GOLDEN, Justice.
[¶ 1] Marvin Brent Rageth and Sherri L. Rageth (Rageths) irrigate 559.75 acres in Big Horn County, Wyoming, under an adjudicated appropriation of 8 cubic feet per second (c.f.s.) from Bitter Creek which is conveyed to their property a distance of 6.5 to 7 miles through the Sidon Canal owned by the Sidon Irrigation District (District) organized and existing under pertinent provisions of Wyo. Stat. Ann. Title 41, Chapter 7 (LexisNexis 2011). Rageths are not members of District, and their irrigated acreage is not located within District's boundaries. District comprises approximately 13,129.98 acres under an adjudicated appropriation of 179.57 c.f.s. from the Shoshone River and a supplemental supply from Bitter Creek.
[¶ 2] Rageths commenced an action against District seeking a declaration of their conveyance rights in the Sidon Canal, reimbursement of water delivery fees paid to District under protest for several past irrigation seasons, and the establishment of a reasonable annual water delivery fee in future years. In time, the parties executed a stipulation, approved by the district court, that Rageths have the perpetual right, as defined by their adjudicated water rights, to divert water from District's Bitter Creek diversion structure and convey such water through the Sidon Canal to their property, subject to an annual payment to District to be determined by subsequent court order, and that Rageths' perpetual conveyance right does not include any ownership interest in District's facilities.
[¶ 3] As for Rageths' remaining claims for reimbursement of past water delivery fees and establishment of a reasonable annual water delivery fee going forward, District moved for summary judgment, which Rageths opposed. Following a hearing on that motion, the district court granted District's motion. Rageths have timely appealed from that order in No. S-10-0141. The district court also entered its order awarding District's costs as the prevailing party, and Rageths have timely appealed from that order in No. S-10-0184. We consolidated these appeals for decision, and now reverse those orders and remand for further proceedings consistent with this opinion.
[¶ 4] In No. S-10-0141, the central issue presented is, in the absence of an agreement, what water delivery fee may an irrigation district charge a non-member who has a perpetual right to convey that non-member's adjudicated appropriation to that non-member's land outside the irrigation district's boundaries using the irrigation district's canal and related facilities. In No. S-10-0184, with respect to the award of costs to District, the resolution of that appeal turns on the outcome of the central issue presented in No. S-10-0141.
[¶ 5] Organized in 1929, District exists under the relevant provisions of Wyo. Stat. Ann. Title 41, Chapter 7 (LexisNexis 2011). District owns the Sidon Canal in Big Horn County, Wyoming, which was constructed in 1900 and has been in operation to the present. District covers approximately 13,129.98 acres with 179.57 c.f.s. of adjudicated water rights diverted from the Shoshone River through the Sidon Canal. District also has a permit for supplemental supply from Bitter Creek.
[¶ 6] In 2008, Rageths purchased 559.75 acres situated adjacent to the Sidon Canal with 8 c.f.s. of adjudicated water rights diverted from Bitter Creek at a structure built and maintained by District and conveyed through the Sidon Canal. Their water flows in Sidon Canal for a distance of approximately 6.5 to 7 miles to pump stations where the water is pumped above the canal and used in pivots to irrigate their land. Their land is not located within District's boundaries, and Rageths are not members of District.
[¶ 7] District and previous owners of Rageths' land had agreements establishing their payments for delivery of their water through the Sidon Canal, but these agreements had expired before Rageths' 2008 purchase of
[¶ 8] In July 2009, Rageths filed their action for declaratory judgment to establish a reasonable fee for the delivery of their adjudicated irrigation water through the approximately 6.5 to 7 mile stretch of the Sidon Canal and for reimbursement of alleged overpayments of delivery fees for the prior years. After the litigation was underway, the parties engaged in mediation and, as a result, they executed a stipulation, filed with the district court on April 28, 2010, that resolved issues of ownership and rights to the use of the Sidon Canal, but not the issues of establishing for the future a reasonable delivery fee and reimbursement of alleged overpayments of delivery fees for the prior years.
[¶ 9] With respect to those remaining issues, District filed its motion for summary judgment with supporting material; Rageths responded in opposition to that motion with supporting material; District filed its rejoinder; and the district court heard argument. Following that hearing, the district court granted District's motion and entered its order requiring Rageths to pay District the same per acre fee as District assesses its members on an annual basis.
[¶ 10] Rageths timely filed their notice of appeal from the summary judgment order and that is before us in No. S-10-0141. The district court also entered its order awarding costs to District as the prevailing party, Rageths timely filed their notice of appeal from that order, and that is before us in No. S-10-0184.
[¶ 11] Our standard of review for summary judgment is well known and need not be repeated here. See, e.g., Formisano v. Gaston, 2011 WY 8, ¶¶ 3-4, 246 P.3d 286, 288-89 (Wyo.2011).
[¶ 12] The district court granted District's summary judgment motion with this brief explanation:
In their appellate briefing, the parties agree that the Wyoming statutes applicable to irrigation districts, Wyo. Stat. Ann. Title 41, Chapter 7, and case law pertaining to those statutes do not apply to their dispute and are
[¶ 13] To reach a decision in this case, we find it useful to identify those other points on which the parties are in agreement. They agree that the provisions of Wyo. Stat. Ann. § 41-6-303 (LexisNexis 2011),
[¶ 14] Both parties also point to Wyo. Stat. Ann. § 41-5-102 and 103 as provisions that inform their discussion about establishing a ditch user's proportionate share of expenses. Rageths correctly observe that these provisions are not controlling authority to the dispute at hand, because by their strict terms they apply only in the case of an irrigating ditch owned by two or more persons. Nevertheless, Rageths maintain that these provisions confirm the legitimacy and validity of their position. District notes that these provisions are helpful in that they, like § 41-6-303, recognize the principle of proportionality. Thus, Wyo. Stat. Ann. § 41-5-102 (LexisNexis 2011) provides:
[¶ 15] Discussing these statutory provisions, Rageths observe they apply where there is joint ownership of irrigating ditches, which is not the situation in this dispute; District has made no claim that Rageths have failed or neglected to do their proportionate share of the work necessary for the proper maintenance and operation of the irrigating ditch (Sidon Canal); Rageths have never been provided the opportunity by District to do their proportionate share of such work; District has not given Rageths ten days written notice of the necessity of performing such work; District has not performed Rageths' proportionate share of such work and has not sought to recover from them "the expense or value of such work or labor so performed" by District. § 41-5-102. With respect to § 41-5-103, which Rageths correctly note goes hand-in-hand with § 41-5-102, Rageths observe that District has never filed with the county clerk of Big Horn County or given them "an itemized and sworn statement" of the Rageths' proportionate share of the work that District performed, which statement must set forth "the date of the performance and the nature of the labor so performed." § 41-5-103. Rageths correctly note that these statutory provisions vest any competent court having jurisdiction of the matter with authority to determine the expense or value of such work or labor performed. §§ 41-5-102, 103. Rageths assert that these statutory provisions, which District embraces, "contemplate the same type of analysis that Rageths are seeking in this case." They contend that the "expenses" contemplated by these statutory provisions are those that are "necessary for the proper maintenance and operation" of the Bitter Creek Diversion and the Sidon Canal, and are not, as District asserts,
[¶ 16] In light of the above and foregoing discussion, it is clear that the parties disagree on how to determine the expenses necessary for the proper maintenance and operation of the Bitter Creek Diversion and the Sidon Canal, for it is to those expenses that the parties will apply the ratio of 4.26% on which they agree. We now consider the parties' respective approaches to how that determination is to be made. For purposes of this consideration, we shall use District's 2008 Fiscal Year Budget and Assessment that District used to determine Rageths' 2009 conveyance fee. District's total assessment of the adjudicated acreage under the Sidon Canal (13,129.98 acres) was $262,599.60. Dividing the total assessment of $262,599.60 by the total adjudicated acreage under the Sidon Canal, the result is $20 per acre. Multiplying Rageths' 559.75 acres by the sum of $20, the result is approximately $11,200.00. That same result is achieved if one simply applies the ratio of 4.26% to the total assessment of $262,599.60.
[¶ 17] Rageths oppose that approach for the simple reason that District's total assessment of $262,599.60 covers all expenses of operating and maintaining the entire irrigation district system. Rageths point out that there are several categories of expenses in
[¶ 18] In their opposition to District's summary judgment motion, Rageths submitted an affidavit executed by Francis A. Carr, a consultant on water rights issues since his retirement in 1996 after a 28-year career with the Wyoming State Engineer's Office. Mr. Carr conducted a review of District's budget reports for the years 1965 to the present. District has not maintained separate records of actual expenses directly related to the operation, maintenance and repair of the Bitter Creek Diversion and the Sidon Canal. Without those separate records of actual expenses related to those particular irrigation works, it was not possible for Mr. Carr to determine the precise annual proportionate assessment from District's budget reports. Mr. Carr was able, however, to use District's budget reports to calculate a standard percentage to be paid by Rageths to represent their proportionate share of the expenses of operation, maintenance, and repair of those particular irrigation works. As explained by Rageths in their briefing to this Court:
Rageths assert that Mr. Carr's analysis of District's historical budget reports and assessments reveals the existence of genuine issues of material fact regarding both the method of calculating Rageths' annual delivery fee in past years and in the years going forward and the amount of refund due Rageths for their overpayment of their delivery fees in the previous several years. They insist that only after a full evidentiary hearing can these issues be determined.
[¶ 19] Responding to the Rageths' argument, District asserts that Rageths are claiming that they may select the expenses to which the 4.26% ratio is applied and that District is required to maintain separate records of the actual expenses requisite to the proper maintenance of the Bitter Creek Diversion and the Sidon Canal. District claims there is no basis in law for Rageths' argument. We disagree. As we understand Rageths' argument, they do not claim they alone may select the appropriate expenses; rather, they simply claim, and we agree, that there are genuine issues of material fact concerning what those appropriate expenses should be to which the 4.26% ratio is to be applied. Certainly, at trial each party shall have the full opportunity to offer evidence and be heard on the matter of expenses and the trier of fact will make the selection of the appropriate expenses to which the ratio is applied. As for District's statement that Rageths' argument has no legal basis, obviously that legal basis is found in §§ 41-5-102 and 103 and § 41-6-303, the very provisions relied on by both parties. We agree with Rageths that these statutory provisions contemplate the same type of analysis they are advocating to determine the expenses requisite to the proper operation, maintenance, and repair of the Bitter Creek Diversion and the Sidon Canal, as separate from all business expenses District incurs in operating the entire irrigation district system. Pursuant to these statutory provisions, it is the burden of the District, as owner of the Bitter Creek Diversion and the Sidon Canal that is seeking payment from Rageths, as a user of those irrigation works, to establish and justify those requisite itemized expenses.
[¶ 20] District also expresses concern that Rageths are claiming that their proportionate share of the requisite expenses should be based on the 6.5- to 7-mile stretch of the Sidon Canal between the Bitter Creek Diversion and Rageths' pumps. We do find several statements in Rageths' opening and reply briefs that suggest such a limitation. However, we also find in their reply brief this clear statement:
We conclude that, in light of this clear statement, District's concern is put to rest.
Restatement of Prop.: Servitudes § 4.13(4) (2011). Comment e. to this section states in relevant part:
Id.
[¶ 22] Our independent research of the numerous court decisions across the country using § 4.13 for guidance led us to Freeman v. Sorchych, 226 Ariz. 242, 245 P.3d 927 (App.2011), which raised the issue whether dominant estate holders using an appurtenant roadway easement must share in the costs necessary to maintain and repair that common easement in the absence of a cost-sharing agreement or a provision imposing such an obligation within the document conveying the easement. Id. at 929. Following an extensive review of the Restatement provision and numerous common law decisions from other states, the Arizona court concluded that the doctrine of equitable contribution applied in such a situation. Id. at 934-35. That court then stated:
Freeman, 245 P.3d at 935-36 (footnotes omitted).
[¶ 23] Having carefully considered the parties' briefs, the record, the pertinent statutory provisions, and the authority revealed by our independent research, we find there exist genuine issues of material fact that must be determined only after a full evidentiary hearing. Rageths' proportionate share of the requisite expenses must be based on an equitable apportionment determined after consideration of the various relevant factors. Consequently, we reverse the district court's orders in No. S-10-0141 and No. S-10-0184 and remand for further proceedings consistent with this opinion.
