## Facts

- Garetson Brothers and Foreland Real Estate, LLC owned agricultural land with a senior, vested groundwater right (HS-003) used for irrigation from the Ogallala Aquifer in Haskell County, Kansas.
- American Warrior, Inc. held junior groundwater appropriation rights (certificates 10,467 and 25,275) drawing from the same source.
- The aquifer in the area became over-appropriated, and Garetson alleged that American Warrior’s pumping reduced well yield and substantially impaired Garetson’s ability to beneficially use its senior right.
- Garetson sued in district court seeking injunctive relief under the Kansas Water Appropriation Act (KWAA), K.S.A. 82a-701 et seq.
- By agreement, the district court appointed the Kansas Department of Agriculture’s Division of Water Resources (DWR) and the chief engineer as referee under K.S.A. 82a-725 to investigate and report on the physical facts related to impairment.
- DWR reported that Garetson’s right was senior, American Warrior’s rights were junior, the area was over-appropriated, and pumping under the junior rights substantially impaired Garetson’s senior right.
- The district court issued a temporary injunction ordering American Warrior to stop pumping under its junior rights during the litigation.
- American Warrior appealed, disputing the district court’s evidentiary use of the DWR report and the grant of temporary injunctive relief.

## Issues

1. Whether a district court may consider a DWR report prepared under K.S.A. 82a-725 as evidence at a temporary injunction hearing without first requiring live testimony from the chief engineer or another DWR witness, so long as the parties can present rebuttal evidence.
2. Whether the district court abused its discretion in granting a temporary injunction under the KWAA to restrain a junior groundwater right holder from pumping based on substantial impairment of a senior right.

## Decision

- The Kansas Court of Appeals affirmed the temporary injunction.
- The court held it was proper to consider the DWR referee report as evidence at the temporary-injunction hearing without requiring DWR witness testimony, provided the parties were allowed to rebut the report.
- The court held the district court did not abuse its discretion in concluding the temporary-injunction factors favored protecting the senior right pending final adjudication.

## Legal Principles

- Kansas water rights are governed by statutory prior appropriation; priority controls (“first in time, first in right”), and junior rights are subordinate to senior and vested rights.
- The KWAA authorizes injunctive relief to protect senior water rights against impairment by junior appropriators. (K.S.A. 82a-716; K.S.A. 82a-717a.)
- When DWR is appointed referee under K.S.A. 82a-725, its report may be received as evidence of physical facts; the court must consider objections, and parties must be permitted to present rebuttal evidence.
- Appellate review of a temporary injunction is for abuse of discretion; the appellate court does not reweigh evidence or reassess credibility.

## Conclusion

The court upheld a temporary injunction curtailing junior groundwater pumping where the record—centered on a DWR referee report and supporting evidence—showed substantial impairment of a senior right, and it confirmed that a K.S.A. 82a-725 DWR report may be used as evidence at the temporary-injunction stage without live agency testimony if rebuttal is allowed.


Garetson Brothers v. American Warrior, Inc., 51 Kan. App. 2d 370, 347 P.3d 687 (Kan. Ct. App. 2015)