Summary disposition in the Catherine Ham Young/Pierce Brosnan water dispute

(Officially captioned, Ham Young v. Lee, et al)

The facts spelled out in the decision are not entirely complete. One can gather though that, before the Brosnans were in the picture, the Lees altered a ditch running through their property in order to feed one or more artificial ponds there. Downstream, Ham Young owned property through which the ditch passed and on which she used the water to cultivate taro. Ham Young asserted that there is no longer a consistent flow of water to her property and sued the Lees for a declaratory judgment that the Lees had violated her water rights, and for a permanent injunction requiring the restoration of the ditch to its original state, and for money damages for damage to Ham Young's land and intentional infliction of emotional distress. (The Brosnans acquired the Lee property at some point and Ham Young successfully had them joined as defendants in the suit). The Lees presented evidence that the water merely flowed through the ponds and that any depletion before it exited their property and made its way downstream to the Ham Young property was minimal.

After cross motions for summary judgment, the 5th Circuit court found that the Lees' use of the water - running it through their ponds and returning it to the ditch - was not unreasonable, and ruled in favor of the Lees on the declaratory judgment and money damages claim. On the other hand, the court ruled for Ham Young in ordering that the ditch be restored to its original state.

All parties - Ham Young, the Lees, and the Bronsans - unsurprisingly appealed this somewhat schizophrenic circuit court decision.

Ham Young appealed the part of the order allowing the Lees to run water from the ditch through their ponds then back to the ditch, and she appealed the part denying that she had suffered any damages. The Lees and the Bronsans appealed in relevant part the portion of the order requiring that the ditch be restored to its original state, given the court's finding that Ham Young was not harmed by the diversion.

The appellate court noted that there was evidence that the water diverted to the ponds merely passed through them then returned to replenish the ditch before it left the property. The court noted that Ham Young did not argue that the diversion of the water through the ponds changed the water's ultimate volume or flow or physical characteristics, but that she argued rather that the diversion for the water's use in conjunction with ornamental ponds is per se unreasonable. (The court noted in a footnote that there are at least three other properties between the Lee property and the Ham Young property and that Ham Young did not present any evidence that the use of the water on the Lee property caused the alleged reduction of water flow to her property).

In the end, the court vacated the mandatory injunction requiring restoration of the ditch to its original state, and, finding that Ham Young had presented evidence of harm to her taro crop during 1999 and 2000, it remanded for further proceedings on her claim that the Lees caused her to suffer damages during that period.