## Facts

- Upstream landowners (including John and Martha Fuss) held appropriative rights within the Goshen County Irrigation District to divert water for irrigation on specified lands.
- After irrigation, excess water seeped from the irrigated lands into a drainage ditch, collected in a state-highway borrow pit, passed through a highway tunnel/culvert, and continued toward a natural drainage/stream.
- For many years, the Fusses diverted the seepage/waste water after it crossed under the highway and used it to irrigate additional land not covered by their decreed appropriative right.
- A downstream landowner, William Franks, obtained a state engineer permit to construct a dam at the borrow pit to intercept the seepage/waste water and apply it to beneficial use on his lands.
- The Fusses sued to prevent Franks from capturing the water at the borrow pit, alleging their historical use entitled them to continued access to the flow reaching their diversion point.

## Issues

1. Whether seepage/waste water that escapes irrigated lands, collects, and flows in a defined drainage is subject to appropriation by another user for beneficial use.
2. Whether the Fusses’ long-term downstream diversion and use of such water on non-righted lands created a protectable right that could bar Franks’s later, permitted interception upstream.
3. Whether any prescriptive or other non-permitted right was established by the Fusses’ historical use sufficient to defeat Franks’s permitted appropriation.

## Decision

- The Wyoming Supreme Court affirmed judgment for Franks.
- The court held Franks lawfully appropriated the seepage/waste water by obtaining a state engineer permit and capturing the water at the borrow pit for beneficial use.
- The court held the Fusses had no superior, legally protectable right to continue diverting the wastewater to irrigate lands outside their decreed appropriation.
- The court rejected the request to enjoin Franks’s diversion and construction/operation of the dam.

## Legal Principles

- Seepage or waste water that has left the control of the original irrigator and entered a defined drainage or collection area may be available for appropriation by others, subject to protection of established lawful rights.
- Long-standing use of seepage/waste water on lands not covered by an adjudicated appropriative right does not, without a valid appropriation, create an enforceable priority against a later permitted appropriator.
- A water right obtained through the statutory permitting process and applied to beneficial use is enforceable against downstream users who lack a legally recognized right to the same water.
- A claim of prescription to water requires proof of the elements of adverse use; opportunistic diversion of escaped wastewater, without more, does not establish a prescriptive priority over a later lawful appropriation.

## Conclusion

The court upheld a permitted interception and beneficial use of irrigation seepage/waste water and refused to treat long-term, non-decreed downstream use on additional lands as a right that could defeat a later lawful appropriation.


Fuss v. Franks, 610 P.2d 17 (Wyo. 1980)