Who's on the right side in Paradise water standoff? It's a pot-boiler

By Jen Beasley

December 12, 2005 | PARADISE -- In the arid West, it is said that water runs uphill toward money.

In Paradise, an ongoing contractual dispute between landowners and the town over water ownership and supply -- and who should pay for modernization of all of it -- has stagnated, leaving in its wake accusations, lawsuits and a conflict that continues to boil, unresolved.

Vere Johnson, Merv Weeks and Andy Johnson, who call themselves the Upper Stream Water Rights Owners and who all own land east of Paradise in Hyrum's Dry Canyon, say they have a grandfathered contractual claim to free water and that the town of Paradise must do whatever it takes to supply that water. Town officials disagree, and in 2002 filed a verified complaint asking that anyone claiming a right to the water produce documentation proving that such a right existed.

Mayor Lee Atwood said many of the people contacted signed affidavits saying they did not use and did not intend to use the water in question, and there were only a few who refused to do so. One of those few, Vere Johnson, said the town has no right to take that action in the first place.

"The suit was not a valid suit," said Johnson, 84. "The very thing they used for their suit proved our case beyond a shadow of a doubt. They haven't got a leg to stand on."

At the heart of the matter is a contract dated May 10, 1919, which granted the town of Paradise access to and use of the water from Hyrum Dry Spring -- which was then privately owned -- to distribute water from that source to the people of the town. In exchange for this access, it was agreed that the owners of the water would be allowed continued use of that water without charge.

Atwood said the suit came about after Merv Weeks, who owns Weeks Berries of Paradise and was using the spring water, was told by the state agricultural department that he had to clean his water, and Weeks claimed it was the town's job to do so, citing the 1919 agreement. Weeks said pressure had been shut off to the water, that he was entitled to have it, and that the town must do what was necessary to get it to him.

"Originally, when this started, Merv had some juice that he sold to a lady," said Atwood. "She took it down to Mardi Gras in New Orleans, and it grew some mold."

Atwood said during a lawsuit resulting from that, Weeks was told by the state agricultural department to treat his own water to meet minimum state standards or get on an approved water system. Atwood said the town denied Weeks' request to bring the system up to modern standards because it was unclear whether Weeks could even use the water for culinary purposes, and whether he had the right to the water in the first place.

"There are three questions," Atwood said. "One, do you have a right to the water? Two, is the use correct? And three, does the water meet EPA and federal regulations?"

Weeks said the May 10, 1919 document backs up his claims to the water, and that the town should do whatever it has to do to provide the water accordingly, including pressurizing it and cleaning it so that it meets modern day standards.

The 1919 document, however, is no longer around to verify or disprove any of these claims, although several affidavits referring to the agreement written by some of the original landowners still exist, and Vere Johnson said it is referenced in mortgages of the time.

"They conveniently have lost it," said Weeks of the contract. "Somebody has destroyed it. This is what they're trying to weasel out of. They thought by not having that record that they would get away with it."

Weeks said there is documentation establishing his right to use the water for culinary purposes, something the town disputes, based on a suit brought in 1920 by the town against E.J. Norman, one of the previous owners of Weeks' hydrant. The Dec. 17, 1921, ruling established that the hydrants could be used free of charge for culinary and stock watering purposes, as long as the hydrant "shall not be left running except when a beneficial use of said waters shall be made by the Defendants."

Weeks said he does use the water, according to the guidelines, for "beneficial use" and that because stricter standards for water cleanliness have been established since 1919, it is the town's responsibility, not his, to meet those standards in order to provide the water they agreed to provide. The town, Weeks said, had told him that he had to test the water monthly and bring in samples, before he said the mayor "fiddled with the line and changed the pressure.

"Why should I have to do everything?" Weeks said. "They should make sure I have clean water. Why shouldn't these grandfathered hydrants have the same things as the ones in town?"

Because the system is above the treatment facility for the town's water, Atwood said the contamination issue is one of the biggest concerns, because branches off of the main line could contaminate the whole system, which amounts to a huge liability for the town.

"How do we meet current water rules and recognize that it's not 1919 anymore and you're not going to go up and scoop some water, because it's going to get people sick, and if somebody's got a weak immune system it's going to kill them," Atwood said.

Atwood said the town council proposed installing a $126,000 mini-system to clean the water above the current treatment facility, but the offer was turned down because the town did not offer to pay for the whole thing. "I don't know that the town should have to pay for that on its own," Atwood said. "We thought that what we'd do is, the town would pick up half and they would pick up half and that would seem reasonable."

Johnson and Weeks both say they refuse to pay for any of it because it is the town's responsibility. Both men also say they intend to bill the town retroactively for all the years they say the agreement hasn't been met.

"Would they let someone take their water and not charge them rental?" Johnson said. "Look at all the water we should have gotten that they owe us for. It's an eternal water right."

Councilwoman Margaret Obray, whom both Johnson and Weeks cite as having been helpful in the attempts to resolve the dispute, says it isn't even possible for the town to foot the entire bill.

"The town can't even afford to do -- and shouldn't afford to do -- what they're asking," Obray said.

In addition to not providing potable water, Johnson alleges the town also is essentially reneging on the terms of the agreement by not giving the Upper Stream Water Rights Owners any sort of system pressure, which he says is a defacto denial of the water they are guaranteed. Johnson says he has never had consistent water pressure since he bought the land and water rights in 1972, and that the town's inaction amounts to theft.

"They've denied us water by not giving us pressure to supply the water," Johnson said. "That's been happening since the trade was made. They not only cut us off from culinary water, they cut us off from any water. It was a theft, a grand theft."

Atwood says that the town may have agreed to allow free use of the water, but only under the same conditions that existed in 1919 when the contract was made. He says the fact that Johnson admits that he's never had a reliable flow is consistent with the fact that water levels are seasonal, and have been since 1919. He says there was never any mechanized pressure system and that the town has in no way denied pressure, or broken the agreement.

"Wet years you'll have higher flows, drier years you'll have almost no flow," Atwood said. "It's pressured by gravity down the canyon. That's been our problem, we don't feel like it ever was consistent. We're pretty powerful people, but I don't think we've changed gravity."

Atwood says the agreement, then, gives hydrant owners water when there is water available, rather than requiring the town to make it available.

"Some of these agreements, if you read them, they think they should get free water forever and ever and ever," Atwood said. "But nobody gets that kind of deal in life. They can probably get what they had in 1919 forever and ever and ever, but I don't think they're entitled to more."

Ultimately, the two sides seem to disagree on what it means to "allow use" of the water. The Upper Stream Water Rights Owners say they believe it means that the town has to furnish the water. The representatives of the town say it means that the water may be used if and when the spring provides it. There exists no documentation specifically requiring that the town provide pressure, or provide modern water treatment systems, but there are an abundance of affidavits stating that the town did agree to "allow use" of the water for culinary and stock watering purposes.

The case for updating the system could be made from an affidavit dated June 24, 2002. In it, Charles Shelton, the previous owner of one of Vere Johnson's hydrants as well as the one shared by Johnson and Weeks, said it was his "understanding" that the 1919 agreement stipulated that the hydrants have "all the rights and privileges that the water hook ups in the town had, and should be treated the same except the water would be served without cost." But without the actual agreement, nobody knows for sure what was stipulated.

Vere Johnson says the town has to update to modern regulations and technologies with the grandfathered hydrants, because it is what is done in town. "How can you furnish water to people without furnishing pressure to them?" Johnson asked. "That doesn't hold any water at all. We helped produce that whole system. We provided the water to that town."

Obray says the two parties have to come to an agreement about what can reasonably be expected with an old document. "It's taking something you had in 1919 and moving it to now and saying, 'OK, now what does this mean?'" Obray said. "How do you know what the flow is or was? How can you as a town provide that water? If they have a shared water right, how much water are they entitled to? There's no easy answer."

Through the course of the events, things have become personal. Johnson and Weeks both say their names have been slandered in the dispute, that people believe they are trying to steal water, and that they want a written apology when it's all settled.

"We want the city, when this is over, to print how wrong they are," Weeks said.

Johnson, who lives in Providence and not on the property in question, said, "They accused me of stealing their water and now they're the thieves. I've spent a lifetime building an honorable name and then some guy over there who doesn't know the terms comes in and tries to destroy you."

Atwood denies the charges and says he knows of no such slander. "I don't know what I have to apologize for, because we've never said anything like that," Atwood said. "I can't even give that any response, because there's never been anything like that said that I know of."

Obray says the dispute is not personal in any way. "No one on the town council is trying to hurt anyone," Obray said. "It's not personal, but it always ends up being that way. In a small town it's hard to separate what the legal issue is from who the person is, but no one on the council is trying to hurt anybody, regardless of how it may seem to Merv and Vere."

Johnson says he knows the town representatives are good people, but maintains his assertion that they are wrong about the issue and that he deserves an apology. "If I were to live as neighbors with anybody, I wouldn't mind having it be the mayor out there," Johnson said. "But he's dead wrong on everything that's happened here."

Rather than going to court, the parties have attempted to reach a resolution through mediation with 1st District Court Judge Gordon Low. But after several scheduling conflicts and miscommunications between the Upper Stream Water Rights Owners, as well as fruitless meetings with the judge, no agreement has been reached.

"The mayor and the council have to represent the interests of the people in the town as best they can," Obray said. "And Merv and the rest are trying to represent their interests as best they can.

"This should have been resolved already," she said. "It's just been postponed so much. It goes on and on, and you just think we should be able to come to an agreement, but how can you come to an agreement with those separate interests?"

Vere Johnson and his nephew Andy, who could not be reached for this story, are not represented by counsel, and Johnson said they were not properly notified about some of the meetings because the lawyers tended to communicate with each other and not with the parties who did not have representation.

The issue settled down for a while as a result or the disorganization, and because Atwood said the town representatives got tired of scheduling all the mediation meetings. "The town had been setting up all the meetings," Atwood said. "Somebody else had to pick up the ball."

The Upper Stream Water Rights Owners finally did that when they came to a town council meeting Nov. 16 and proposed that mediation be brought up again, though it has yet to be scheduled because Judge Low has no openings on his calendar until after February.

Johnson says because he does not have the burden of paying for a lawyer, he'll fight as long as he has to until an agreement can be made. He is still hopeful there will be a resolution that everybody can live with, but insists that he should be paid retroactively for the water he has not gotten since 1972.

"We'll look at options," Johnson said. "But they have to know this: the clock is still ticking because they haven't given us any water, and the bill is going up. Andy and I, we can go on forever because it's not costing us anything. We don't have an attorney to pay, but their bill is still climbing, always climbing."

In the end, there exists only one certainty. Until the two sides can agree on what should be done and who should lay down the money, the water from Hyrum Dry Spring will not be flowing uphill toward anything.

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