ARTICLE 1 - CARE, MAINTENANCE AND PROTECTION OF IRRIGATIONWORKS
41-5-101. Ditches; generally.
Theowner or owners of any ditch for irrigation, or other purposes, shall carefullymaintain the embankments thereof so that the water of such ditch may not floodor damage the premises of others.
41-5-102. Ditches; jointly owned; action to recover proportionateshare of work.
Inall cases where irrigating ditches are owned by two (2) or more persons and one(1) or more of such persons shall fail or neglect to do his, her or theirproportionate share of the work necessary for the proper maintenance and operationof such ditch or ditches or to construct suitable head gates or measuringdevices at the points where water is diverted from the main ditch, such owneror owners desiring the performance of such work as is reasonably necessary tomaintain the ditch, may, after having given ten (10) days written notice tosuch owner or owners who have failed to perform his, her or their proportionateshare of such work, necessary for the operation and maintenance of said ditchor ditches, perform his, her or their share of such work, and recover thereforfrom such person or persons so failing to perform his, her or their share ofsuch work in any competent court having jurisdiction of the matter, the expenseor value of such work or labor so performed.
41-5-103. Ditches; jointly owned; lien for work.
Uponthe failure of any co-owner to pay his proportionate share of such expense asmentioned in W.S. 41-5-102, within thirty (30) days after receiving a statementof the same as performed by his co-owner or owners, such person or persons soperforming such labor may secure payment of said claim by filing an itemizedand sworn statement thereof, setting forth the date of the performance and thenature of the labor so performed, with the county clerk of the county whereinsaid ditch is situated, and when so filed it shall constitute a valid lienagainst the interest of such person or persons who shall fail to perform theirproportionate share of the work requisite to the proper maintenance of saidditch, which said lien when so taken may be enforced in the same manner asprovided by law for the enforcement of construction liens.
41-5-104. Ditches; bridge to be built when ditch crosses public roads;costs of construction; failure to comply.
Whenany such ditch or watercourse shall be constructed across any public traveledroad, and not bridged within three (3) days thereafter, it shall be the duty ofthe county commissioners of the county in which said ditch and road arelocated, to put a bridge over said ditch or watercourse, and call upon theowner or owners of said ditch or watercourse to pay the expenses ofconstructing said bridge, and if payment thereof be refused, a civil action maybe maintained for the recovery of the same, together with all accruing costs.
41-5-105. When capital stock of irrigation companies assessable formaintenance.
Anyditch or irrigation company or association, all the property or capital stockof which is owned by farmers or others, owning lands under the line of suchcompany's or association's ditch, and receiving water therefrom, by reason oftheir being owners or stockholders in said company or association, shall havethe right to levy and collect such annual assessments on the capital stock ofsaid company, or members or owners of such association, whether said capitalstock be fully paid up or otherwise, as may be deemed necessary by the trusteesof said company, or a majority of the stock of such association, for thepurpose of maintaining its ditches, flumes, tunnels, and the payment of allnecessary expenses of such company; provided, that this section shall onlyapply to such water companies or associations whose capital stock or ditchproperty is wholly owned by persons or corporations owning land under the lineof their ditches, and using water therefrom by reason of being suchstockholders in said companies; and provided further, that said company orassociation shall have the right to close the headgate and refuse water to allsuch stockholders, owners or members who fail or refuse to pay said assessmentsafter ten (10) days notice thereof, in writing, made by the president, agent orattorney of said company or association.
41-5-106. Keeping fish out of irrigation systems.
Thegame and fish department of the state of Wyoming may construct and maintain, ator near the point of diversion where the water of any stream or reservoir isdiverted by any means of conveyance from its natural channel, some fit andproper device whereby all fish will be prevented from entering said means ofconveyance; provided, such device does not obstruct or diminish the flow ofwater through said means of conveyance; and provided further that thedetermination as to obstruction shall be within the discretion of the watercommissioner of the district within which such structure is placed subject toappeal to the division superintendent, and from the decision of the divisionsuperintendent to the state engineer.
41-5-107. Removal or destruction of bridges or flumes.
Wheneverany person, persons or corporation shall remove or destroy any bridge or flumewhich crosses any ditch, canal or other irrigation works, when said flume orbridge is in good condition a legal right for such crossing having beenacquired, said person, persons or corporations must replace said bridge orflume, in as good condition as before removal. If said bridge or flume isremoved by the owner or owners of the said ditch, canal or irrigation works; itshall be the duty of the water commissioner to keep the controlling works ofthe said ditch, canal or irrigation works closed until the said bridge or flumeis properly replaced. It shall be unlawful for any other person to remove ordestroy any such bridge or flumes. Any violation of this section shall bepunishable pursuant to W.S. 41-3-616.
41-5-108. Driving or floating logs, timber or lumber on streams.
(a) Any person, association or corporation desiring orintending to drive or float logs, timber or lumber down or upon any stream inthis state shall, before commencing operations apply to the state engineer fora permit to drive or float the same. Such application shall be in writing andshall state that the driving of such logs, timber or lumber will be conductedwith all possible expedition and in such manner as not to interfere with, orinjure any irrigating ditch or other property along the stream on which saiddrive is to take place, and the applicant shall be required by the stateengineer to give bond to the state of Wyoming in such sum as the state engineermay deem sufficient, conditioned for the conducting of said drive without delayand for the protection of the owners of irrigating ditches and property alongthe stream whereon said drive is to be made. When said permit is issued the saidapplicant may proceed to conduct said drive upon the stream or streams thereinmentioned. Provided, however, that no permit shall be granted allowing anylogs, timber or lumber to be left in or upon any stream so as to be frozen induring winter, and it shall be the duty of the state engineer to issue to allapplicants a license to float timber or lumber on all streams of sufficientcapacity, upon compliance with the provisions aforesaid.
(b) Anyone violating any of the provisions of this section, shallbe subject to penalty pursuant to W.S. 41-3-616.
41-5-109. Construction of acts.
(a) Nothing in this chapter contained, shall be so construed asto impair the prior vested rights of any mill or ditch owner, or other person,to the use of any such watercourse.
(b) This chapter shall in no wise be construed as impairing orabridging any rights already vested in any person or persons, company orcorporation by virtue of the law heretofore in force.
41-5-110. Prohibited acts; penalty for violation.
Itshall be unlawful for any person without authority, to willfully interfere withor damage any dam, diversion structure or means of conveyance whether jointlyowned by the person, on the property or in the lawful possession of another,with intent to injure any person, or for his own gain, to the injury of anyother person lawfully entitled to the use of such water, diversion structure ormeans of conveyance. Any violation of this section shall be punishablepursuant to W.S. 41-3-616.
41-5-111. Irrigation facility modification and maintenance.
(a) Any person who, acting directly or indirectly through anagent or representative, in trespass or in other violation of the rights of auser, wrongfully modifies an existing irrigation ditch or other irrigationfacility in any manner that diminishes the capacity or adversely affects theutility of the ditch or irrigation facility is liable to the users for allrestoration costs. If restoration is not feasible and the effort or cost ofmaintaining the modified ditch or facility is increased, then the person isthereafter liable to the users for the amount of increased maintenance thatresults from the modifications.
(b) For cases in which restoration is feasible, any adverselyaffected user may serve a written demand for restoration. If restoration isnot feasible and requires increased maintenance, efforts or costs, anyadversely affected user may serve a written demand for immediate and continuedmaintenance. A copy of this section shall be annexed to the written demand. The demand shall be delivered to the actor in person, or if the actor cannot befound then the demand shall be delivered conspicuously to the actor's usualplace of business or residence. If the actor fails to accomplish complete restorationor all the currently necessary maintenance within forty-eight (48) hours afterthe written demand is delivered in accordance with this subsection, the usermay perform the restoration and may do the maintenance that is then necessary,as well as that which becomes necessary thereafter, and may recover thereasonable costs thereof from the actor. If the modification is so gross thatrestoration cannot reasonably be completed within the forty-eight (48) hourperiod, then the duty to restore is satisfied when:
(i) Within twenty-four (24) hours after delivery of the demand,the actor undertakes a good faith effort to mitigate harm to other users and torestore the facility and the effort is:
(A) Commensurate with the magnitude of harm or potential harmto the users; and
(B) Continuously and diligently pursued to completion in atimely manner.
(c) Every user who provides the restoration or maintenanceshall have a lien on the actor's interest or property that is involved in themodification. If the property involved is land, the lien extends to one (1)acre, unless the modification extends or covers more than one (1) acre, inwhich case the lien shall extend to all the additional land covered by themodification. If the land subject to the modification is located in any city,town or subdivision, the lien shall extend to each entire lot upon which themodification is located. If the actor's interest or property is only a ditchright or reservoir right, or such, then the one (1) acre shall be at the sitewhere the water under the actor's ditch or reservoir right, or other interestis first applied to beneficial use.
(d) In order to have a perfected lien, a lien claimant shallfile with the county clerk a lien statement that conforms to the requirementsof W.S. 29-1-301, and shall notify the last known owner as provided in W.S.29-1-301. The county clerk shall file and index the statement as provided inW.S. 29-1-301. When so perfected, the lien may be enforced in the same manneras provided in W.S. 29-4-101 and 29-4-102 and is subject to the limitation inW.S. 29-2-109.
NOTE: Effective7/1/2011, this section will read as follows:
(d) In order to have a perfected lien, a lien claimant shall filewith the county clerk a lien statement that conforms to the requirements ofW.S. 29-1-312, and shall notify the last known record owner as provided in W.S.29-1-312. The county clerk shall record and index the statement as provided inW.S. 29-1-312. When so perfected, the lien may be enforced in the same manneras provided in W.S. 29-4-101 and 29-4-102 and is subject to the limitation inW.S. 29-2-109.
(e) If litigation is necessary to enforce the lien, theprevailing party shall be awarded reasonable attorney's fees and costs oflitigation, to be fixed and awarded by the court, unless the court finds thatthe nonprevailing party had reasonable grounds to expect to prevail.
(f) The remedies provided by this section are not exclusive butare supplemental to other remedies in law or equity. This section does not inany way alter or affect law regarding water rights, covenants, easements orother servitudes, or other rights.
(g) As used in this section:
(i) "Actor" means a person who wrongfully modifies anexisting irrigation ditch or other irrigation facility as specified insubsection (a) of this section;
(ii) "User" means an individual, ditch company whetherorganized or unorganized, irrigation district, or other person or entitylawfully permitted to use water under an adjudicated or other valid water rightwho uses a ditch or facility for conveyance of direct flow, or waste water, orstorage of water in the beneficial use of water under the water right.
ARTICLE 2 - BONDS AND LIENS FOR LABOR AND MATERIALS
41-5-201. Contractor's bond.
Whenever any ditch or canal company, orother owner or owners, shall contract with any person, persons or corporation,for the construction of its, his or their ditch, canal or reservoir, or anypart thereof, such company, owner or owners, shall take from the person,persons or corporation with whom such contract is made, a good and sufficientbond, conditioned that such contractor or contractors shall pay or cause to bepaid all laborers, mechanics, material men, ranchmen, farmers, merchants andother persons who supply such contractor or contractors, or any of his or theirsubcontractors with labor, work, material, or goods of any kind which shallenter into or become a part of such irrigation works, which bonds shall befiled by such company or other owner in the office of the county clerk in thecounty where the principal work of such contractor shall be carried on; and ifany such ditch or canal company, or other owner or owners, shall fail to takesuch bond, such ditch or canal company or other owner or owners shall be liableto the persons herein mentioned to the full extent of all such debts socontracted by such contractor, or contractors, or any of his or theirsubcontractors. Any such contractor or contractors may take a similar bond fromeach subcontractor to secure the payment of all debts of the kind abovementioned incurred by him, and file the same as above provided. All suchpersons mentioned in this section to whom any debt of the kind above mentionedshall be due from any contractor or subcontractor shall severally have a rightof action upon any such bond covering such debt taken as herein provided forthe recovery of the full amount of such debt. Provided, however, that in orderthat the right of action upon such bonds may exist, such persons or partiesherein granted such right shall comply with either of the following conditions,to-wit, first, an action in a court of competent jurisdiction, in the countywhere such bond is filed, shall be commenced within ninety (90) days after thelast item of indebtedness shall have accrued; or, second, an itemized statementof the indebtedness duly verified, shall, within ninety (90) days after thelast item of such indebtedness shall have accrued, be filed in the office ofthe county clerk of the proper county; and an action shall be brought in anycourt of competent jurisdiction of such county within three (3) months afterthe filing of such statement. In case an action is commenced upon the bond of acontractor liable for the claim, and in such case the result of such actionshall be binding upon the subcontractor, and his sureties, and in any case whena contractor has paid a claim for which a subcontractor is liable, suchcontractor shall bring action against the subcontractor and his sureties withinsixty (60) days after the payment of such claim.
41-5-202. Statement of mechanic's lien; delivery to owner of ditch;retention of unpaid amount from subsequent payments to contractor.
Everylaborer, mechanic, ranchman, farmer, merchant or other person performing anywork or labor or furnishing any material, or goods of any kind which enter intoand become a part of such irrigation works, to any contractor or subcontractorin the construction of any ditch, canal or reservoir, or any part thereof usedby such contractor or subcontractor in carrying on said work of construction,whose demand has not been paid, may deliver to the owner or owners of suchditch, canal or reservoir, or to its, his or their agent, a verified statementof the account, and thereupon such owner or owners or its, his or their agent,shall retain out of the subsequent payments to the contractor or contractorsthe amount of such unpaid account for the benefit of the person to whom thesame is due.
41-5-203. Statement of mechanic's lien; delivery of copy tocontractor; time limits for disputing claims; recovery by civil action;application of W.S. 41-5-201 through 41-5-203.
Wheneverany verified account mentioned in W.S. 41-5-202 shall be placed in the hands ofany such owner or owners or its, his or their agent, as above stated, it shallbe the duty of such owner or owners to furnish the contractor with a copy ofsuch verified account, so that if there be any disagreement between the debtorand creditor as to the amount due the same may be amicably adjusted, and if thecontractor, or subcontractor if he be the debtor, shall not, within ten (10)days after the receipt of such account, give the said owner or owners or its,his or their agent, written notice that the claim is disputed, he shall beconsidered as assenting to its payment, and the owner or owners or its, his ortheir agent, shall be justified in paying the same when due and charging thesame to the contractor. The person or persons to whom any such debt is due andwho shall deliver a verified account thereof as above provided, may recover theamount thereof in an action at law, to the extent of any balance due by suchowner or owners to the contractor at or after the time of delivering theverified account. Provided, that nothing contained in this section or in W.S.41-5-202 shall interfere with the right of action upon the bond or bondsprovided for in W.S. 41-5-201, or against the company or other owner, for thefull amount of any such debt in case of a failure to take a bond.
ARTICLE 1 - CARE, MAINTENANCE AND PROTECTION OF IRRIGATIONWORKS
41-5-101. Ditches; generally.
Theowner or owners of any ditch for irrigation, or other purposes, shall carefullymaintain the embankments thereof so that the water of such ditch may not floodor damage the premises of others.
41-5-102. Ditches; jointly owned; action to recover proportionateshare of work.
Inall cases where irrigating ditches are owned by two (2) or more persons and one(1) or more of such persons shall fail or neglect to do his, her or theirproportionate share of the work necessary for the proper maintenance and operationof such ditch or ditches or to construct suitable head gates or measuringdevices at the points where water is diverted from the main ditch, such owneror owners desiring the performance of such work as is reasonably necessary tomaintain the ditch, may, after having given ten (10) days written notice tosuch owner or owners who have failed to perform his, her or their proportionateshare of such work, necessary for the operation and maintenance of said ditchor ditches, perform his, her or their share of such work, and recover thereforfrom such person or persons so failing to perform his, her or their share ofsuch work in any competent court having jurisdiction of the matter, the expenseor value of such work or labor so performed.
41-5-103. Ditches; jointly owned; lien for work.
Uponthe failure of any co-owner to pay his proportionate share of such expense asmentioned in W.S. 41-5-102, within thirty (30) days after receiving a statementof the same as performed by his co-owner or owners, such person or persons soperforming such labor may secure payment of said claim by filing an itemizedand sworn statement thereof, setting forth the date of the performance and thenature of the labor so performed, with the county clerk of the county whereinsaid ditch is situated, and when so filed it shall constitute a valid lienagainst the interest of such person or persons who shall fail to perform theirproportionate share of the work requisite to the proper maintenance of saidditch, which said lien when so taken may be enforced in the same manner asprovided by law for the enforcement of construction liens.
41-5-104. Ditches; bridge to be built when ditch crosses public roads;costs of construction; failure to comply.
Whenany such ditch or watercourse shall be constructed across any public traveledroad, and not bridged within three (3) days thereafter, it shall be the duty ofthe county commissioners of the county in which said ditch and road arelocated, to put a bridge over said ditch or watercourse, and call upon theowner or owners of said ditch or watercourse to pay the expenses ofconstructing said bridge, and if payment thereof be refused, a civil action maybe maintained for the recovery of the same, together with all accruing costs.
41-5-105. When capital stock of irrigation companies assessable formaintenance.
Anyditch or irrigation company or association, all the property or capital stockof which is owned by farmers or others, owning lands under the line of suchcompany's or association's ditch, and receiving water therefrom, by reason oftheir being owners or stockholders in said company or association, shall havethe right to levy and collect such annual assessments on the capital stock ofsaid company, or members or owners of such association, whether said capitalstock be fully paid up or otherwise, as may be deemed necessary by the trusteesof said company, or a majority of the stock of such association, for thepurpose of maintaining its ditches, flumes, tunnels, and the payment of allnecessary expenses of such company; provided, that this section shall onlyapply to such water companies or associations whose capital stock or ditchproperty is wholly owned by persons or corporations owning land under the lineof their ditches, and using water therefrom by reason of being suchstockholders in said companies; and provided further, that said company orassociation shall have the right to close the headgate and refuse water to allsuch stockholders, owners or members who fail or refuse to pay said assessmentsafter ten (10) days notice thereof, in writing, made by the president, agent orattorney of said company or association.
41-5-106. Keeping fish out of irrigation systems.
Thegame and fish department of the state of Wyoming may construct and maintain, ator near the point of diversion where the water of any stream or reservoir isdiverted by any means of conveyance from its natural channel, some fit andproper device whereby all fish will be prevented from entering said means ofconveyance; provided, such device does not obstruct or diminish the flow ofwater through said means of conveyance; and provided further that thedetermination as to obstruction shall be within the discretion of the watercommissioner of the district within which such structure is placed subject toappeal to the division superintendent, and from the decision of the divisionsuperintendent to the state engineer.
41-5-107. Removal or destruction of bridges or flumes.
Wheneverany person, persons or corporation shall remove or destroy any bridge or flumewhich crosses any ditch, canal or other irrigation works, when said flume orbridge is in good condition a legal right for such crossing having beenacquired, said person, persons or corporations must replace said bridge orflume, in as good condition as before removal. If said bridge or flume isremoved by the owner or owners of the said ditch, canal or irrigation works; itshall be the duty of the water commissioner to keep the controlling works ofthe said ditch, canal or irrigation works closed until the said bridge or flumeis properly replaced. It shall be unlawful for any other person to remove ordestroy any such bridge or flumes. Any violation of this section shall bepunishable pursuant to W.S. 41-3-616.
41-5-108. Driving or floating logs, timber or lumber on streams.
(a) Any person, association or corporation desiring orintending to drive or float logs, timber or lumber down or upon any stream inthis state shall, before commencing operations apply to the state engineer fora permit to drive or float the same. Such application shall be in writing andshall state that the driving of such logs, timber or lumber will be conductedwith all possible expedition and in such manner as not to interfere with, orinjure any irrigating ditch or other property along the stream on which saiddrive is to take place, and the applicant shall be required by the stateengineer to give bond to the state of Wyoming in such sum as the state engineermay deem sufficient, conditioned for the conducting of said drive without delayand for the protection of the owners of irrigating ditches and property alongthe stream whereon said drive is to be made. When said permit is issued the saidapplicant may proceed to conduct said drive upon the stream or streams thereinmentioned. Provided, however, that no permit shall be granted allowing anylogs, timber or lumber to be left in or upon any stream so as to be frozen induring winter, and it shall be the duty of the state engineer to issue to allapplicants a license to float timber or lumber on all streams of sufficientcapacity, upon compliance with the provisions aforesaid.
(b) Anyone violating any of the provisions of this section, shallbe subject to penalty pursuant to W.S. 41-3-616.
41-5-109. Construction of acts.
(a) Nothing in this chapter contained, shall be so construed asto impair the prior vested rights of any mill or ditch owner, or other person,to the use of any such watercourse.
(b) This chapter shall in no wise be construed as impairing orabridging any rights already vested in any person or persons, company orcorporation by virtue of the law heretofore in force.
41-5-110. Prohibited acts; penalty for violation.
Itshall be unlawful for any person without authority, to willfully interfere withor damage any dam, diversion structure or means of conveyance whether jointlyowned by the person, on the property or in the lawful possession of another,with intent to injure any person, or for his own gain, to the injury of anyother person lawfully entitled to the use of such water, diversion structure ormeans of conveyance. Any violation of this section shall be punishablepursuant to W.S. 41-3-616.
41-5-111. Irrigation facility modification and maintenance.
(a) Any person who, acting directly or indirectly through anagent or representative, in trespass or in other violation of the rights of auser, wrongfully modifies an existing irrigation ditch or other irrigationfacility in any manner that diminishes the capacity or adversely affects theutility of the ditch or irrigation facility is liable to the users for allrestoration costs. If restoration is not feasible and the effort or cost ofmaintaining the modified ditch or facility is increased, then the person isthereafter liable to the users for the amount of increased maintenance thatresults from the modifications.
(b) For cases in which restoration is feasible, any adverselyaffected user may serve a written demand for restoration. If restoration isnot feasible and requires increased maintenance, efforts or costs, anyadversely affected user may serve a written demand for immediate and continuedmaintenance. A copy of this section shall be annexed to the written demand. The demand shall be delivered to the actor in person, or if the actor cannot befound then the demand shall be delivered conspicuously to the actor's usualplace of business or residence. If the actor fails to accomplish complete restorationor all the currently necessary maintenance within forty-eight (48) hours afterthe written demand is delivered in accordance with this subsection, the usermay perform the restoration and may do the maintenance that is then necessary,as well as that which becomes necessary thereafter, and may recover thereasonable costs thereof from the actor. If the modification is so gross thatrestoration cannot reasonably be completed within the forty-eight (48) hourperiod, then the duty to restore is satisfied when:
(i) Within twenty-four (24) hours after delivery of the demand,the actor undertakes a good faith effort to mitigate harm to other users and torestore the facility and the effort is:
(A) Commensurate with the magnitude of harm or potential harmto the users; and
(B) Continuously and diligently pursued to completion in atimely manner.
(c) Every user who provides the restoration or maintenanceshall have a lien on the actor's interest or property that is involved in themodification. If the property involved is land, the lien extends to one (1)acre, unless the modification extends or covers more than one (1) acre, inwhich case the lien shall extend to all the additional land covered by themodification. If the land subject to the modification is located in any city,town or subdivision, the lien shall extend to each entire lot upon which themodification is located. If the actor's interest or property is only a ditchright or reservoir right, or such, then the one (1) acre shall be at the sitewhere the water under the actor's ditch or reservoir right, or other interestis first applied to beneficial use.
(d) In order to have a perfected lien, a lien claimant shallfile with the county clerk a lien statement that conforms to the requirementsof W.S. 29-1-301, and shall notify the last known owner as provided in W.S.29-1-301. The county clerk shall file and index the statement as provided inW.S. 29-1-301. When so perfected, the lien may be enforced in the same manneras provided in W.S. 29-4-101 and 29-4-102 and is subject to the limitation inW.S. 29-2-109.
NOTE: Effective7/1/2011, this section will read as follows:
(d) In order to have a perfected lien, a lien claimant shall filewith the county clerk a lien statement that conforms to the requirements ofW.S. 29-1-312, and shall notify the last known record owner as provided in W.S.29-1-312. The county clerk shall record and index the statement as provided inW.S. 29-1-312. When so perfected, the lien may be enforced in the same manneras provided in W.S. 29-4-101 and 29-4-102 and is subject to the limitation inW.S. 29-2-109.
(e) If litigation is necessary to enforce the lien, theprevailing party shall be awarded reasonable attorney's fees and costs oflitigation, to be fixed and awarded by the court, unless the court finds thatthe nonprevailing party had reasonable grounds to expect to prevail.
(f) The remedies provided by this section are not exclusive butare supplemental to other remedies in law or equity. This section does not inany way alter or affect law regarding water rights, covenants, easements orother servitudes, or other rights.
(g) As used in this section:
(i) "Actor" means a person who wrongfully modifies anexisting irrigation ditch or other irrigation facility as specified insubsection (a) of this section;
(ii) "User" means an individual, ditch company whetherorganized or unorganized, irrigation district, or other person or entitylawfully permitted to use water under an adjudicated or other valid water rightwho uses a ditch or facility for conveyance of direct flow, or waste water, orstorage of water in the beneficial use of water under the water right.
ARTICLE 2 - BONDS AND LIENS FOR LABOR AND MATERIALS
41-5-201. Contractor's bond.
Whenever any ditch or canal company, orother owner or owners, shall contract with any person, persons or corporation,for the construction of its, his or their ditch, canal or reservoir, or anypart thereof, such company, owner or owners, shall take from the person,persons or corporation with whom such contract is made, a good and sufficientbond, conditioned that such contractor or contractors shall pay or cause to bepaid all laborers, mechanics, material men, ranchmen, farmers, merchants andother persons who supply such contractor or contractors, or any of his or theirsubcontractors with labor, work, material, or goods of any kind which shallenter into or become a part of such irrigation works, which bonds shall befiled by such company or other owner in the office of the county clerk in thecounty where the principal work of such contractor shall be carried on; and ifany such ditch or canal company, or other owner or owners, shall fail to takesuch bond, such ditch or canal company or other owner or owners shall be liableto the persons herein mentioned to the full extent of all such debts socontracted by such contractor, or contractors, or any of his or theirsubcontractors. Any such contractor or contractors may take a similar bond fromeach subcontractor to secure the payment of all debts of the kind abovementioned incurred by him, and file the same as above provided. All suchpersons mentioned in this section to whom any debt of the kind above mentionedshall be due from any contractor or subcontractor shall severally have a rightof action upon any such bond covering such debt taken as herein provided forthe recovery of the full amount of such debt. Provided, however, that in orderthat the right of action upon such bonds may exist, such persons or partiesherein granted such right shall comply with either of the following conditions,to-wit, first, an action in a court of competent jurisdiction, in the countywhere such bond is filed, shall be commenced within ninety (90) days after thelast item of indebtedness shall have accrued; or, second, an itemized statementof the indebtedness duly verified, shall, within ninety (90) days after thelast item of such indebtedness shall have accrued, be filed in the office ofthe county clerk of the proper county; and an action shall be brought in anycourt of competent jurisdiction of such county within three (3) months afterthe filing of such statement. In case an action is commenced upon the bond of acontractor liable for the claim, and in such case the result of such actionshall be binding upon the subcontractor, and his sureties, and in any case whena contractor has paid a claim for which a subcontractor is liable, suchcontractor shall bring action against the subcontractor and his sureties withinsixty (60) days after the payment of such claim.
41-5-202. Statement of mechanic's lien; delivery to owner of ditch;retention of unpaid amount from subsequent payments to contractor.
Everylaborer, mechanic, ranchman, farmer, merchant or other person performing anywork or labor or furnishing any material, or goods of any kind which enter intoand become a part of such irrigation works, to any contractor or subcontractorin the construction of any ditch, canal or reservoir, or any part thereof usedby such contractor or subcontractor in carrying on said work of construction,whose demand has not been paid, may deliver to the owner or owners of suchditch, canal or reservoir, or to its, his or their agent, a verified statementof the account, and thereupon such owner or owners or its, his or their agent,shall retain out of the subsequent payments to the contractor or contractorsthe amount of such unpaid account for the benefit of the person to whom thesame is due.
41-5-203. Statement of mechanic's lien; delivery of copy tocontractor; time limits for disputing claims; recovery by civil action;application of W.S. 41-5-201 through 41-5-203.
Wheneverany verified account mentioned in W.S. 41-5-202 shall be placed in the hands ofany such owner or owners or its, his or their agent, as above stated, it shallbe the duty of such owner or owners to furnish the contractor with a copy ofsuch verified account, so that if there be any disagreement between the debtorand creditor as to the amount due the same may be amicably adjusted, and if thecontractor, or subcontractor if he be the debtor, shall not, within ten (10)days after the receipt of such account, give the said owner or owners or its,his or their agent, written notice that the claim is disputed, he shall beconsidered as assenting to its payment, and the owner or owners or its, his ortheir agent, shall be justified in paying the same when due and charging thesame to the contractor. The person or persons to whom any such debt is due andwho shall deliver a verified account thereof as above provided, may recover theamount thereof in an action at law, to the extent of any balance due by suchowner or owners to the contractor at or after the time of delivering theverified account. Provided, that nothing contained in this section or in W.S.41-5-202 shall interfere with the right of action upon the bond or bondsprovided for in W.S. 41-5-201, or against the company or other owner, for thefull amount of any such debt in case of a failure to take a bond.
ARTICLE 1 - CARE, MAINTENANCE AND PROTECTION OF IRRIGATIONWORKS
41-5-101. Ditches; generally.
Theowner or owners of any ditch for irrigation, or other purposes, shall carefullymaintain the embankments thereof so that the water of such ditch may not floodor damage the premises of others.
41-5-102. Ditches; jointly owned; action to recover proportionateshare of work.
Inall cases where irrigating ditches are owned by two (2) or more persons and one(1) or more of such persons shall fail or neglect to do his, her or theirproportionate share of the work necessary for the proper maintenance and operationof such ditch or ditches or to construct suitable head gates or measuringdevices at the points where water is diverted from the main ditch, such owneror owners desiring the performance of such work as is reasonably necessary tomaintain the ditch, may, after having given ten (10) days written notice tosuch owner or owners who have failed to perform his, her or their proportionateshare of such work, necessary for the operation and maintenance of said ditchor ditches, perform his, her or their share of such work, and recover thereforfrom such person or persons so failing to perform his, her or their share ofsuch work in any competent court having jurisdiction of the matter, the expenseor value of such work or labor so performed.
41-5-103. Ditches; jointly owned; lien for work.
Uponthe failure of any co-owner to pay his proportionate share of such expense asmentioned in W.S. 41-5-102, within thirty (30) days after receiving a statementof the same as performed by his co-owner or owners, such person or persons soperforming such labor may secure payment of said claim by filing an itemizedand sworn statement thereof, setting forth the date of the performance and thenature of the labor so performed, with the county clerk of the county whereinsaid ditch is situated, and when so filed it shall constitute a valid lienagainst the interest of such person or persons who shall fail to perform theirproportionate share of the work requisite to the proper maintenance of saidditch, which said lien when so taken may be enforced in the same manner asprovided by law for the enforcement of construction liens.
41-5-104. Ditches; bridge to be built when ditch crosses public roads;costs of construction; failure to comply.
Whenany such ditch or watercourse shall be constructed across any public traveledroad, and not bridged within three (3) days thereafter, it shall be the duty ofthe county commissioners of the county in which said ditch and road arelocated, to put a bridge over said ditch or watercourse, and call upon theowner or owners of said ditch or watercourse to pay the expenses ofconstructing said bridge, and if payment thereof be refused, a civil action maybe maintained for the recovery of the same, together with all accruing costs.
41-5-105. When capital stock of irrigation companies assessable formaintenance.
Anyditch or irrigation company or association, all the property or capital stockof which is owned by farmers or others, owning lands under the line of suchcompany's or association's ditch, and receiving water therefrom, by reason oftheir being owners or stockholders in said company or association, shall havethe right to levy and collect such annual assessments on the capital stock ofsaid company, or members or owners of such association, whether said capitalstock be fully paid up or otherwise, as may be deemed necessary by the trusteesof said company, or a majority of the stock of such association, for thepurpose of maintaining its ditches, flumes, tunnels, and the payment of allnecessary expenses of such company; provided, that this section shall onlyapply to such water companies or associations whose capital stock or ditchproperty is wholly owned by persons or corporations owning land under the lineof their ditches, and using water therefrom by reason of being suchstockholders in said companies; and provided further, that said company orassociation shall have the right to close the headgate and refuse water to allsuch stockholders, owners or members who fail or refuse to pay said assessmentsafter ten (10) days notice thereof, in writing, made by the president, agent orattorney of said company or association.
41-5-106. Keeping fish out of irrigation systems.
Thegame and fish department of the state of Wyoming may construct and maintain, ator near the point of diversion where the water of any stream or reservoir isdiverted by any means of conveyance from its natural channel, some fit andproper device whereby all fish will be prevented from entering said means ofconveyance; provided, such device does not obstruct or diminish the flow ofwater through said means of conveyance; and provided further that thedetermination as to obstruction shall be within the discretion of the watercommissioner of the district within which such structure is placed subject toappeal to the division superintendent, and from the decision of the divisionsuperintendent to the state engineer.
41-5-107. Removal or destruction of bridges or flumes.
Wheneverany person, persons or corporation shall remove or destroy any bridge or flumewhich crosses any ditch, canal or other irrigation works, when said flume orbridge is in good condition a legal right for such crossing having beenacquired, said person, persons or corporations must replace said bridge orflume, in as good condition as before removal. If said bridge or flume isremoved by the owner or owners of the said ditch, canal or irrigation works; itshall be the duty of the water commissioner to keep the controlling works ofthe said ditch, canal or irrigation works closed until the said bridge or flumeis properly replaced. It shall be unlawful for any other person to remove ordestroy any such bridge or flumes. Any violation of this section shall bepunishable pursuant to W.S. 41-3-616.
41-5-108. Driving or floating logs, timber or lumber on streams.
(a) Any person, association or corporation desiring orintending to drive or float logs, timber or lumber down or upon any stream inthis state shall, before commencing operations apply to the state engineer fora permit to drive or float the same. Such application shall be in writing andshall state that the driving of such logs, timber or lumber will be conductedwith all possible expedition and in such manner as not to interfere with, orinjure any irrigating ditch or other property along the stream on which saiddrive is to take place, and the applicant shall be required by the stateengineer to give bond to the state of Wyoming in such sum as the state engineermay deem sufficient, conditioned for the conducting of said drive without delayand for the protection of the owners of irrigating ditches and property alongthe stream whereon said drive is to be made. When said permit is issued the saidapplicant may proceed to conduct said drive upon the stream or streams thereinmentioned. Provided, however, that no permit shall be granted allowing anylogs, timber or lumber to be left in or upon any stream so as to be frozen induring winter, and it shall be the duty of the state engineer to issue to allapplicants a license to float timber or lumber on all streams of sufficientcapacity, upon compliance with the provisions aforesaid.
(b) Anyone violating any of the provisions of this section, shallbe subject to penalty pursuant to W.S. 41-3-616.
41-5-109. Construction of acts.
(a) Nothing in this chapter contained, shall be so construed asto impair the prior vested rights of any mill or ditch owner, or other person,to the use of any such watercourse.
(b) This chapter shall in no wise be construed as impairing orabridging any rights already vested in any person or persons, company orcorporation by virtue of the law heretofore in force.
41-5-110. Prohibited acts; penalty for violation.
Itshall be unlawful for any person without authority, to willfully interfere withor damage any dam, diversion structure or means of conveyance whether jointlyowned by the person, on the property or in the lawful possession of another,with intent to injure any person, or for his own gain, to the injury of anyother person lawfully entitled to the use of such water, diversion structure ormeans of conveyance. Any violation of this section shall be punishablepursuant to W.S. 41-3-616.
41-5-111. Irrigation facility modification and maintenance.
(a) Any person who, acting directly or indirectly through anagent or representative, in trespass or in other violation of the rights of auser, wrongfully modifies an existing irrigation ditch or other irrigationfacility in any manner that diminishes the capacity or adversely affects theutility of the ditch or irrigation facility is liable to the users for allrestoration costs. If restoration is not feasible and the effort or cost ofmaintaining the modified ditch or facility is increased, then the person isthereafter liable to the users for the amount of increased maintenance thatresults from the modifications.
(b) For cases in which restoration is feasible, any adverselyaffected user may serve a written demand for restoration. If restoration isnot feasible and requires increased maintenance, efforts or costs, anyadversely affected user may serve a written demand for immediate and continuedmaintenance. A copy of this section shall be annexed to the written demand. The demand shall be delivered to the actor in person, or if the actor cannot befound then the demand shall be delivered conspicuously to the actor's usualplace of business or residence. If the actor fails to accomplish complete restorationor all the currently necessary maintenance within forty-eight (48) hours afterthe written demand is delivered in accordance with this subsection, the usermay perform the restoration and may do the maintenance that is then necessary,as well as that which becomes necessary thereafter, and may recover thereasonable costs thereof from the actor. If the modification is so gross thatrestoration cannot reasonably be completed within the forty-eight (48) hourperiod, then the duty to restore is satisfied when:
(i) Within twenty-four (24) hours after delivery of the demand,the actor undertakes a good faith effort to mitigate harm to other users and torestore the facility and the effort is:
(A) Commensurate with the magnitude of harm or potential harmto the users; and
(B) Continuously and diligently pursued to completion in atimely manner.
(c) Every user who provides the restoration or maintenanceshall have a lien on the actor's interest or property that is involved in themodification. If the property involved is land, the lien extends to one (1)acre, unless the modification extends or covers more than one (1) acre, inwhich case the lien shall extend to all the additional land covered by themodification. If the land subject to the modification is located in any city,town or subdivision, the lien shall extend to each entire lot upon which themodification is located. If the actor's interest or property is only a ditchright or reservoir right, or such, then the one (1) acre shall be at the sitewhere the water under the actor's ditch or reservoir right, or other interestis first applied to beneficial use.
(d) In order to have a perfected lien, a lien claimant shallfile with the county clerk a lien statement that conforms to the requirementsof W.S. 29-1-301, and shall notify the last known owner as provided in W.S.29-1-301. The county clerk shall file and index the statement as provided inW.S. 29-1-301. When so perfected, the lien may be enforced in the same manneras provided in W.S. 29-4-101 and 29-4-102 and is subject to the limitation inW.S. 29-2-109.
NOTE: Effective7/1/2011, this section will read as follows:
(d) In order to have a perfected lien, a lien claimant shall filewith the county clerk a lien statement that conforms to the requirements ofW.S. 29-1-312, and shall notify the last known record owner as provided in W.S.29-1-312. The county clerk shall record and index the statement as provided inW.S. 29-1-312. When so perfected, the lien may be enforced in the same manneras provided in W.S. 29-4-101 and 29-4-102 and is subject to the limitation inW.S. 29-2-109.
(e) If litigation is necessary to enforce the lien, theprevailing party shall be awarded reasonable attorney's fees and costs oflitigation, to be fixed and awarded by the court, unless the court finds thatthe nonprevailing party had reasonable grounds to expect to prevail.
(f) The remedies provided by this section are not exclusive butare supplemental to other remedies in law or equity. This section does not inany way alter or affect law regarding water rights, covenants, easements orother servitudes, or other rights.
(g) As used in this section:
(i) "Actor" means a person who wrongfully modifies anexisting irrigation ditch or other irrigation facility as specified insubsection (a) of this section;
(ii) "User" means an individual, ditch company whetherorganized or unorganized, irrigation district, or other person or entitylawfully permitted to use water under an adjudicated or other valid water rightwho uses a ditch or facility for conveyance of direct flow, or waste water, orstorage of water in the beneficial use of water under the water right.
ARTICLE 2 - BONDS AND LIENS FOR LABOR AND MATERIALS
41-5-201. Contractor's bond.
Whenever any ditch or canal company, orother owner or owners, shall contract with any person, persons or corporation,for the construction of its, his or their ditch, canal or reservoir, or anypart thereof, such company, owner or owners, shall take from the person,persons or corporation with whom such contract is made, a good and sufficientbond, conditioned that such contractor or contractors shall pay or cause to bepaid all laborers, mechanics, material men, ranchmen, farmers, merchants andother persons who supply such contractor or contractors, or any of his or theirsubcontractors with labor, work, material, or goods of any kind which shallenter into or become a part of such irrigation works, which bonds shall befiled by such company or other owner in the office of the county clerk in thecounty where the principal work of such contractor shall be carried on; and ifany such ditch or canal company, or other owner or owners, shall fail to takesuch bond, such ditch or canal company or other owner or owners shall be liableto the persons herein mentioned to the full extent of all such debts socontracted by such contractor, or contractors, or any of his or theirsubcontractors. Any such contractor or contractors may take a similar bond fromeach subcontractor to secure the payment of all debts of the kind abovementioned incurred by him, and file the same as above provided. All suchpersons mentioned in this section to whom any debt of the kind above mentionedshall be due from any contractor or subcontractor shall severally have a rightof action upon any such bond covering such debt taken as herein provided forthe recovery of the full amount of such debt. Provided, however, that in orderthat the right of action upon such bonds may exist, such persons or partiesherein granted such right shall comply with either of the following conditions,to-wit, first, an action in a court of competent jurisdiction, in the countywhere such bond is filed, shall be commenced within ninety (90) days after thelast item of indebtedness shall have accrued; or, second, an itemized statementof the indebtedness duly verified, shall, within ninety (90) days after thelast item of such indebtedness shall have accrued, be filed in the office ofthe county clerk of the proper county; and an action shall be brought in anycourt of competent jurisdiction of such county within three (3) months afterthe filing of such statement. In case an action is commenced upon the bond of acontractor liable for the claim, and in such case the result of such actionshall be binding upon the subcontractor, and his sureties, and in any case whena contractor has paid a claim for which a subcontractor is liable, suchcontractor shall bring action against the subcontractor and his sureties withinsixty (60) days after the payment of such claim.
41-5-202. Statement of mechanic's lien; delivery to owner of ditch;retention of unpaid amount from subsequent payments to contractor.
Everylaborer, mechanic, ranchman, farmer, merchant or other person performing anywork or labor or furnishing any material, or goods of any kind which enter intoand become a part of such irrigation works, to any contractor or subcontractorin the construction of any ditch, canal or reservoir, or any part thereof usedby such contractor or subcontractor in carrying on said work of construction,whose demand has not been paid, may deliver to the owner or owners of suchditch, canal or reservoir, or to its, his or their agent, a verified statementof the account, and thereupon such owner or owners or its, his or their agent,shall retain out of the subsequent payments to the contractor or contractorsthe amount of such unpaid account for the benefit of the person to whom thesame is due.
41-5-203. Statement of mechanic's lien; delivery of copy tocontractor; time limits for disputing claims; recovery by civil action;application of W.S. 41-5-201 through 41-5-203.
Wheneverany verified account mentioned in W.S. 41-5-202 shall be placed in the hands ofany such owner or owners or its, his or their agent, as above stated, it shallbe the duty of such owner or owners to furnish the contractor with a copy ofsuch verified account, so that if there be any disagreement between the debtorand creditor as to the amount due the same may be amicably adjusted, and if thecontractor, or subcontractor if he be the debtor, shall not, within ten (10)days after the receipt of such account, give the said owner or owners or its,his or their agent, written notice that the claim is disputed, he shall beconsidered as assenting to its payment, and the owner or owners or its, his ortheir agent, shall be justified in paying the same when due and charging thesame to the contractor. The person or persons to whom any such debt is due andwho shall deliver a verified account thereof as above provided, may recover theamount thereof in an action at law, to the extent of any balance due by suchowner or owners to the contractor at or after the time of delivering theverified account. Provided, that nothing contained in this section or in W.S.41-5-202 shall interfere with the right of action upon the bond or bondsprovided for in W.S. 41-5-201, or against the company or other owner, for thefull amount of any such debt in case of a failure to take a bond.
