Two members of the Big Horn Canal Board addressed the Big Horn County School District No. 4 board during a special meeting on July 26 regarding a manhole that is in the canal’s easement.
Representing the canal board at the school board meeting were Daryl Wills and Joe Wildman. They, along with Cannon McKim, Dean Rassmussen and Richard Russell, make up the board. Russell is the chair.
Also in attendance were Tom Farren, owner’s representative from WEMBER, Rick Nelson from GH Phipps Construction and school district business manager Andy DeGraw.
Prior to the canal board addressing the school board, Superintendent Dave Kerby explained the issue to those in attendance.
Kerby said that he had attended a meeting of the canal board the week before, and he knows it is the desire of that board to have the manhole removed. Kerby said that he had been given a document by Russell to explain the 125-foot wide right-of-way for the canal. The document referred to an agreement made in 1905 between the State Board Land Commissioners and the Big Horn Irrigation Company. Most of it had to do with the building of the canal, he said.
DeGraw and Kerby visited with some consultants and the school’s attorney, Tracy Copenhaver, regarding the matter. The manhole is within 44 feet of the centerline of the canal. Kerby said Copenhaver told him, “The property is ours to do with as we choose, so long as we don’t impede the canal company’s ability to go up and down that ditch road and to maintain the ditch.”
The cost to move the manhole would be $24,400, which does not include any engineering costs. Plus it would add at least a week to the construction schedule and keep A Street closed, limiting access to two residential properties above the construction site including emergency vehicles.
Kerby’s recommendation to the school board was to leave the manhole cover where it is while trying to maintain a neighborly relationship with the canal board. An example of that would be to move a phone pedestal that is in the right-of-way, too. Another example was to lower the manhole cover so it was under dirt and would not interfere with the canal board vehicles and/or grating the road.
Wills spoke for the canal board and stated they want the manhole moved. “According to our lawyer our prescriptive easement takes precedence over all your rights. Your property. We have the right to refuse trespass. We have the right to refuse construction on the canal. We are asking you to remove the manhole. We’ll give you 30 days and if you don’t we will take legal action. We will get an injunction. It’s very simple. Straight forward.”
Board member Kristin Schlattmann asked Wills about the canal’s concerns. Wills replied that the canal board’s concern is that they don’t want any construction on the Big Horn Canal that has not been
permitted by them. “It has to be our approval, and we have the right to refuse trespass. It has been proven by court cases in Wyoming. We have a 125-foot easement, and it is a 1904 right-of-way that precedes all of this. You’re trespassing and you need to remove the manhole,” said Wills.
Schlattmann said she understood that point but wanted to know if the canal board was concerned about damage being done to the canal. Wills said yes and that if the canal board had to dig in the canal and damaged something of the school’s, the canal board would not be responsible.
He continued to say that in the future there will be different members on the board and the actions of the current board will protect the new boards and the members of the canal.
Wildman spoke of a problem the canal board is having on a project called Lester Gulch. The project was in 1937 and was between the canal board and an irrigation district. At the time the four groups involved agreed to split the cost four ways. The project did not benefit the canal, but they did it to be good neighbors. “Everyone agreed to move the underway under the canal. Well, the underway went away and guess who had to pay. We did. Because all the people that had signed off on it were no longer alive and their heirs say no.”
Wills continued to say the canal board was unanimous in the decision and will proceed the way they voted. “And your lawyer fees will probably exceed the $24,000 so you might as well buck it up and do it and save some money.”
School board member Chris Kampbell asked about the other utilities that are going through the canal at the school site. Wills said, “Some of those were permitted by the canal board, and there may be some that weren’t. There were trespasses in the past, and we are correcting that.” He added that he doesn’t know about the specific location Kampbell was asking about, but if they find anything the people responsible will be asked to remove it.
DeGraw was asked his opinion by school board chair Audra Crouse. He said there were two opposing legal opinions and with the school board owning the property he would lean toward what the school attorney had advised. Wills stated that the district doesn’t own the property.
“You think you do, but you don’t. We got a prescriptive easement for the property, which precedes your right to use the property as you see fit. If I were in your shoes I would go back to the architect and bill him the $24,000. He made a big mistake. Didn’t do his research,” Wills said.
Crouse asked for some discussion from the school board members. First to speak was Brenton Paxton. “Move it, get if off there, be done with it. I have no idea what our attorney costs are going to be. If you guys want to get in a court battle with this, just to prove that we are right, then get it done. But I would say spend the money and move it.” He continued to say that he would lose time on a construction project.
Deb Craft asked if the school’s attorney knew it was a prescriptive easement. Some discussion about just what a prescriptive easement was took place. Kerby noted that in the documentation provided by the canal board there was nothing that showed “prescriptive.”
Both Kampbell and board member Heath Hopkin said they feel like the canal board is bullying and threating the school district.
A second special meeting was held on June 28. In attendance for the Big Horn Canal was Richard Russell.
All the school board members, Kerby, DeGraw, Farren and Nelson, were in attendance again.
Nelson gave a list of the other utilities that do run and/or will run through the same easement: treated water line, power line, gas, phone, tap to existing main and new tap that would go to the western side of the high school.
Nelson also explained that the moving of the sewer line and the treated water tap could result in the DEQ becoming involved. He said, “We have never, ever solved a situation on a construction project by fighting
as a group. We roll out the plans and sit down as a group. We solve the problem with the best interest of all involved.”
Russell asked if the district would consider a “hold harmless agreement.” Crouse said that the school district’s attorney had advised against it. The board voted to keep the manhole where it was; Paxton cast the lone dissenting vote.
The board did agree in good faith to move the other utilities out of the easement if possible. Russell said he would take the discussion back to the canal board.
BY BARBARA ANNE GREENE