atl52.

5oR. at 88:21-89:18.

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91. Therefore, the Court finds that any pennanent structures on the Disputed Property,

such as the Mancina Home, fall outside the scope of Defendants' use right because placement of

permanent structures is clearly inconsistent with the flowage and storage of water as such

structures may not be timely moved should a threat of scouring and/or inundation arise.

92, Also, in the absence of any evidqnce to the contrary, the Court finds that

Defendants' fencing is not ause inconsistent with the storage and flow of water, in part, because

such would be an incident of grazing, a use explicitly mentioned inthe 1927 Madsen Deed, and a

use clearly practiced by the original Madsens, parties to the 1927 Madsen Deed.

93. However, it is much less clear whether the parties to the deeds at issue anticipated

that a large portion of the disputed property would be frequently inundated, thereby precluding

use of semi-permanent and/or mobile structures on the property.

94. Absent one modern incident of minimal scouring of shoreline landscaping, from

which there is no evidence of impediment of water storage or flow and which was subsequently

corrected by Defendants' installation of rip-rap,st none of Defendants' past or current uses of the

Disputed Properfy, including the placement of structures, has been subjecto inundation or

scouring-the triggering events which would render use inconsistent with the flowage and

storage of water-even during high water years.

95. Unfortunately, the Court has little or no evidence before it regarding the issues of

the precise locations of and probabilities that Defendants' structures could be inundated;

nonetheless, the Court acknowledges that such events may be possible.

"See supra, atll 62.

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Case 2:99-cv-00145-TS Document220 Filed 07/1612A07 Page 24 of 26

96. Therefore, the Court, in articulating the intent of the parties to the deeds at issue

based on the evidence presented attrial, finds that, to the extent that Defendants' semi-permanent

or mobile structures, excluding fencing, are reasonably threatened with imminent scouring and/or

inundation, and cannot or will not be relocated, for any reason, such structures are inconsistent

with the flowage and storage of water according to the deeds at issue.

97. The Court finds such structures to comprise:

those which cannot or will not be relocated-where such relocation

prevents scouring and/or inundation ofthe structure,

by Defendants,

at least one week before a risins water level from the reservoir. as

determined by BOR,

reaches an elevation where contact between the structure and the shoreline

would occur, were the then present and rising water level 10.5 feet higher

in elevation.

98. The Court bases this determination upon the following: in the face of rising water

levels and a reasonable threat of imminent inundation. to the extent Defendants' structures on the

disputed property will not or cannot be moved to higher ground at least one week before a

reasonable threat of inundation, as measured by the most rapid recorded reservoir water level

fluctuations represented by Plaintiff,t' uny such structures are inconsistent with the flowage and

storage of water as they may introduce debris to the outlet works of the dam.

b.

c.

d.

t'See supra, at fl 58.

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Case 2:99-cv-00145-TSDocument 220 Filed 07/1612407 Page 25 of 26

99. In reaching this conclusion, the Court notes that there is no evidence which

contradicts that the original parties to the deeds at issue would not have contemplated reservoir

water level fluctuations such as those presented by BOR.

ru. CONCLUSION

For the foregoing reasons, it is therefore

ORDERED that Defendants have a use right on the abovementioned properties to use any

part or portion of them below and between the 7630 (pre-1927 datum) contour line and the

waterline of Scofield reservoir, when they are not actually covered by the water therein, for any

and all purposes not inconsistent with the flowage and storage of water thereon. It is further

ORDERED that all permanent structures located on the Disputed Property, including the

Mancina Home, are inconsistent with the flowage and storage of water on the Disputed Property.

It is funher

ORDERED that Defendants' fences are not inconsistent with the flowase and storaee of

water. It is further

ORDERED that all semi-permanent or mobile structures are inconsistent with the

flowage and storage of water on the Disputed Properfy if, given the reasonable threat of

imminent inundation, they cannot or will not be relocated-where such relocation prevents

inundation of the structure-by Defendants, at least one week before a rising water level from the

reservoir (as determined by BOR) reaches an elevation where contact between the structure and

the shoreline would occur, were the then present and rising water level 10.5 feet higher in

elevation.

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Case 2:99-cv-00145-TSDocument 220 Filed 07/16120A7 Page 26 of 26

SO ORDERED.

DATED July 16,2007.

BY THE COURT:

ited States District Judee