Zundel v. Ramsdell

2024 UT App 88

THE UTAH COURT OF APPEALS

KERRY ZUNDEL AND DEBRA ZUNDEL,
Appellants,
v.
KARLEEN RAMSDELL, DENISE MCMURDIE, JERIANN STEVENSON,
AND BEAR RIVER CANAL COMPANY,
Appellees.

Opinion
No. 20230043-CA
Filed June 21, 2024

First District Court, Brigham City Department
The Honorable Spencer D. Walsh
No. 190100018

Troy L. Booher, Taylor P. Webb, and Michael N.
Zundel, Attorneys for Appellants
Whitney Hulet Krogue, Carol A. Funk, Christopher
A. Beins, and Gregory W. Marsh, Attorneys for
Appellees Karleen Ramsdell, Denise McMurdie, and
Jeriann Stevenson
Emily E. Lewis and Nathaniel E. Broadhurst,
Attorneys for Appellee Bear River Canal Company
Peter Gessel and Warren Peterson, Attorneys for
Amicus Curiae Utah Farm Bureau Federation

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

OLIVER, Judge:

¶1 Nearly eight years after purchasing property from Robert
Brough, Kerry and Debra Zundel sought judgment quieting title
to Brough’s shares of stock in the Bear River Canal Company
Zundel v. Ramsdell

(Bear River)—a nonprofit mutual irrigation corporation. 1 0F

Following the jury’s verdict that the Bear River shares were not
included in the property sale, the Zundels filed a post-trial motion
for judgment as a matter of law, which the district court denied.
On appeal, the Zundels argue the court should have granted their
motion. We disagree and affirm.

BACKGROUND

¶2 Robert 2 owned seventeen acres of farmland (the Property)
1F

in unincorporated Box Elder County through his trust, the Robert
Max Brough Revocable Trust (the Trust). The Property was
irrigated through Robert’s 15.87 shares of Bear River stock. On
June 6, 2007, Robert, through the Trust, conveyed the Property to
Brough Properties, LLC (Brough Properties), the membership of
which included Robert’s son, Curtis, and grandson, Ben. Brough
Properties intended to develop the Property into a residential
subdivision, and the real estate purchase agreement between the
parties established a plan under which Brough Properties would
make incremental payments to the Trust for the purchase of the
Property to generate income for Robert.

¶3 This purchase agreement did not mention water rights or
Robert’s Bear River shares. The warranty deed conveying the
Property from the Trust to Brough Properties (the First Deed) did

1. Nonprofit mutual irrigation corporations distribute water to
“shareholders who already own the right to use that water” and
allow them to pool their rights in the corporation “for convenience
of operation and more efficient distribution, and perhaps for more
convenient transfer.” Salt Lake City Corp. v. Cahoon & Maxfield
Irrigation Co., 879 P.2d 248, 251–52 (Utah 1994) (cleaned up).

2. Because several of the parties involved here share the same
surnames, we refer to them by their given names, with no
disrespect intended by the apparent informality.

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not mention water either. Brough Properties’ plan was to
incorporate the subdivision into Tremonton City, thus allowing
use of the municipal water infrastructure. But Ben later testified
that just hours after executing the First Deed, Robert suggested
that a portion of the subdivision include a park, which would be
irrigated through his Bear River shares. The parties also realized
the First Deed incorrectly named “Brough Properties” instead of
“Brough Properties, LLC.” So, to get their “ducks in a row” and
to correct the verbiage of the First Deed, Brough Properties
conveyed the Property back to the Trust. In this second deed (the
Second Deed), Brough Properties purported to convey the
Property back to the Trust, “[t]ogether with all water rights
appurtenant thereto, if any”—though the First Deed had not
conveyed any water rights to Brough Properties. Ben later
testified this was language the title company had inserted into the
Second Deed.

¶4 On June 15, 2007, the Trust again conveyed the Property to
Brough Properties in a third deed (the Third Deed), which also
included the language “[t]ogether with all water rights
appurtenant thereto, if any.” But Robert did not transfer his Bear
River shares to Brough Properties. Instead, nearly six months
later, in November 2007, Robert transferred his Bear River shares
to the Trust.

¶5 In 2011, after it became economically unfeasible to develop
the Property, Brough Properties sold it to the Zundels, also
“together with all water rights appurtenant thereto, if any,”
though Curtis acknowledged that Brough Properties did not own
any shares at the time of the sale. 3 Though there was nothing said
2F

“specifically” about water prior to the sale, the Zundels expected
their purchase of the Property to include water shares. But Robert
refused to discuss transferring his shares to the Zundels.

3. Brough Properties conveyed one parcel to Debra and Kerry
jointly and two parcels to Kerry alone. For ease, we refer to the
parcels together as “the Property.”

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Eventually Curtis promised to transfer the shares to the Zundels
after Robert’s death, believing he would be able to do so as
successor trustee of the Trust. But unbeknownst to Curtis, Robert
had amended the Trust, removing Curtis as successor trustee and
naming his three daughters—Karleen Ramsdell, Denise
McMurdie, and Jeriann Stevenson (the Daughters)—as successor
co-trustees.

¶6 Eventually, Robert transferred his Bear River shares from
the Trust to the Daughters. Robert had instructed the Daughters
not to give any of the Bear River shares to the Zundels, so after his
death, the Daughters decided to put the Bear River shares into a
lease pool, as they did not have farmland to irrigate with the
shares. The Zundels never contacted Bear River about the shares
or paid any assessment for use of water on the Property. But after
hearing the shares were entering the lease pool, the Zundels filed
a complaint against the Daughters seeking judgment quieting title
to the shares. 4
3F

¶7 The Daughters answered 5 and filed a motion for summary
4F

judgment, arguing, among other things, that the Zundels’ quiet
title claim failed as a matter of law because the Zundels could not
show that the Bear River shares were appurtenant to the Property
or that Robert intended to transfer the shares with the Property.
The Zundels then filed a cross-motion for summary judgment,
contending they could show that the water rights were
appurtenant and that Robert intended them to transfer with the
Property. In its memorandum decision on the cross-motions, the
district court denied summary judgment to both parties,
concluding there were genuine disputes of material facts

4. The Zundels also asserted claims for conversion and slander of
title, which are not relevant for purposes of this appeal.

5. In their answer, the Daughters asserted several cross-claims
against Brough Properties and Curtis and Ben as its members, but
these claims are not relevant to this appeal either.

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Zundel v. Ramsdell

regarding both the appurtenance of the Bear River shares and
Robert’s intent to transfer them.

¶8 After the close of discovery, the Zundels filed another
motion for summary judgment on their quiet title claim, arguing
the Bear River shares were appurtenant to the Property and the
issue of Robert’s intent to transfer the shares was resolved by the
unambiguous language of the Third Deed. The Daughters filed a
cross-motion for summary judgment, arguing they were entitled
to judgment on the Zundels’ quiet title claim because the shares
were not appurtenant to the Property as a matter of law and there
was no evidence that Robert intended to transfer them to Brough
Properties or to the Zundels. The court again denied both parties
summary judgment, concluding genuine disputes of material
facts still remained as to both appurtenance and intent.

¶9 At trial, the Zundels presented several witnesses. Their
first witness—a real estate appraiser specializing in farm and
ranch property—testified that in the real estate professional
community, the terms “water rights” and “water shares” were
used interchangeably. Ben testified that he, Curtis, and Robert had
“not given [water rights] a lot of thought” when they executed the
First Deed, but he also testified that the parties intended the
conveyance to include Robert’s Bear River shares. And he testified
he had purchased other property from Robert that did not include
a transfer of any shares. Curtis testified that Robert’s only water
rights were represented by his Bear River shares, and though
Brough Properties did not actually own any shares, Brough
Properties believed they obtained ownership of the shares
through the Third Deed and could transfer them to the Zundels.

¶10 Kerry testified that, though he and Debra bought the
Property from Brough Properties in 2011, his negotiations had
been with Robert. He testified that Robert had said nothing
“specifically” about water rights but later stated, “[Robert] knew
I was buying the irrigated ground.” Kerry also testified that Curtis
told him to stop discussing the Bear River shares with Robert, as

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Zundel v. Ramsdell

it upset him. Denise testified that Robert had amended the Trust
to remove Curtis as a successor trustee sometime after Brough
Properties sold the Property to the Zundels because Brough
Properties had never paid Robert any money for the conveyance
of the Property. Denise also read a portion of the Trust declaration
in which Robert listed his Bear River shares under their own
heading as “Water Stock,” separate from both his real property
and tangible personal property.

¶11 The Daughters then presented their case, including
testimony from the general manager of Bear River about several
transfers of stock Robert made both before and after the Third
Deed was executed in June 2007. He testified that Robert had
transferred some of his shares to a property buyer in 1992 and had
transferred more shares to a different buyer in February 2007. The
general manager also testified that Robert had transferred his
remaining shares to the Trust in November 2007 and finally to the
Daughters in 2016. The Daughters all testified that Robert had
been “adamant” about not transferring his remaining shares to
anyone—especially the Zundels.

¶12 The Zundels then moved for judgment as a matter of law
under rule 50 of the Utah Rules of Civil Procedure. They argued
the phrase “water rights” in the Third Deed unambiguously
referred to Robert’s Bear River shares and the district court should
decide as a matter of law that Robert intended to transfer the
shares. The court denied the motion, finding there were disputed
issues of fact and the jury needed to decide whether the Bear River
shares were appurtenant and whether Robert intended to transfer
them. After being instructed on each of these questions, the jury
found in a special verdict form that the Bear River shares were
appurtenant to the Property but that Robert did not intend to
transfer them when he sold the Property to Brough Properties in
2007.

¶13 The Zundels then filed a renewed motion for judgment as
a matter of law under rule 50(b)(3) of the Utah Rules of Civil

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Zundel v. Ramsdell

Procedure, arguing the plain language of the Third Deed
unambiguously manifested Robert’s intent and, thus, because the
jury had already decided that the shares were appurtenant, the
court should direct the verdict in their favor. In its memorandum
decision, the district court denied the Zundels’ renewed motion,
concluding that the “issue of Robert Brough’s intent was properly
given to the jury to decide as the finder of fact.” And the court
concluded that a “reasonable jury, considering all evidence
presented at trial, could find in favor of [the Daughters] on the
issue of Robert Brough’s intent.” The court then entered judgment
in favor of the Daughters on the Zundels’ quiet title claim.

ISSUE AND STANDARD OF REVIEW

¶14 The Zundels argue the district court erred in denying their
renewed motion for judgment as a matter of law. “We review [a]
district court’s ruling on a motion for judgment as a matter of law
for correctness, and in doing so accept as true all testimony and
reasonable inferences that support the jury’s verdict.” Meeks v.
Peng, 2024 UT 5, ¶ 62, 545 P.3d 226 (cleaned up). “Where [a]
district court has denied the motion, we will overturn that
decision only if the appellant can demonstrate that there was no
basis in the evidence, including reasonable inferences which
could be drawn therefrom, to support the jury’s verdict.” Id.
(cleaned up).

ANALYSIS

¶15 Utah law has long drawn a distinction between water
rights and shares in mutual irrigation corporations, which
represent these rights. See Southam v. South Despain Ditch Co., 2014
UT 35, ¶ 18, 337 P.3d 236 (noting that the value of water shares “is
in the water rights to which the shares afford access” but that “the
transfer of shares in a nonprofit mutual irrigation company” is
“not the transfer of water rights per se”); George v. Robison, 63 P.

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819, 820 (Utah 1901) (“The stock is merely the evidence of the
holder’s title to a certain amount of water.”). In 1943, the Utah
Code stated that water rights “shall be transferred by deed in
substantially the same manner as real estate, except when they are
represented by shares of stock in a corporation, in which case
water shall not be deemed to be appurtenant to the land.” See Act
of Feb. 24, 1943, ch. 105, § 1, 1943 Utah Laws 154, 154–55 (codified
at Utah Code § 73-1-10 (1953)). Our supreme court, in Brimm v.
Cache Valley Banking Co., 269 P.2d 859 (Utah 1954), interpreted this
language as creating a presumption that shares do not pass with
the land, which a grantee could overcome by showing “by clear
and convincing evidence that said water right was in fact
appurtenant and that the grantor intended to transfer the water
right with the land, even though no express mention of any water
right was made in the deed.” Id. at 864.

¶16 In 1996, this statutory language was incorporated as a new
provision in section 73-1-11, which read, “The right to the use of
water evidenced by shares of stock in a corporation shall not be
deemed appurtenant to the land.” Utah Code § 73-1-11(4) (1996).
Utah courts have “consistently held that this statute, as well as its
previous iterations,” gives rise to Brimm’s rebuttable
presumption. Sanpete Am., LLC v. Willardsen, 2011 UT 48, ¶ 36, 269
P.3d 118. Thus, to show they were entitled to the Bear River
shares, the Zundels were required to rebut the presumption that
the shares did not pass with the Property by showing by clear and
convincing evidence that (1) the shares were appurtenant to the
Property and (2) Robert intended to transfer them to Brough
Properties in 2007. 6 See id.
5F

6. The Daughters and Bear River argue that subsequent statutory
amendments leave the rebuttable presumption established in
Brimm on “shaky ground,” and they urge us to affirm the district
court on an alternative basis. But they do not explicitly ask us to
overrule Brimm—nor could we. See Ortega v. Ridgewood Estates
(continued…)

20230043-CA 8 2024 UT App 88
Zundel v. Ramsdell

¶17 The jury determined that while the shares were
appurtenant to the Property, Robert did not intend to transfer
them. The Zundels argue the district court should have granted
their renewed motion for judgment as a matter of law because the
plain language of the Third Deed manifested Robert’s intent,
allowing the court to resolve the issue rather than submitting it to
the jury. In the alternative, the Zundels argue they were entitled
to judgment as a matter of law because there was insufficient
evidence to support the jury’s verdict.

I. Ambiguity of the Third Deed

¶18 The Zundels argue the plain language of the Third Deed
unambiguously manifested Robert’s intent to transfer his Bear
River shares to Brough Properties in 2007 and, thus, the district
court should have decided intent as a matter of law on their
renewed motion. But during oral argument before this court, the
Daughters argued the Third Deed unambiguously showed
Robert’s intent to keep his shares. Thus, both parties contend that
the plain language of the Third Deed flows unambiguously in
their favor.

¶19 “Deeds are to be construed like other written instruments,”
and thus, “we determine the parties’ intent from the plain
language of the four corners of the deed.” Keith v. Mountain Resorts
Dev., LLC, 2014 UT 32, ¶ 21, 337 P.3d 213 (cleaned up). “If the
language of the deed is unambiguous, the intention of the parties
may be determined as a matter of law based on” this plain
language. Id. ¶ 22 (cleaned up). The parties’ intent is “open to
interpretation only when the words used are ambiguous,” id.
(cleaned up), meaning they are “capable of more than one

LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by
vertical stare decisis to follow strictly the decisions rendered by
the Utah Supreme Court.” (cleaned up)). Brimm remains good
law, the district court correctly applied it, and we see no reason to
affirm on an alternative basis.

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Zundel v. Ramsdell

reasonable interpretation,” Ocean 18 LLC v. Overage Refund
Specialists LLC (In re Excess Proceeds from Foreclosure of 1107
Snowberry St.), 2020 UT App 54, ¶ 23, 474 P.3d 481 (cleaned up).
“[I]f the court determines that either of the competing
interpretations could reasonably have been what the parties
intended when they entered into the contract, then the contract is
ambiguous.” Brady v. Park, 2019 UT 16, ¶ 55, 445 P.3d 395.

¶20 Here, both the Zundels and the Daughters advance
reasonable interpretations of the language of the Third Deed. The
Zundels argue that the only water rights Robert had were
represented by his Bear River shares and, thus, the Third Deed’s
reference to “all water rights appurtenant thereto, if any” could
only have been meant to refer to those specific shares. But the
Daughters contend that because water rights and water shares are
distinct legal concepts, see supra ¶¶ 15–16, Robert did not
understand the language of the Third Deed to refer to his Bear
River shares. Because both interpretations are reasonable
readings of the Third Deed, we conclude, as the district court did,
that the plain language of the phrase “[t]ogether with all water
rights appurtenant thereto, if any” is ambiguous. Thus, the district
court correctly concluded that intent was a factual question for the
jury.

II. Sufficiency of the Evidence

¶21 The Zundels also argue the district court should have
granted their renewed motion for judgment as a matter of law
because, even if the question of Robert’s intent was properly
before the jury, there was insufficient evidence to support the
verdict. “A party is entitled to judgment as a matter of law if ‘a
reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue.’” Meeks v. Peng, 2024 UT
5, ¶ 62, 545 P.3d 226 (quoting Utah R. Civ. P. 50(a)(1)). In ruling
on a motion for judgment as a matter of law, the district court
“must look at the evidence and all reasonable inferences in a light
most favorable to the nonmoving party.” Smith v. Volkswagen

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Zundel v. Ramsdell

SouthTowne, Inc., 2022 UT 29, ¶ 46, 513 P.3d 729 (cleaned up). And
“where the district court has denied the motion, we will overturn
that decision only if the appellant can demonstrate that there was
no basis in the evidence, including reasonable inferences which
could be drawn therefrom, to support the jury’s verdict.” Meeks,
2024 UT 5, ¶ 62 (cleaned up).

¶22 Here, there was sufficient evidence to support the jury’s
determination that Robert did not intend to transfer his Bear River
shares to Brough Properties in 2007. Evidence was presented
indicating that it upset Robert to discuss transferring his shares
and he had instructed each of the Daughters not to transfer any
Bear River shares to the Zundels. And there was evidence that
Robert knew how to transfer his shares to Brough Properties had
he wanted to. Robert transferred some of his shares when he sold
property to a buyer in 1992 and other shares to a different buyer
in February 2007—only a few months before the Third Deed was
executed. And Robert had also sold other property to Ben, which
did not include any Bear River shares.

¶23 There was also evidence indicating Robert did not
understand the phrase “water rights” in the Third Deed to refer
to his Bear River shares. In the Trust declaration, Robert listed his
Bear River shares separately from his real property, under a
heading that read “Water Stock.” There was evidence suggesting
the parties intended to incorporate the subdivision on the
Property into Tremonton City—anticipating access to culinary
water and no longer needing to irrigate the land—thus negating
the need for the Bear River shares to transfer in the Third Deed.
And a few months after the Third Deed was executed, Robert
transferred his shares to the Trust—not to Brough Properties.
Later, before his death, Robert transferred the shares from the
Trust to the Daughters.

¶24 Further, the purchase agreement and the First Deed
between the Trust and Brough Properties did not mention water
rights or water shares. And Ben testified that the phrase “all water

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rights appurtenant thereto, if any” was language inserted by the
title company into the Second Deed and then copied into the
Third Deed. Ben also testified that the Second Deed and the Third
Deed were executed to correct a mistake in Brough Properties’
name as it appeared in the First Deed.

¶25 The Zundels contend that this evidence was improperly
admitted because the Third Deed unambiguously manifested
Robert’s intent and thus intent should have been decided as a
matter of law. But, as we concluded above, see supra Part I, the
Third Deed is ambiguous, rendering intent a question of fact for
the jury to decide. And “whether competent or incompetent, all
evidence submitted to the jury must be considered by the court.”
Smith, 2022 UT 29, ¶ 46 (cleaned up). We conclude that the
evidence presented—viewed in a light most favorable to the
Daughters—was sufficient to support the jury’s determination
that Robert did not intend to transfer his Bear River shares.
Accordingly, the district court did not err in denying the Zundels’
renewed motion for judgment as a matter of law.

CONCLUSION

¶26 The Third Deed is ambiguous as to Robert’s intent to
transfer his Bear River shares. Thus, the issue was a question of
fact for the jury and the district court rightly refused to decide it
as a matter of law. Further, sufficient evidence supported the
jury’s finding that Robert did not, in fact, intend to transfer the
Bear River shares. We therefore affirm the district court’s denial
of the Zundels’ renewed motion for judgment as a matter of law.

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