Joseph and Ann Reed Wayment

In September 2020, Amanda and I took our family out to Golden Spike National Historic Park at Promontory Summit, Utah. I have written about that visit previously. What drew us there, in part, was the knowledge that Amanda’s 3rd great-grandfather Joseph Wayment had been present on 10 May 1869 when the last spike was driven completing the transcontinental railroad — and that Andrew J. Russell’s famous photograph had captured him standing in the crowd. I promised in that post to tell more of Joseph and Ann Reed Wayment’s story another time. This is that time.

Hiram, Amanda, Aliza, and Paul Ross, Bryan Hemsley, Lillian and James Ross, and Jill Hemsley at Golden Spike National Historic Park, September 2020
Hiram, Amanda, Aliza, and Paul Ross, Bryan Hemsley, Lillian and James Ross, and Jill Hemsley at Golden Spike National Historic Park, 7 September 2020.
East and West Shaking Hands at the Laying of the Last Rail, Promontory Summit, Utah, 10 May 1869. Photograph by Andrew J. Russell.
East and West Shaking Hands at the Laying of the Last Rail, Promontory Summit, Utah, 10 May 1869. Photograph by Andrew J. Russell. Joseph Wayment stands in the crowd on the left side of the image. Find the man standing below the Union Pacific’s No. 119 locomotive light with his jacket open and white shirt, then find the man whose head is in front of that man’s right thigh, behind the fellow with the partially raised hat. That is Joseph Wayment, age 25.

Andrew J. Russell, the official photographer of the Union Pacific Railroad who took this photograph, wrote of that moment: “The continental iron band now permanently unites the distant portions of the Republic, and opens up to Commerce, Navigation, and Enterprise the vast unpeopled plains and lofty mountain ranges that now divide the East from the West. Standing amid ‘The Antres vast and Desert wild,’ surrounded with the representative men of the nation, an epoch in the march of civilization was recorded, and a new era in human progress was ushered in.”

Joseph Wayment was one of the anonymous figures in that crowd — a twenty-five-year-old English convert who had crossed the Atlantic seasick on the Amazon, walked the plains behind an ox team, survived Montana winters so cold the dishwater froze before it hit the snow, and was now building a life in a patch of Utah desert he would spend the next six decades transforming into a home, a farm, and a community. He had no idea that 151 years later his great-great-great-granddaughter Amanda would stand at that same spot.

Origins in Whaddon

Joseph Wayment, circa 1874.
Ann Reed, circa 1874.

Joseph Wayment was born 7 February 1844 in Whaddon, Cambridgeshire, England, the second son of William and Martha Brown Wayment. His older brother Aaron had lived only one day, so as far as the family was concerned, Joseph was the eldest. I have written previously about his parents in my post on William and Martha Wayment.

Ann Reed was born 1 January 1852 in the same small village — the fifth child and second daughter of James and Sarah East Reed. Whaddon was a compact community, a parish of perhaps 300 souls in the district of Royston, County of Cambridge, gathered around the ancient stone church of St. Mary the Virgin. The Wayments and the Reeds were neighbors in every sense of the word. Their children attended the same meetings, worked the same fields, and would eventually kneel in the same river.

Ann’s early life was marked by tragedy. When she was two years old, she slipped into a deep ditch near their home. No one else was nearby. Her mother, Sarah East Reed, then heavy with child, jumped in after her. Ann was saved, but the ordeal brought on labor. The baby girl was born 13 July 1854 and died the same day. Three days later, Sarah also died from complications, and mother and infant were buried together in the same casket. Ann’s father James Reed did his best to keep the family together, but he too died on 2 February 1858, leaving five orphans — the oldest fourteen, Ann just five years old.

Their mother’s sister, Hannah East, came to Whaddon to keep house for the children. Hannah was herself from Whaddon — born there on 24 August 1828, the sister of Sarah East Reed and of George East Sr., who would later become a familiar figure in Warren, Utah. She stayed with the Reed orphans for several years before emigrating to America, where she eventually settled in Lehi, Utah, married Thomas Karren in 1865, and lived until 2 May 1907. It is a quiet thread of continuity that Hannah — who held Ann’s orphaned family together in Whaddon — ended her days in the same territory where Ann built her life, just a day’s journey away in Lehi.

After Hannah left England, the children were kept by the Parish until they could earn their own living. Ann went out to service at age eleven. She endured difficult conditions in several positions before finally working for a family named Grigg, where she stayed nearly five years and carefully saved her wages toward passage to America.

The Gospel Comes to Whaddon

I wrote in the William and Martha Wayment post about how the Wayment home had become a gathering place for LDS missionaries since William’s baptism in March 1850 — how despite community hostility, meetings were held in different houses and baptisms conducted at night to avoid mobs. The gospel took hold in Whaddon. On the night of 7 May 1860, Joseph Wayment, age sixteen, was baptized in the Kingsbridge River along with his brother Samuel and sister Emily. Ann Reed, age eight, was baptized and confirmed the same night.

They shared the same waters. They would share a life.

Joseph worked in the peat bogs with his father from his early teens, fossil digging to earn enough for his passage to America. He had one more memorable appearance in Whaddon before he left: shortly before his departure, he sang a solo at a church meeting that deeply impressed those present. His voice was described as a clear and beautiful bass. Ann Reed, then twelve years old, was in that congregation. Decades later she would tell her grandchildren with deep feeling how thrilled she had been sitting in that meeting listening to Joseph sing.

The Voyage of the Amazon, 1863

On 1 June 1863, Joseph left Whaddon for Liverpool. Three days later, on 4 June, he booked passage on the sailing vessel Amazon — listed on the manifest as “Joseph Waymound,” age 19 — and sailed from Liverpool with 881 fellow Saints bound for Zion. As I wrote in my Stoker family post, the Amazon was a famous voyage. It was this crossing that Charles Dickens observed and wrote about, describing the Mormon emigrants not as misfits and scoundrels but as the “pick and flower” of England. Future U.S. Supreme Court Justice George Sutherland was also aboard. George Q. Cannon dedicated the ship. My own Stoker ancestors were on this same vessel — an extraordinary coincidence that ties our two family lines together before they ever met in Utah.

Joseph was seasick nearly the entire six-week crossing. The Amazon landed in New York around the middle of July 1863. He traveled by train to a point on the Missouri River, then by boat up to Florence, Nebraska. From there he walked and drove an ox team across the plains in Captain Dan McCarty’s company — a new experience for him, as he later told his grandsons, having learned to handle horses in England but never oxen. He arrived in Salt Lake City on 3 October 1863, four months and two days after leaving his father’s home.

The very next day the October General Conference of the Church began, held in the Bowery. Joseph stood near the speakers’ platform. Brigham Young was one of the speakers, and Joseph later said it was one of the most inspiring sermons he ever heard — that Brigham Young seemed to be surrounded by a bright light. Part of that sermon Joseph remembered all his life.

The Freighting Years, 1864–1866

After a winter in Lehi, Joseph went to work in the spring of 1864 for a freighting company — probably the Toponce Freighting Company — hauling goods to Montana. He stayed with the outfit until the fall of 1866. Those were hard and consequential years.

The winter of 1864 was brutal. The freighters were snowbound on a Montana river for several weeks. Joseph served as camp cook. He later told his family that when he threw out the dishwater, it froze to ice before it hit the snow. Some of the cattle froze to death. One day the lot fell to Joseph to fetch wood. His hands were tender from cooking and dishwashing, but he went out and cut an armful. As he was picking up the last piece of wood, he felt his whole body beginning to freeze. He stumbled back toward the cabin, but before he reached it his whole body had gone numb. The men rubbed him with coal oil and did everything they could to revive him. One of them said, “Joe Wayment gets no more wood this winter — I’ll get it for him.”

During the freighting years two confrontations became family legend. In the first, a stranger from another company approached the camp and asked if there were any Mormons present. He was directed to Joseph. The man told him he had helped mob the Saints in Missouri and Illinois, then pulled open his shirt to his chest and said, “Now shoot me.” He had lived such a miserable life since helping the mob, he said, that he wanted a Mormon to shoot him. Joseph replied: “No Mormon will ever stain his hands with your blood.”

In the second, the freighters encountered soldiers from Johnston’s Army making their way north into Washington. Learning that some of the freighters were from Utah, they asked to hear the song that had been made up about Johnston’s Army coming to Utah. Joseph was the best singer in camp. He refused at first, knowing it would anger them. When they promised not to get angry, he relented and sang. One soldier became so furious he drew his pistol and threatened to kill the singer. The captain of the soldiers, quick as a flash, drew his own pistol on the angry man and said he would kill him if he harmed the singer. The other soldiers took the man away.

A third incident, at a freighters’ stop near Oxford, Idaho, demonstrated that Joseph was a man of both faith and action. He and his longtime friend and fellow teamster William Butler had pulled in for the night after a long drive. Other freighters already there greeted them with jeers — “There’s those Mormons” — and tried to force them to move on. Joseph and Butler had weary teams and held their ground. When words grew heated, Joseph walked briskly to his wagon, took the green willow switch he used to urge his team, walked thirty paces to some soft ground, and with one swing left it standing upright. Then he walked back, drew his pistol, turned, and split the willow with one shot. The heckling stopped immediately.

In the fall of 1866 Joseph had a strong feeling come over him that he should return to Utah. The company he was working with was a rough and irreligious crowd. He found a secluded spot in the timber, knelt, and asked the Lord for guidance. The next morning his mind was made up. He saddled his horse, gathered his belongings — three buffalo robes and his working clothes — and started for Utah.

Settling Salt Creek

He came first to Layton or Kaysville, then went to Call’s Fort near present Honeyville where he worked for a man named Barnard and helped build the first schoolhouse there. He bought a piece of land at Call’s Fort but eventually sold it. In 1872 he moved to what was then called Salt Creek, southwest of Plain City, and bought the land he would own until his death — purchasing it from H. H. Wadman, making him the second family to settle on Salt Creek. He kept “Bachelor’s Hall” there for about two years. His brother John B. Wayment, who arrived from England in July 1873, lived with him for part of that time.

The home of Bishop William Thomas Wayment and his wife Maud at 662 N. 5900 W. in Warren. Joseph Wayment appears at far right with a horse.

About 1872, Joseph began writing letters to a young woman of his boyhood acquaintance back in Whaddon — Ann Reed. She had grown up, gone out to service, endured difficult years, and was now working for the Grigg family, carefully saving her wages. She accepted his invitation to come to Utah and be his wife.

Ann Comes to America, 1874

Ann left her place of work on 2 June 1874 and sailed from Liverpool on 24 June 1874 aboard the steamship Idaho. The Idaho carried 903 passengers on that voyage, arriving in New York on 6 July 1874. Ann traveled overland by rail and arrived in Ogden about the middle of July.

Joseph met her in Ogden — likely taking her to his brother Samuel’s home. On the way they crossed a stream of clear running water. Joseph stopped the horses to let them drink, cupped his hat, dipped it in, and offered Ann the first drink. She couldn’t bring herself to drink water out of a hat from a river like that. Joseph enjoyed the cool drink regardless.

On 7 August 1874, Joseph Wayment and Ann Reed were married by Louis Warren Shurtliff at Joseph’s home in Salt Creek — ending, as Alma Hansen later wrote, the era of “Bachelor’s Hall.” On 29 June 1876, Joseph and Ann traveled to the Endowment House in Salt Lake City, where they were endowed and sealed to each other for time and all eternity. Joseph had been ordained an Elder by Alonzo Knight ten days earlier, on 19 June 1876, in preparation for that ordinance.

The First Years in Salt Creek

The Joseph and Ann Reed Wayment home in Warren, photographed June 1928. Joseph and Ann are likely the two figures visible on the front porch.

Their first child, Sarah, was born 29 October 1875 — one of the first white children born in the Salt Creek area. In the spring of 1876 the Weber River overflowed its banks and covered much of the country where Warren now stands. The first time it came up, it stayed two weeks. The crops survived. But the river flooded again, higher than before, and stayed six weeks. The crops were completely destroyed. Joseph’s house was just high enough to keep the water from running under it — but it came right to the doorstep. He kept a rowboat in which he and Ann traveled to the sandhill in Plain City to do business. His horses broke loose just before the flood and were later found on meadows west of Brigham City. The other cattle and horses in the area lived on the high knolls until the water subsided.

Joseph planted the first fruit and shade trees in the Warren area. He watered them by hand from a well he dug himself, using a long pole with a hook and a bucket because he didn’t have a rope. Later he had a windmill built over the well and irrigated some of his crops with it. About 1880 the residents of Salt Creek organized together and built a ditch up to Four-Mile in the southern part of Plain City to run water to their crops. Part of that original ditch can still be seen near the north side of the bench in Warren.

In March 1881 Joseph was appointed secretary and assistant superintendent of the Salt Creek Sunday School, offices he held for many years. In 1883 he was chairman of the board of trustees for the first schoolhouse built in Warren — a one-room brick building on the bench. His sister Martha Wayment, now Mrs. David East, was the first teacher.

About 1877 Joseph was appointed the first road supervisor in the Warren district, a position he held for ten years. The road supervisor received no pay for his services other than to apply his labor toward his poll taxes, as did all the other men. About the first work done was to fill up some of the creek crossings. He also hauled salt from the creek banks west of Plain City up to the Hot Springs — a full day’s work per load for which he received fifty cents. The salt was used in the smelting of silver ore in Montana.

Six more children followed Sarah: Martha Ann (2 June 1877), Leonard Joseph (12 September 1878), Mary Jane (8 May 1880), Walter Hyrum (14 November 1881), Hannah Alberta (23 August 1883), and Amelia Brown (29 July 1890).

Back row, left to right: Sarah Wayment, Martha Ann Wayment, Leonard Joseph Wayment, Mary Jane Wayment. Middle row: Hannah Alberta Wayment, Joseph Wayment, Ann Reed Wayment holding Amelia Brown Wayment, Martha Brown Wayment (Joseph’s mother). Seated in front: Walter Hyrum Wayment. Photograph circa 1890–1891.

The family portrait above, taken around 1890–1891 when Amelia was an infant, captures all seven children in a single frame. Four generations are present — including Joseph’s mother Martha Brown Wayment at far right, who had herself made the journey from Whaddon in 1878. I wrote about her in the William and Martha Wayment post.

The Flood of 1884 and Ann’s Heroism

In the spring of 1884 the Weber River flooded again — not as severe as 1876, but severe enough to kill all the crops, many fruit trees, and berry bushes. Joseph moved his family into his brother John’s house on the brow of the hill north of the Arthur Marriott home — a one-room house, not large enough for all the family to sleep in. Some of the children slept in a wagon under the shed.

A day or two after they moved, a heavy rain set in. The children’s bedding became soaked. In trying to provide for his family, Joseph was exposed to the rain, cold, and mosquitoes, and he took down with malaria fever. The house was too small for any comfort, and some of the men of the locality moved the family back into their own house — even though it was surrounded by water.

For six weeks Joseph lay near death. Many did not expect him to recover. During this time Ann would walk — and sometimes wade, in water up to her knees — a quarter to half a mile west on the bench to where their cow was pastured. She milked the cow and carried the milk back to feed her husband. For a while he was so weak he could not feed himself, and Ann would have to feed him by hand. He sent for elders from Plain City to administer to him. While they were visiting, he asked to be propped up in bed and talked with them at length. From that time he continued to improve, though he was not entirely well for several years. That fall he was well enough to work on the threshing machine.

Of all the incidents in the long life of Joseph and Ann Wayment, this one — Ann wading flood water to milk the cow and hand-feed her dying husband — speaks most directly to the character of their partnership. The memorial card at their graves in West Warren says it plainly: “Ann Reed Wayment gave loyal and loving support to her husband. No problem arose that they did not find a place of adjustment and agreement.”

Firsts in Warren

The 1902 Portrait, Genealogical and Biographical Record of the State of Utah described Joseph as “one of nature’s noblemen” and enumerated his contributions to the community. He planted the first fruit and shade trees. He was the first road supervisor, serving ten years. When the first schoolhouse was built he served as school board chairman, assessor, and collector. He was one of the first stockholders and directors of the Slaterville Creamery. He raised one hundred tons of sugar beets annually for the Ogden sugar factory.

By 1888 Joseph had shifted his main occupation from general farming to dairying. He kept as many as fourteen milk cows at once. His children did much of the work — milking the cows, putting the milk in cans under cool water until the cream gathered to the top, then skimming and churning it to butter. They sold as many as 2,000 pounds of their own butter in a single year. Later the milk went to the Slaterville creamery, of which Joseph was a founding director.

In November 1910 Joseph was elected Justice of the Peace of the Warren Precinct — a fitting civic capstone for the man who had been among the first to settle Salt Creek and had spent decades building its institutions.

In 1896 Salt Creek was officially named Warren, after Lewis Warren Shurtliff, the stake president who organized the new ward — the same Louis Warren Shurtliff who had married Joseph and Ann in 1874.

Ann in Warren

Ann Reed Wayment.
Ann Reed Wayment at her home in Warren.

Ann Reed Wayment was a woman of quiet and enduring strength. Her daughter Mary Jane wrote of her: “She was an energetic worker in Relief Society, holding and filling many offices in it. She was very useful among the sick, exercising great faith as her best healing art. She was a kind, loving, very thoughtful mother to her family. She lived a useful life, impressing her children and those who mingled with her what a wonderful mother and woman she really was.”

The Warren Ward Relief Society was organized on 30 November 1902. Ann was sustained as its Treasurer — her sister-in-law Castina Wayment, wife of Joseph’s brother Samuel, served as First Counselor. Ann was not present at the organization meeting but was set apart as Treasurer on 5 February 1903. At the first Relief Society meeting held at the home of President Jane Stewart on 18 December 1902, Ann bore her testimony and gave the benediction. She served as Secretary and Treasurer of the Warren Relief Society from 1902 to 1916.

Alma Hansen, who knew both his grandparents personally and compiled their biography from firsthand family accounts, described Ann in a single memorable sentence: “She was short of stature but stood ten feet tall in her loving service.”

A February Week in Logan, 1893

Logan, Utah, with the Logan Temple visible in the background, circa 1890s. Digital Image © 2001 Utah State Historical Society. All rights reserved. Used for non-commercial, educational purposes.

In February 1893, Joseph and Ann made an extended trip to the Logan Temple — a journey that had been years in the making. In careful sequence over eight days, they completed ordinance work for ancestors in their lineage and sealed their families together for eternity.

On 16 February 1893, Joseph was sealed to his parents, William and Martha Brown Wayment, in the Logan Utah Temple.

On 21 February, proxy baptism and confirmation were performed for James Reed and Sarah East Reed — Ann’s parents — in the Logan Temple.

On 22 February, the proxy endowment was performed for Sarah East Reed in the Logan Temple. Almost certainly the same was done for James Reed that day, though that record was later lost and the ordinance was repeated at the Manti Temple in 1938.

On 23 February 1893, Ann was sealed to her parents, James and Sarah East Reed, in the Logan Temple.

For a woman who had grown up an orphan at age five — whose mother died saving her life in 1854 and whose father died in 1858 — this February week in the Logan Temple completed a covenant that no earthly circumstance had been able to make. The parents she had barely known were now bound to her forever.

A Mission at Fifty-Six

Joseph Wayment’s handwritten mission acceptance letter to Brother George Reynolds, Warren, 15 January 1900. “It would be agreeable my feelings, and consistent with my circumstances, to take a mission to preach the gospel, if I am considered worthy. I can be ready within 30 days, or less. I remain your Brother, Joseph Wayment.”

On Christmas Day 1899, Joseph was asked to fill a mission for the Church. He was fifty-five years old, a grandfather, and still carrying the kidney effects of a severe malaria attack from fifteen years earlier. His response, written in his own hand on 15 January 1900 to Brother George Reynolds of the First Council of the Seventies, occupies four plain lines: it would be agreeable to his feelings and consistent with his circumstances; he could be ready within thirty days, or less. He remained the reader’s Brother, Joseph Wayment.

On 19 January 1900 he received his formal call from President Lorenzo Snow to labor in the Southwestern States. He was set apart on 14 February 1900 by Apostle George Teasdale in the Temple Annex in Salt Lake City — the same day his Seventy’s License was formally issued, signed by Seymour B. Young, President of the First Seven Presidents of the Seventies.

Joseph Wayment’s Seventy’s License Certificate, issued 14 February 1900, certifying his ordination as a Seventy by Jacob Gates on 7 November 1889. Signed by Seymour B. Young.

His Missionary Certificate bore the signatures of the entire First Presidency: President Lorenzo Snow, First Counselor George Q. Cannon, and Second Counselor Joseph F. Smith. That Joseph’s mission call passed through the hands of George Reynolds — historically notable as the defendant in the landmark U.S. Supreme Court case Reynolds v. United States (1879) — places it squarely in the living history of the Church.

He left the next day for Kansas, laboring first in Elk County under Elder H. E. Harrison, then for nearly four months in Greenwood County, until he was taken very sick with malaria again. In his own words: “I left my field of labor on the 4th of July for St. John and arrived home on the 7th, three days later. I was sick for three or four months.” The malaria affected his kidneys, an effect he felt until his death.

While Joseph was away on his mission and then ill at home, Ann kept the farm, the animals, and the household organized. When he returned, she nursed him back to health.

The Children

Of their seven children, three preceded them in death. Martha Ann, their firstborn daughter, married Louis A. Hansen on 23 November 1898. She died on 19 October 1908 at age 31 of acute nephritis, leaving four children and her husband. Her loss was a grief Joseph and Ann carried quietly for the rest of their lives. Leonard Joseph married Sarah Naomi Hodson in 1902, was called to the British Mission in November 1915, labored in Belfast, Ireland, took sick, and arrived home 19 July 1916. He passed away the next morning, leaving a wife and three children.

The four who outlived their parents were Sarah (married Joseph E. Hansen), Mary Jane (married Samuel Bagley Willis, later Orson J. Waldron), Walter Hyrum (married Iva Dell Wade), Hannah Alberta (married LeRoy White), and Amelia Brown (married George James Lythgoe).

The 70th Birthday, 1914

Family portrait honoring Joseph Wayment’s 70th birthday, 7 February 1914, Warren, Weber, Utah. Third row center: Ann Reed Wayment and Joseph Wayment, flanked by siblings John B. Wayment and William T. Wayment and sister Martha W. East.

On 7 February 1914 the extended Wayment family gathered at the Warren home for Joseph’s 70th birthday — a massive family portrait capturing four rows of family: children, grandchildren, siblings, their spouses and children, and young Alma W. Hansen himself, visible as a boy in the second row, who would later compile the definitive biography of his grandparents. At the center of the third row sit Joseph and Ann, flanked by his brothers John B. and William T. Wayment and his sister Martha W. East. By this gathering all the children had married, and the family had already absorbed the loss of Martha Ann six years before.

The Grasshoppers

One incident from Joseph’s later years became a touchstone story in the family, attested to by his daughter Sarah. A summer or two after his first malaria attack, he had planted wheat in the field north of the house. The crop grew abundantly, had headed out full, and was beginning to turn yellow when the children noticed one evening that a great horde of grasshoppers had descended on the grain. They went in and told their father. He was not well, still weakened from the malaria. He arose, took his cane, and walked out into the field.

The grasshoppers were large and so thick they were bending the stalks almost to the ground. What once looked like a bounteous harvest now seemed doomed. Then right there in the midst of the grain and the grasshoppers, Joseph knelt and made a most fervent appeal to his Heavenly Father for aid. Night came on. The family retired — but not without family prayer. The next morning not a grasshopper could be found on the grain. There were no traces of where they had been.

The Golden Wedding, 1924

Salt Lake Tribune, 12 August 1924. Joseph Wayment and Wife Honored on Their Golden Wedding Day.
Left to right: Walter Hyrum Wayment, Amelia Brown Wayment Lythgoe, Joseph Wayment, Ann Reed Wayment, Sarah Wayment. Photograph taken at the Warren home, circa 1924.

On Thursday, 7 August 1924, Joseph and Ann celebrated their golden wedding anniversary with elaborate festivities at their Warren home. The Salt Lake Tribune reported the occasion. By remarkable coincidence, a great-grandson was born that same day at nearly the identical hour that Joseph and Ann had married fifty years before — a son born to Mr. and Mrs. William Bennington Jr. of Ogden. The event, as the paper noted, cheered the aged couple considerably.

The celebration drew family from across Weber County. Among those present were Joseph’s siblings — his sisters Mrs. Martha East of Warren and Mrs. Emily Mullen of Ogden, and his brother Bishop William T. Wayment of Warren — along with four daughters, one son, and twenty-six grandchildren.

The photograph captures something of what fifty years in Warren had built. Joseph stands center-rear, his great white beard the same beard his doctor had prescribed after the 1884 malaria — protection for his throat and chest from the cold. Ann stands center-front, hands folded, short of stature. Sarah, their eldest — the first white child born in Warren — stands at the right. Walter Hyrum, their only surviving son, is at the far left with his wife Amelia Lythgoe beside him.

Final Years

Ann Reed and Joseph Wayment.
Left to right: Verlan Hansen, Ann Reed Wayment holding Donald Peterson, Eulail Peterson (back), Robert Hansen (front), Joseph Wayment holding Elaine Hansen, Irene Hansen. Joseph and Ann were the great-grandparents of the children in this picture.

Joseph bought his first automobile in 1912, just past his 68th birthday. About 1922 his eyesight became too poor to read. From that time until his death, someone had to read all news to him. He lived at his own home in Warren until the very end, cared for by his daughter Sarah. He delighted in bearing his testimony and seemed never to tire of talking about and explaining the principles of the gospel. His last public appearance was at a fast and testimony meeting on 11 October 1931, where he bore a strong testimony to the truthfulness of the Gospel and to the fact that Joseph Smith was a true prophet of God.

Ann did not live to see it. She died on the morning of 14 June 1931, at 8:10 a.m., at their Warren home after a three months’ illness — her cause of death recorded on her death certificate as chronic myocarditis with arteriosclerosis as a contributing factor. She had lived in Warren for 57 years without interruption. Her brother-in-law Bishop William T. Wayment was among the speakers at her funeral. A sextet of nephews and nieces sang. Mrs. Jessie Wayment sang a solo. Grandsons served as pallbearers. Granddaughters took charge of the flowers. She was buried in the Warren Cemetery on 17 June 1931.

Joseph took sick on the afternoon of Thursday, 17 December 1931. He passed away very peacefully on Sunday evening, 20 December 1931, at Dee Hospital in Ogden, of bronchopneumonia — the chronic malaria that had plagued him since 1884 listed as a contributing condition. He was 87 years old.

Obituary of Joseph Wayment, Ogden Standard Examiner, 21 December 1931.

He was buried on 23 December 1931 in the Warren Cemetery, beside Ann, who had preceded him six months and six days. They had been married 56 years, 10 months, and 7 days.

Legacy

Sarah Ann Wayment Hansen and her father Joseph Wayment in his final years. Sarah cared for Joseph at home until his death in December 1931.

When Joseph and Ann Wayment arrived in Salt Creek in the early 1870s, there was almost nothing there. When they died in 1931, Warren was a community with a church, a school, a creamery, roads, canals, orchards — many of the first of each having been planted, built, or organized by Joseph himself. They lived to see 32 grandchildren and 37 great-grandchildren. Two of their children served missions; one granddaughter and five grandsons also served missions, all returning safely.

Amanda and I visited their graves in the West Warren Cemetery on 24 May 2020. The memorial card at their headstones — the laminated display that prompted much of this research — was photographed that day. Amanda is their 3rd great-granddaughter through the line: Joseph and Ann Wayment → Martha Ann Wayment Hansen → Walter Wayment Hansen → Bryan Hemsley → Amanda Ross.

Bryan Hemsley, Amanda, Aliza, and Hiram Ross with the tombstones of Joseph Wayment and Ann Reed Wayment, West Warren Cemetery, 24 May 2020.
Bryan Hemsley, Amanda, Aliza, and Hiram Ross with the tombstones of Ann Reed (1852–1931) and Joseph Wayment (1844–1931), West Warren Cemetery, 24 May 2020.
The memorial card displayed at the graves of Joseph and Ann Reed Wayment, West Warren Cemetery.

Source Documents

The following family histories are available for download:

Life Sketch of Joseph Wayment – copied from a record belonging to Ida H. Johnson (granddaughter), transcribed by Hollis R. Johnson, 1956

Emily Wayment and William Negus – compiled by Alma W. and Martha M. Hansen, 1979

John Brown Wayment and Sarah East – compiled by Alma W. Hansen, 1980

In re Duran

Decision: In re Barbara Vanessa Duran, Case No. 14-41422-JDP (Bankr. D. Idaho, 26 Jun. 2017)
Judge: Honorable Jim D. Pappas, United States Bankruptcy Judge
Counsel for Debtor: Paul Ross, Idaho Bankruptcy Law, Paul, Idaho
Chapter 7 Trustee: Gary L. Rainsdon, Twin Falls, Idaho
Trustee’s Counsel: David W. Gadd, Worst, Fitzgerald & Stover, PLLC, Twin Falls, Idaho
Special Counsel for Trustee: Jeffrey J. Hepworth, Jeffrey J. Hepworth, P.A. & Associates, Boise, Idaho


Background

Barbara Vanessa Duran was the fifth of ten children of Enrique Duran and Alicia Rodriguez Serna. She was financially dependent on her parents until she moved out of the family home at age 19, approximately 2007.

On 24 January 2013, Duran and her mother were traveling together on Interstate 84 in Elmore County, Idaho, when their vehicle was struck by a semi tractor-trailer owned by DOT Transportation, Inc. and driven by Randolfo H. Gomez. Alicia Rodriguez Serna was killed. Barbara Duran was injured. The Duran family subsequently filed a civil action in state court against Elmore County, DOT Transportation, and Gomez, asserting claims for wrongful death and personal injuries.

On 29 December 2014, Duran filed a Chapter 7 bankruptcy petition. The Court authorized the Trustee to employ special counsel to pursue the estate’s interest in the state court litigation. The civil action was eventually settled. Although the settlement documents did not allocate the proceeds between the wrongful death claim and the personal injury claim, the parties stipulated that all of the bankruptcy estate’s portion of the settlement proceeds — $5,013.19 after attorneys’ fees and costs — was attributable to the wrongful death claim. The parties further stipulated that the full amount was reasonably necessary for the support of Duran and her dependents. There was no point in fighting over whether the Debtor could prove the need for $5,000+ in funds.

On her Schedule C, Duran claimed the settlement proceeds exempt under Idaho Code § 11-604(1)(c). The Trustee filed an objection, later superseded by an amended objection, contending that Duran did not qualify for the exemption.


The Trustee’s Objection

The Trustee’s objection turned on a single question of statutory interpretation: whether Duran qualified as a “dependent” of her mother for purposes of Idaho Code § 11-604(1)(c). That provision exempts proceeds of a settlement accruing as a result of “the wrongful death or bodily injury of another individual of whom the individual was or is a dependent.” The parties stipulated that Duran had not been a dependent of her mother — as that term is defined in Idaho Code § 11-601(2) as “an individual who derives support primarily from another individual” — since she left the family home at age 19, approximately six years before her mother’s death.

The Trustee argued through two rounds of briefing that this undisputed gap in dependency was fatal to the exemption claim. Relying on In re Hendrickson, 274 B.R. 138 (Bankr. W.D. Pa. 2002), which had construed an analogous federal exemption under 11 U.S.C. § 522(d)(11)(B), the Trustee contended that three possible interpretations existed for the phrase “was or is a dependent”: the debtor must have been a dependent before the decedent’s death, at the time of death, or after the death. The Hendrickson court rejected the first alternative as “too broad and all-encompassing,” concluding that it would lead to absurd results — including allowing a 70-year-old to exempt wrongful death proceeds from the death of a 90-year-old parent despite having been independent for fifty years. The Trustee urged the Court to adopt the same reasoning and require that Duran have been a dependent of her mother at the time of or following her mother’s death. Because Duran conceded she met neither standard, the Trustee argued the exemption should be disallowed.

The Trustee also argued, in the alternative, that even if a petition-date standard governed, the result was the same: Duran was not a dependent of her mother on the date she filed her bankruptcy petition.


The Debtor’s Response

Debtor’s counsel filed both an initial response and a later memorandum in support of the exemption, arguing that the plain language of Idaho Code § 11-604(1)(c) compelled allowance of the claim.

Counsel argued that the statute means exactly what it says: the exemption is available to an individual who “was or is a dependent” of the decedent, with no temporal limitation on when that dependency must have existed. The word “was” is unqualified — nothing in the statute restricts it to dependency at the time of death, near the time of death, or at any particular moment. There was no question that Duran had been a dependent of her mother from birth through age 19, satisfying the “was” prong of the statute on its face.

Counsel further argued that the Hendrickson court’s conclusion that the broad reading produced an “absurd” result was not persuasive under Idaho law. Idaho’s wrongful death statute, Idaho Code § 5-311, permits any heir or personal representative to bring a wrongful death action without requiring dependency on the decedent at the time of death. Construing the parallel exemption statute with the same breadth was therefore not palpably absurd — it was consistent with the legislature’s evident intent to provide broad protection for wrongful death recoveries received by family members. An 80-year-old bringing a wrongful death action for the death of a 110-year-old ancestor under Idaho Code § 5-311 would not be considered an absurd result; the exemption for a former dependent receiving wrongful death proceeds should be treated no differently.

Counsel also distinguished the Trustee’s petition-date argument on structural grounds. Idaho Code § 11-604 is not limited to bankruptcy proceedings. Reading the word “was” as a reference to the bankruptcy filing date would impose a bankruptcy-specific limitation that the legislature did not write into the statute. Moreover, because wrongful death claims are captured under the bankruptcy estate only if they arose before filing under 11 U.S.C. § 541(a), the death will always precede the petition — meaning under the Trustee’s reading, the debtor could never currently be a dependent of a deceased person, rendering the exemption a nullity in every wrongful death case.

Finally, counsel invoked the Idaho Court’s own prior decision in In re Baldwin, 12-40060-JDP (Bankr. D. Idaho 2012), in which the Court had entertained the possibility that a divorced spouse might qualify as a former dependent under § 11-604(1)(c), and had not confined “was a dependent” to the time of the bodily injury.


The Court’s Ruling

Judge Pappas overruled the Trustee’s amended objection and allowed the exemption in full.

The Court began with the governing principles of Idaho statutory construction: the plain meaning of a statute controls, exemption statutes are to be liberally construed in favor of the debtor, and courts must give effect to all words of a statute rather than render any term superfluous. Beginning with the text of Idaho Code § 11-604(1)(c), the Court noted that the phrase “was or is a dependent” is not grammatically linked to any particular point in time. The use of both past and present tense reflects the legislature’s intent to cover both former and current dependents — nothing in the text restricts “was” to dependency at or near the time of the decedent’s death.

The Court drew on its own earlier decision in In re Baldwin, which had considered whether the past-tense “was” might be linked grammatically only to the wrongful death prong of the statute — i.e., applicable only when the injured person has died. The Court had declined to read that limitation into the statute in Baldwin, and declined to do so again here. Inserting punctuation or structural limitations that the legislature did not include would be judicial rewriting, not statutory interpretation.

The parties had stipulated that Duran was a dependent of her mother from birth until age 19. That was sufficient. The statute does not require that the dependency be recent, ongoing, or proximate in time to the decedent’s death. The Court acknowledged the Trustee’s concern that this reading might produce unfair results in extreme cases — such as a decades-removed former dependent claiming a windfall exemption — but observed that this was a question of legislative policy, not statutory interpretation. No contrary legislative purpose had been shown. And because the debtor must still demonstrate that the settlement funds are reasonably necessary for support — a requirement the parties had stipulated was met here — allowing a former dependent to claim the exemption cannot be characterized as an absurd result.

A separate order was entered the same day overruling the Trustee’s amended objection and allowing Debtor’s exemption claim in full.


Why This Matters

  1. “Was or is a dependent” in Idaho Code § 11-604(1)(c) includes former dependents without temporal limitation. The Court’s holding is clear: a debtor who was ever a dependent of the decedent satisfies the dependency requirement of the exemption, regardless of how long ago that dependency existed. Idaho practitioners advising debtors with wrongful death claims should be aware that a childhood dependency relationship — even one that ended years or decades before the decedent’s death — is sufficient to invoke the exemption.

  2. Courts will not judicially insert temporal limitations the legislature did not write. Both the Trustee and the Court acknowledged that the broad reading might produce results that feel inequitable in extreme cases. The Court nevertheless refused to rewrite the statute. Where the Idaho legislature intended to impose a time-of-death dependency requirement, it knew how to do so — and it did not do so here. Practitioners should not assume that policy-based arguments about unintended windfalls will overcome unambiguous statutory text.

  3. The “reasonably necessary for support” requirement remains a meaningful check. The exemption under Idaho Code § 11-604(1)(c) is not unlimited. Even a qualifying former dependent must demonstrate that the settlement proceeds are reasonably necessary for the support of the debtor and dependents. In this case, the parties stipulated to that fact. Where facts are less favorable, the Trustee retains the ability to contest the support element even if dependency is conceded.

  4. Idaho’s wrongful death statute informs the scope of the parallel exemption. Counsel’s argument that Idaho Code § 5-311 permits any heir to bring a wrongful death action without proof of current dependency resonated with the Court’s broad reading of the exemption. Practitioners constructing arguments under Idaho Code § 11-604(1)(c) should consider the parallel scope of the underlying wrongful death statute when framing the legislative-intent analysis.

  5. A petition-date dependency standard would render the wrongful death exemption a nullity. Debtor’s counsel identified a decisive structural flaw in the Trustee’s petition-date argument: because a wrongful death claim only enters the bankruptcy estate if the death preceded the filing, the decedent will always already be dead by petition day — meaning the debtor can never currently be a dependent of the deceased person. Reading “is” out of the analysis and confining “was” to the petition date would effectively eliminate the wrongful death prong of the exemption entirely, producing an absurd result that courts must avoid.



Full Decision: Available on PACER, Case No. 14-41422-JDP, Doc. 78 (Bankr. D. Idaho 26 Jun. 2017)

Melycher Family History

John & May, Mary, Michael, William, Stephen, Michael Jr, Suzanna, Anthony, Anna, Myrtle & Joseph Melycher

My Aunt Jackie married Willie Melycher in 1987. I wrote and shared some memories of their wedding previously. Somewhere around 2003, I stopped and visited Willie. We ended up talking about family history and he whipped out this family history. I have had it in my possession since then. I eventually scanned it so I had a digital copy. Recently I had it transcribed. Now I make it available in a much easier format.

MELYCHER FAMILY HISTORY

This history was compiled by Mary A. Melycher in memory of my husband Anthony F. Melycher.  Information was given by family members, vital statistics and birth certificates.  It is hoped that each member receiving a copy please keep it undated so that it will be a valuable source of information for the future.

The information was completed on this date January 14, 1986.

The Melycher family name was entered in the American Immigrants Wall of Honor by M.A. Melycher.  It will be permanently displayed in the renowned Ellis Island, where the family arrived when they came to America.

Michael Melycher

Born in Austria in the year of 1869 (this information taken from birth certificate of Anthony F. Melycher and from a prayer card given out at the time of the funeral).  He died in Bridgeport, Conn. August 22, 1947 at the age of 78.  He married Suzanna Gajdosik, who was also born in Austria in the year 1878 (this information taken from birth certificate of Anthony F. Melycher and from prayer card given at the funeral).  They were married in Austria.  Suzanna died in Bridgeport Conn. on January 7, 1959.  They had ten children, one died in Austria.  Michael, John and Stephen were all born in Austria, and Joseph, Anna, and Mary were born in Croton Falls, New York, Anthony, William and Rudolph were born in Connecticut.

They operated a large dairy farm on Pond Brook Road, in Newtown, Conn. until their retirement, when they went to live with their daughter, Anna Dzurka, in Bridgeport, Conn.  Before the farm was sold many acres of land were given to family members who either built on it, sold it or passed it on to their heirs.  The homestead still stands on Pond Brook Road in Newtown, Conn.

Michael Melycher had the first accredited tuberculin tested dairy herd in the area.  The farm was a large one averageing around two hundred acres and was operated by family members.

Michael Melycher donated land to build a school in the area of George’s Hill Road, which when discontinued reverted back to him and sold to Thomas and Belle Nicholl.

Michael Melycher

Date of birth – April 14, 1900.  Married Helen Moyle Sept. 13, 1937.

Children born of this marriage:

Michael Melycher III – date of birth – April 9, 1939, in Kentucky

Michael Melycher III was married and had four children by the first marriage:

Patty Melycher – date of birth 10-17-62, in California

Kris Melycher – date of birth – 10-29-63 in California

Susie Melycher – date of birth – 6-1-65 in California

Cara Melycher – date of birth – 2-25-69 in California

Michael Melycher III divorced and remarried and adopted Michael C. Melycher – 1-16-77 and had a stepson Jon – date of birth 11-1

Michael Melycher died April 30, 1997

John R. Melycher

Date of birth – April 29, 1902.  In Austria, Date of death Feb. 16, 1985

Married

Stephen D. Melycher

Date of birth – Feb. 15, 1906 in Austria.  He became a Catholic priest and served in the U.S. Army overseas as a Chaplain.

Joseph R. Melycher, Sr.

Date of birth August 16, 1910 in Croton Falls, New York.  Married Myrtle Beardsley Nov. 28, 1935 in Newtown, Conn.  Three children born of this marriage, Joseph, Jr., Ronald, Maureen.  Divorced Myrtle and married Virginia Scofield.  Divorced Virginia and married Phyllis Una Burton May 6, 1961.

Joseph R. Melycher, Jr.

Date of birth – April 15, 1936

Married Sandra Johnson and had two children, Mark and Michael

Joseph R. Melycher, Jr. divorced Sandra and married Mary McCann (divorced)

Mark Melycher – date of birth – April 16, 1957, Danbury, Conn.

Michael Melycher – date of birth – March 10, 1960.

Mark Melycher

Date of birth – April 16, 1957, Danbury, Conn.  Married Pollyanna Parks April 15, 1979.  Three children born of this marriage:  Chrystal Melycher date of birth – August 17, 1979, and twin daughters, Bonnie and Jennifer Melycher – date of birth – February 4, 1981.  All born in Danbury, Conn.

Anna Melycher

Date of birth – March 10, 1912 – in Croton Falls, New York.  Married Anthony Dzurka in Newtown, Conn. Oct. 22, 1938.  One child born of this marriage:  Carolyn Dzurka – date of birth – July 13, 1940, Bridgeport, Conn.

Anna Dzurka died Aug. 14, 1990 in Bridgeport, Conn.

Mary Melycher

Date of birth – February 28, 1914.  Married Alfred Appell in Newtown, Conn. Oct. 30, 1937.  One daughter born of this marriage:  Suzanne Appell – date of birth – June 10, 1940 in Danbury, Conn.

Suzanne Appell married Ronald Gaucher in Florida (divorced).  Married later.

Joseph R. Melycher, Sr.

Date of birth – August 16, 1910 – Croton Falls, New York

Married Myrtle Beardsley Nov. 28, 1935 in Newtown, Conn. (divorced)

Children born of this marriage:

Joseph R. Melycher, Jr. – date of birth – April 15, 1936

Married Sandra Johnson and had two children, Mark, and Michael.  Joseph R. Melycher, Jr. divorced Sandra and married Mary McCann (divorced)

Ronald Michael Melycher – date of birth – July 23, 1938, in Sandy Hook, Newtown, Conn.

Married Patricia Ann Trocolla Dec. 21, 1957 in St. Joseph’s Church, Danbury, Conn.  They had four children and adopted one.

Coreen Melycher, Tracie Melycher, Ronald Melycher, Stephen Melycher, and (adopted) William Melycher.

Maureen Melycher – date of birth – June 1943.

Married George Duncan in Danbury, Conn. and had three children, George Duncan, Craig Duncan, Robert Duncan.

Joseph R. Melycher, Sr. also married Virginia Scofield. (divorced)

Joseph Melycher, Sr. married Phyllis Una Burton May 6, 1961

Linda H. (George Duncan), son of Maureen, had two children – Amanda

Craig D. and Linda I. Duncan-Melycher had a son born in Danbury Hospital that died in infancy Dec. 16, 1989.  Craig D. Duncan is a son of Maureen Melycher-Duncan.

Anthony Francis Melycher

Date of birth – November 15, 1915, Bridgeport, Conn.  Died at Danbury Hospital September 8, 1984 of intercerebral hemmorrhage.

Married Mary Ann Rzchowski June 24, 1939, St. Rose of Lima Church, Newtown, Conn.  He was a trailer truck driver for thirty years, and started and operated Melycher’s Danbury Exterminating Company until he retired in 1981.

Children born of this marriage: Anthony F. Melycher, Jr., Donald William Melycher, Richard Phillip Melycher, Karen Louise Melycher, and Jean Marie Melycher.

Anthony Francis Melycher, Jr. date of birth – April 14, 1940, Danbury, Ct.  Died June 2, 1979 in an automobile accident in New Milford, Conn.

Married Christine Brenda Lucsky February 1, 1964 in Danbury, Conn.

Children born or adopted in this marriage:  (Served U.S. Army Reserves)

David Anthony Melycher – date of birth – January 17, 1970 in New Milford, Conn.

Melissa Kim Melycher – (adopted) July 27, 1972.  Date of birth March 18, 1967, Seoul, Korea.

Leah Melycher – (adopted November 17, 1976) – date of birth – May 2, 1974, Seoul, Korea.

Christine Brenda Melycher married Donald Wharton January 1, 1983 – (divorce January 28, 1985).

Christine Melycher Wharton adopted Adela delCarmen Wharton (DOB 1-81)

Donald William Melycher – date of birth – March 5, 1941, Danbury, Conn.  Served in U.S. Air Force November 1959 – November 1962.

Married Patricia Frances Graff November 23, 1962 in Clifton, New Jersey. (divorced)

Children born of this marriage: Timothy Francis Melycher, Todd Christophe Melycher, Tracey Elizabeth Melycher (adopted), and Dennis Melycher.

Timothy Francis Melycher – date of birth – October 13, 1963, Fort Worth, Texas.  Served in U.S. Submarine Service of the U.S. Navy.

Todd Christopher Melycher – date of birth – September 12, 1966 in New Jersey.  Served in U.S. Navy.

Tracey Elizabeth Melycher – date of birth – September 1, 1967. (adopted).  Enlisted in U.S. Air Force.

Dennis Melycher – May 12, 1970 in New Jersey.

Richard Phillip Melycher – date of birth – September 5, 1942, Danbury, Conn.

Married Barbara Boergermann October 12, 1974 in St. Peter’s Church, Danbury, Conn.

Children born of this marriage:

Jacqueline Theresa Melycher – date of birth – March 17, 1983, Danbury, Conn.

Richard Phillip Melycher, Jr. – date of birth, April 11, 1986, Danbury, Conn.

Karen Louise Melycher – date of birth – August 23, 1943, Danbury, Conn.

Married Vincent Weis June 5, 1965 St. Peter’s Church, Danbury, Conn.

Children born of this marriage:

Jean Louise Weis – date of birth – May 24, 1966, Danbury, Conn.

Jason Weis – date of birth – January 22, 1972, Danbury, Conn.

Jean Marie Melycher – date of birth – July 14, 1945, Danbury, Conn.  Died July 19, 1945 in Danbury Hospital of prematurity.  Buried in St. Peter’s Cemetary Section #12  No. 760.

William Francis Melycher

Date of birth – September 21, 1918.  Married Laura Henrietta Einsman June 13, 1943.

Laura Henrietta (Einsman) date of birth October 16, 1917, died August 31, 1971.

Children born of this marriage:

Arthur William Melycher, Diane Marie Melycher, William Francis Melycher, Jr.

Arthur William Melycher, date of birth – November 5, 1948.  Married Monica Ellen Patronelli – date of birth – June 6, 1953 – marriage date March 11, 1972.

Children born of this marriage:

Michael Arthur Melycher, date of birth – Sept. 20, 1972

Sean Thomas Melycher, date of birth – May 12, 1975

Laura Bridgett Melycher, date of birth – February 5, 1983

Active duty in U.S. Navy Aug. 27, 1967, to retire August 1, 1988

YNC Chief Petty Officer Arthur W. Melycher

Diane Marie Melycher, date of birth – January 11, 1954.  Married Joseph Tenk October 21, 1977.  Registered nurse

Children born of this marriage:

Daniell Kristen Tenk – date of birth – January 15, 1986 Norwalk Hospital

William Francis Melycher, Jr. date of birth March 25, 1955.  Married Paula Larsen 6-18-82 (divorced).  Married Jacqueline Jonas 7-23-88.  May Melycher date of birth 1-21-89.

Rudolph Melycher

Date of birth – March 17, 1920.  Died in Newtown, Conn. on September 20, 1920 of Cholera.

William, Joseph, Michael, Stephen, John, and Anthony Melycher

Ronald Michael Melycher, Sr.

Date of birth – July 23, 1938, Sandy Hook, Conn.

Married Patricia Ann Trocolla – Date of birth – January 22, 1939.

Married in St. Joseph’s Church, Danbury, Conn. – December 21, 1957.

Ronald Melycher, Sr. married Irene Bonadio in Newtown, CT. 9-16-1989

Children born of this marriage:

1.  Coreen Ann Melycher – date of birth – July 3, 1958, born Danbury Hospital, Danbury, Conn.  Married Raymond DeBettencourt, Jr. April 23, 1982, Danbury, Conn.

Children born of this marriage:

Sean Patrick DeBettencourt, date of birth, October 25, 1982, Martha’s Vineyard, Massachusetts.

Coreen and Raymond DeBettencourt divorced October 1995

2.  Ronald Michael Melycher, Jr. – date of birth – November 16, 1959, Danbury Hospital.  (DOB 12-22-52)

Married Debra Lynn Barry – June 20, 1981, St. Joseph’s Church, Brookfield, Conn.

Children born of this marriage:

Joshua Michael Melycher – date of birth – August 3, 1983, Bridgeport Hospital, Bridgeport, Conn.

Heather Lynn Melycher – date of birth – Nov. 11, 1987, Waterbury Hospital, Waterbury, Conn.

3.  Tracie Marie Melycher – date of birth – November 9, 1960, Danbury Hospital

Married Richard J. Coyle, October 22, 1983, St. Joseph’s Church, Brookfield, Conn.

Children born of this marriage:

Jennifer Marie Coyle – date of birth – March 18, 1984, Danbury Hospital, Danbury, Conn.

Emily Ann Coyle – date of birth – March 20, 1987, Danbury Hospital

Caitlin Mary Coyle – date of birth – June 12, 1988, Danbury Hospital

4.  Stephen James Melycher – date of birth – September 2, 1964, Danbury Hospital, Danbury, Conn.

5.  William Joseph Melycher – date of birth – November 21, 1968. (adopted June 1970).

William Joseph Melycher and Terry Quilinin had a son born May 8, 1988, William Joseph at Danbury Hospital

William J. Melycher married Terry Quilinin Feb. 6, 1989 in Brookfield

Grandchildren Marriages

Jean Louise Weis to John A. Oman Oct. 23, 1986, King Street United Church Of Christ, King Street, Danbury, Conn.  Reception at Fireside Inn, Newtown, Conn.

Melissa Kim Melycher married Dean Edward Jordan, June 4, 1988, Trinity Lutheran Church, Rt. #7, New Milford, Conn.  Reception Fern’s Rt. #7 New Milford, Ct.  (thunderstorm in progress during ceremony)

Great Grand Children

Jennifer Lynn Oman Born in AirForce Hospital, New Hampshire, July 29, 1987.  7 lbs. 1 Oz. 20 inches long.

Michael David Melycher – date of birth – Nov. 23, 1987 to Tracey Melycher in Fort Lauderdale, Florida.  Coral Springs.

Ross in Hawaii

I remember Grandpa, Milo James Ross, telling the story of his arrival in Hawaii. He often shared that, upon arriving, he heard over the loudspeakers that he was the father of a new baby boy. Somehow in my mind, I always equated Dad’s birth as the same date Grandpa arrived in Hawaii. Now knowing communications and technology available in 1943, the birth would not have been communicated to Hawaii the same day. The story suggests the birth and related information arrived before Grandpa to Hawaii. But by how much time?

First, Grandpa’s obituary (which I helped write) indicates he enlisted in the Army in October 1942. In the 1997 interview, Grandpa says he went in on “the first draft” shortly after Pearl Harbor (December 1941). He says he was sent to Fort Douglas and shipped out to Fort Lewis the same day. Grandpa also gave me the date for the photo below as 1942, which is almost a year after Pearl Harbor. He was pretty clear to tell me that when he enlisted, he was not aware that Grandma was pregnant. The first draft after Pearl Harbor, whatever that means, seems fairly immediate to me placing enlistment in 1941.

(l-r): Kenneth Barrow, Ellis or Keith Lund, Milo Ross, Jim Jardine, Unknown, Victor Wayment, Earl Collins 16 Oct 1942

The University of Utah Veterans Support Center states Grandpa landed in Hawaii on 4 July 1942. That seems to collaborate the 1997 interview with him enlisting right after Pearl Harbor. I wondered if that was a typo or if they had some records I was not aware. Was he in the army a whole year and just happened to be in Hawaii when the birth was announced?

There had to be some records out there to help clarify or pin down the dates. Military records give the insight needed. It was years since I did this search, and fortunately more records and information are now available. I try to link to them as they are referenced.

The 33rd Infantry Division arrived in Hawaii on 12 July 1943. Multiple independent military history sources — the U.S. Army Center of Military History, Army Divisions records, and others — all confirm this same date. As a reminder, Grandpa was in the 33rd Infantry Division, 130th Regiment, Company C.

The Division’s timeline shows it moved to Fort Lewis in August 1942. In March 1943, after Grandpa arrived in October 1942, the Division moved to Camp Young, California. There it conducted Desert Training Center maneuvers from April to June 1943 and then shipped to Hawaii in July 1943. This follows the pattern in Grandpa’s 1997 interview. (We have many photos of Grandma’s visit to Grandpa at Fort Lewis, I should share some of those.)

Dad was born on 4 July 1943, and the birth announcement came over the loudspeaker as the ship arrived in Hawaii. The official arrival date of 12 July 1943 means the ship would have been at sea on July 4th. “Sergeant Ross, congratulations. Your wife and son are doing well, and, one more thing, before you get off the ship you and your men have guard duty for the next four hours. Welcome to Hawaii.”

Additionally, a detailed record of another soldier, Staff Sergeant Charles Greer, in Company B of the 130th Infantry Regiment confirms the division’s movements through Fort Lewis in September 1942, Camp Clipper/Desert Training Center in early 1943, and onward — matching exactly what Grandpa described in his 1997 interview.

After settling the year, the next question for me was, where did they land in Hawaii and how long were they there? This took some more research to flesh out. I am grateful for those who continue to expand and make available these stories on the internet.

After arrival of the 123rd and 130th Regiments on Oahu in July 1943, the 123rd Regiment was sent to Kauai almost immediately. The 130th Regiment was sent to the Big Island almost immediately and later joined the 123rd on Kauai in December 1943.

Grandpa’s ship likely docked at a port on Oahu, almost certainly Honolulu Harbor. Honolulu was the primary army troop arrival port, rather than Pearl Harbor which was a naval base.

The primary Army installation area on the Big Island was Waikoloa Maneuver Area, near Waimea. Waimea is on the northern part of the island. Waikoloa Maneuver Area, located south of Waimea on Parker Ranch land, was used for live fire exercises in 1943. Camp Tarawa, also in Waimea, was also a major training ground used in late 1943, but primarily by Marines.

Grandpa’s 130th Regiment was almost certainly stationed in the Waimea/Waikoloa before transferring to Kauai in December 1943. I wasn’t able to find a specific named camp for the Army’s 130th Regiment there.

After the 130th joined the 123rd Regiment on Kauai in December 1943, both regiments completed their training and shipped out April 1944 to New Guinea. This comes from the Greer profile, linked above, which noted that on 21 April 1944, the 130th Infantry Regiment sailed from Honolulu to Finschhafen, New Guinea. It took two weeks to get from Honolulu to Finschhafen. Apparently, the 130th traveled on the S.S. Lurline.

The story of Sergeant Philip Beaman matches what Grandpa told in his 1997 interview. During the following months, the men worked to build up the outpost and conducted more amphibious operation training. They were even put to work unloading supplies at the port due to a shortage of stevedores. Grandpa’s account of unloading ships, digging drainage ditches, and building gravel walkways at Finschhafen matches Beaman. According to Beaman, morale suffered badly. According to the division’s own history, The Golden Cross, most men began to feel the division was “World War II’s forgotten unit.” The Division started calling themselves the “4F Division” — the Finschhafen Freight Forward Force.”

The Division arrived at Finschhafen on 11 May 1944 and remained there engaged in jungle and amphibious training. Later in 1944, the Division moved to Morotai Island arriving on 18 December 1944. The Division landed on the west coast without opposition. Grandpa also described in his interview arriving at Morotai, a PT boat mission, the bank robbery incident, booby trap explosion, and guarding the airstrip.

Dexter Kerstetter also served in Company C, 130th Infantry Regiment, with Grandpa. The Japanese had landed a regiment on the island, which lacked heavy weapons but had fortified the thick jungle around Hill 40.

On 10 February 1945, the 33rd Infantry Division landed at Lingayen Gulf, Luzon, Philippines. After Lingayen Gulf, Beaman describes combat in the foothills of the Caraballo mountain range, in areas nicknamed Bench Mark and Question Mark. From 19 February onward, there is the drive into the Caraballo Mountains toward Baguio.

Kerstetter’s history continues, that on 13 April 1945, during a battle he advanced ahead of his squad. The forward movement had been halted by intense fire that inflicted casualties. Kerstetter advanced beyond his squad and worked his way up the ridge where Japan’s defenses were located. Japan’s soldiers had the ridgeline defended with machine guns, mortars, and infantry in spider holes. He systematically took out enemy defenses with well-aimed rifle fire and grenades. Climbing above the defenses, he dropped down the ridgeline to destroy a cave entrance defense and its four defenders. He resumed his advance on the ridgeline defenses and next encountered a machine gun position, which he destroyed with accurate rifle fire and a grenade, killing four enemy soldiers. Kerstetter then fired on about 20 of Japan’s soldiers behind the main line of defense, scattering them. Out of ammunition, he returned to his squad for resupply. Having good knowledge concerning the locations of Japanese defenses, he led a platoon to the ridgeline and on the way took out a rifle position. The platoon was able to secure the ridgeline. Kerstetter killed 16 Japanese soldiers that day. Company C then held the hill, deterring Japanese counterattacks. During a counterattack two days later on 15 April 1945, Kerstetter was wounded in the leg by sniper fire and sent to a field hospital. He was promoted to sergeant and recommended for the Medal of Honor.

Grandpa being in the same Company was likely involved in some way with much of Kerstetter’s history. The Greer article places the 1st Battalion of the 130th Infantry fighting on Hill 1802 in the Labayug-Alibeng area from 23-25 February 1945. That is just two weeks after landing. The book about the 33rd Division places Hills X and Y in the Kennon Road fighting of late February to March 1945. It was Hill X that gave Grandpa the Silver Star and the whole Unit received the Presidential Citation. Shortly after Hill X Grandpa was wounded while tending to other soldiers who were awaiting medical attention. All this brutal mountain fighting took place on the approaches to Baguio.

Grandpa spent several weeks in recovery. University of Utah says two months, but that cannot be accurate. By mid April 1945 the 130th Infantry Regiment called in air support to help rifle companies get through a network of fortified hills. The fighter-bombers broke Japanese resistance and the 130th finally got across the river. The 33rd Infantry Division liberated what was left of Baguio on 26 April 1945. Grandpa indicates he was present for that liberation, which puts his recovery time at only a couple of weeks, not a full two months.

After Baguio, there was plenty of mopping up work required. The Division mopped up isolated pockets of Japanese troops around Baguio and captured the San Nicholas–Tebbo–Itogon route on 12 May 1945. Fighting continued and on 6 June 1945, Company I of the 130th Regiment was given a Medal of Honor for their activities near Tabio, Luzon. Grandpa indicates he was present at the Japanese surrender at Luzon in June 1945.

On 30 June 1945, all elements of the 33rd Division went to rest and rehabilitation areas. The division then landed on Honshū Island, Japan on 25 September 1945 and performed occupation duties until it was deactivated in early 1946. While the Division performed occupation duties, Grandpa had been honorably discharged 30 September 1945 and shipped home.

I am posting this article ahead of the 81st anniversary of the liberation of Baguio City.

Delivery of Jonas Remains

I have written about Irwin Jonas before. I shared photos of his life and descendants. I understand things are done differently now with the military. I cannot imagine having to deal with this situation. He participated in D-Day and lost his life on 11 July 1944, just over 70 years ago, near Saint-Lô, France. This letter is dated 30 September 1947, over 3 years after Irwin’s passing.

Mrs. Lillian C. Jonas

General Delivery

Richmond, Utah

Dear Mrs. Jonas,

The Quartermaster General, Washington D.C., has advised this office that you wish the remains of Sgt. Irwin J. Jonas delivered direct to your home in Richmond, Utah.

Plans are being made by this office to deliver the remains of Sgt. Irwin J. Jonas by Funeral Coach from this Depot to Richmond. It will be necessary, in view of the mode of delivery, that you appoint a Funeral Director to be at your home to help handle the remains.

If the above instructions meet with your desires, will you please inform this office of the name and address of the Funeral Director, and also the address of your home. If you care to change the delivery address from your home to the Funeral Director, please tell us in your reply.

Sincerely yours,

Steven F. Capasso

Major, QMO

Chief AGR Division

TITLE 3: CITY UTILITIES AND SERVICES:

3-1: WATER SERVICE:

3-1-1: PURPOSE:

The purpose of this Chapter is to:

A. Establish reasonable rules and regulations for the operation of the City.

B.  Establish reasonable fees to be charged to customers receiving water service and provide fair, orderly, and efficient procedures for collection and termination of delinquent accounts.

C.  Establish a fair and equitable means of having all persons who hook into or receive direct and immediate benefit from water mains throughout the city by requiring owners to participate in the capital cost and maintenance of water mains fronting and providing benefits to properties and the general operation of the water system, including fire protection and other health and safety benefits.

D.  Establish fair and equitable charge for the actual cost of material and labor expended by the City whenever City crews install water service or do maintenance for a customer.

E.  Protect public health and welfare by maintaining quality water to the City and controlling cross-connections or other sources or potential sources of contamination to the water supply.

F.  Provide clean, efficient, and adequate water system for residents of the City.

3-1-2: DEFINITIONS:

Certain terms used in this Chapter shall have the meanings ascribed below:

APARTMENT: Any building or portion thereof which is designed, built, rented or leased, let, or hired out to be occupied or which is occupied as the home or residence of two (2) or more families living independently of each other and doing their own cooking within the premises.

BACKFLOW: The flow other than in the intended direction of flow, of any non-potable waters, foreign liquids, gases, or any other harmful or offensive substances into the City water supply as a result of reduced or reversed pressure.

BACKFLOW PREVENTION DEVICE: A device which, when properly installed between the City water supply system and the terminus of the customer’s water line or point of ultimate use, will prevent backflow.

CITY: The City of Minidoka, Idaho.

CROSS-CONNECTION: Any physical arrangement whereby the City water system is connected with any other water supply system, sewer, drain, conduit, pool, storage reservoir, or any other source of water supply which contains or may contain contaminated water, sewage, or other waste or liquids which may be harmful to human health or which may deleteriously affect the City water supply.

CUSTOMER LINE: The pipe, valves, and fittings leading from the meter into the premises served, including the water meter attached thereto.

METER: A water meter and its enclosure, valve, and related appurtenances which measures the volume of water used by a customer of City water service. Meter includes the meter setter which allows of meter installation and replacement without disturbing the pipes.

OPEN HOSE: The use of water through a hose without a nozzle or other pressure limiting device.

SERVICE LINE: The water pipe, valves, and fittings laid from the main to the meter.

SINGLE FAMILY DWELLING: All structures, except hotels, motels, rooming houses and apartments, which contain sleeping, restroom, cooking and dining facilities.

WATER MAIN: The publicly-owned water pipe laid in a street, road, alley, or easement conveying water for City water service.

3-1-3: EXCLUSIVE OWNERSHIP, MANAGEMENT, AND CONTROL:

A.  The City shall have exclusive ownership, management, and control of the City water system and shall have exclusive ownership, management, and control of the supply and distribution of water to the inhabitants of the City. The City may make such rules and regulations as are necessary for the complete management, control, distribution, and supply of water within and without the City. Water shall not be resold or distributed outside the City without express permission of the City.

B.  All houses, buildings, or properties within City limits used for residential, commercial, industrial, governmental, recreational, or any other purpose shall connect such facilities to a public or private water source.

C.  New houses, buildings, or properties within three hundred feet (300′) shall connect to and use water from public system. No building permit shall be issued until evidence is submitted that the owner has obtained a permit to construct a private water supply or connect to a public water system. New subdivisions shall connect to public water system for each lot of a subdivision within one-half (1/2) mile of a public water line.

D.  All existing houses, buildings, or properties served by a private water supply shall abandon the private water supply and connect to the public water system once public water becomes available within three hundred feet (300′) and the private supply becomes polluted or requires a permit for any repair, upgrade, or modification. Disconnection of a private supply shall be inspected and approved by the City. Cross-connection is not permitted.

E.  Once connected to the City water system, it shall be unlawful to disconnect.

F.  Notwithstanding the foregoing, the use of the City water supply as a primary source of irrigation in new development is prohibited and use of the irrigation system or irrigation water is required.

3-1-4: GRANTING OF FRANCHISE PROHIBITED:

No person shall be granted any franchise or permit to furnish or supply any inhabitant within the City any water for domestic or culinary use or for sprinkling of lawns and gardens within any portion thereof where the water mains have been extended or may hereafter be extended so as to supply said property with water.

3-1-5: CITY NOT LIABLE FOR DAMAGES:

The City shall not be liable for damages caused by interruptions of water supply, scarcity of water, accidents to water works or mains, or during the time of alterations, additions, or repairs or for any other unavoidable causes. Nothing herein is intended to create any private duty to any customer or create a private right of action against the City on account of any failure by the City or its officers, agents, or employees to provide water service or comply with the provisions of this Chapter.

3-1-6: DUTIES OF DIVISION HEAD: 

The Mayor shall supervise and manage the Water Division, including all supply and distribution lines, wells, pumps, storage, and fire hydrant facilities. Any powers granted to or duties imposed may be delegated to other City personnel within the City.

3-1-7: RIGHT TO TURN OFF WATER:

The Mayor may turn off water within the City water system as a whole, a portion, or single user when deemed necessary to maintain or repair the water system or when ordered to do so by the Mayor or Council.

3-1-8: WASTE PROHIBITED:

It shall be unlawful for any water user to waste water or allow it to be wasted by improper use or by faulty facilities.

3-1-9: MAYOR MAY LIMIT USE OF WATER:
In times of, or in anticipation of, scarcity of water, or when the City is unable to furnish a sufficient supply of water, the Mayor may, by public proclamation, and approved by Council, limit the use of water to such extent as may be necessary for the public good. Such proclamation shall be published in two (2) consecutive issues of the official newspaper, on the city website, and after such publication, the proclamation shall have the same force and effect as a City ordinance. Such proclamation shall have a sunset date not beyond the reasonable expected length of duration of scarcity, not beyond six (6) months.

3-1-10: INSPECTION OF PREMISES:

Free access for inspection of Service or Customer Lines shall, upon such reasonable notice as the circumstances permit, be allowed to the City of all places supplied with water from the City water system. Inspections inside any buildings, structures, premises, or improvements shall be by consent of the customer only, including those under 3-1-40. Failure to consent to a legitimate and reasonable request may provide reason for City to turn off all utilities to the premises. City shall have the right to enter the facilities of any Customer to ascertain whether the purposes of this Chapter are being met and whether Customer is complying with all requirements thereof. Customers shall allow the Director ready access to all parts of the premises for the purposes of inspection, sampling, records examination and copying, and the performance of any additional duties.

A.   Where a Customer has security measures in force which require proper identification and clearance before entry into its premises, the Customer shall make necessary arrangements with its security guards so that, upon presentation of suitable identification, the Director will be permitted to enter without delay for the purposes of performing specific responsibilities.

B.   The Director shall have the right to set up on the Customer’s property, or require installation of, such devices as are necessary to conduct sampling or metering of the Customer’s operations.

C.   Any temporary or permanent obstruction to safe and easy access to the facility to be inspected or sampled shall be promptly removed by the Customer at the written or verbal request of the Director and shall not be replaced. The costs of clearing such access shall be borne by the Customer.

D.   Unreasonable delays in allowing the Director access to the Customer’s premises shall be a violation of this Chapter.

3-1-11:  PERMITS AND SERVICE CONNECTION FEES:

It shall be unlawful to install, alter, or connect any water service within the City to any water line within the City without first obtaining a permit from the City and paying the service connection fees set forth in this Chapter.

3-1-12: EXTENSION OF WATER MAINS WITHIN CITY:

The Mayor or the Council may extend water mains within the City at City’s expense whenever, in their sole discretion, such extension is necessary for the health, welfare, or safety of the residents of the City, provided however nothing herein shall require that such extension be made entirely at City expense. The City may require any customer desiring water service to install at the customer’s expense, or a portion thereof, a water main along, or a part of, the entire frontage of such customer’s property. The City may also require the customer to submit design drawings and specifications prior to the commencement of the construction of such extension.

3-1-13: EXTENSION OF WATER MAINS OUTSIDE CITY:

Water mains shall not, without the approval of the Council be extended outside the corporate limits of the City, unless adequate excess water is available for such service. City reserves the right to terminate such service without cause at any time upon at least thirty (30) days advance written notice.

3-1-14: WATER SYSTEM CONNECTION FEES:

A.  Purpose. The purpose of this Section is to establish an equitable system of charging new customers for the effect, impact, or burden created whenever they enlarge an existing water service or connect a new water service to the existing wells, storage tanks, pumps, outbuildings, or appurtenances of the City water system. The City recognizes the inherent inequity of requiring existing customers or taxpayers to bear the entire cost of acquiring or building new facilities, or of utilizing excess capacity with existing facilities, in order to meet the needs of such new development. The Council hereby finds and recognizes the relationship between the nature of the uses of property and the impact thereof upon the City water system. The Council also finds that customers who connect to a water main located adjacent to their property receive a direct benefit from such water mains, including fire protection, which benefits are directly proportional to the frontage of the water main along their property. The Council further finds that it is fair and equitable to charge a main connection fee to customers who connect to such mains in order to fund a portion of the cost incurred by the City in installing such mains.

B.  Water System Connection Fees. A water system connection fee shall be collected from any person requesting connection to the water system for any new or existing building or structure or for any existing building for which a change in occupancy or use, as defined under the International Building Code, as currently adopted by the City, is made and for which a new or larger water service line is installed. Notwithstanding the foregoing, no system connection fee shall be charged for connection of water service solely for fire protection services. Such system connection fee shall be in an amount set from time to time by Resolution of the Council.

C.  Water Main Connection Charge. Before connecting to any water main, all persons desiring such connection shall pay a water main connection fee in an amount based upon the estimated costs of connection depending on the length, property characteristics, and needs. If costs exceed the estimate, City shall recover the excess from the customer by billing. Any amounts recovered that exceed the actual cost shall be refunded to customer. All water mains within the City shall be deemed to have been constructed in whole or in part at City expense.

3-1-15: INSTALLATION CHARGES:

Service lines between the main line and the meter shall be installed by the City. Customer lines should be installed by the customer at their cost. Such installation shall comply with City standards with inspection and approval by the City before use.

3-1-16: LENGTH OF SERVICE LINE:

Where a water main is located in a public right of way, the maximum length of service line furnished and installed by the City for the standard installation fee set forth above shall be fifty feet (50′). Where the main is on private property, the maximum length of service line furnished and installed by the City for the standard installation fee shall be thirty feet (30′). If the length of the service line exceeds the maximums stated above, an additional charge shall be made, based on the actual cost to the City to furnish and install the extra pipe.

3-1-17: OWNERSHIP, MAINTENANCE, AND CONTROL OF SERVICE LINE:

All service lines and connections from the main to and including the meter shall be installed, owned, maintained, and exclusively controlled by the City.

3-1-18: ARRANGEMENT OF SERVICE LINE PIPES:

The service lines must be so arranged that the water supply to each building, place of business, or tract of land shall be controlled by a separate meter placed near the property line, unless a different arrangement is first authorized in writing by the City.

3-1-19: BRANCH SERVICE:

A.  No service connection serving more than one customer shall be made, except with written permission granted by City only for good cause. Such permission may only be granted where exists common ownership of the multiple connections and billing is made to that owner, not any tenants or other parties in possession of the property. If common ownership is terminated, then each connection must be separately connected.

B.  Where an existing water service provides service to several customers without written permission, the City may provide a 45 day notice that City will terminate water service until separate service connections are provided at the owner’s expense. If the City permits such existing services to continue, the established base rate shall be charged for each potential individual customer receiving service from the existing line and an additional pro rata portion for usage for each customer.

3-1-20: PERMIT REQUIRED:

No person shall dig into the streets or under the sidewalk for the purpose of laying, removing, or repairing any customer line without first obtaining a permit with at least 24-hour notice having been given to City Clerk. Such permit will only be granted after existing utility lines are previously clearly marked.

3-1-21: CUSTOMER LINE MAINTENANCE:

All water users shall at their own expense keep their customer lines, connections, and other apparatus in good repair and in a condition that avoids waste of water.

3-1-22: PERMIT TO DO PLUMBING:

No plumber or other person shall make any connections to a City water main or service line. No plumber or other person shall make alterations in any conduit, pipe, or other fixture connecting to the City mains or service lies, or connect pipes, without first obtaining a plumbing permit, if required. If a permit was required, all such work shall be inspected and approved before service is restored. If such work requires excavation within a public right of way, such person shall notify the City and also obtain a plumbing permit.

3-1-23: SERVICE CALL CHARGE:

The City may assess and collect a service charge, in an amount not to exceed the actual cost to the City, for service calls which are requested on a weekend, a legal holiday, or during a time other than normal working hours and which are only for the convenience and benefit of the customer, or which are necessitated because of plumbing which does not meet the requirements of the Uniform Plumbing Code.

3-1-24: TAMPERING UNLAWFUL:

It shall be unlawful to damage, adjust, or tamper with any portion of the City Water System or appurtenances, whether located upon public or private property, without having first obtained the express permission of the City. If any person damages the water system or in any way causes the City to expend costs as a result of such unlawful acts, the City may assess and collect the same from the person committing the same, or from the parent or guardian of any minor who commits such acts. City may also make a criminal report. Such amounts may be included upon the customer’s regular monthly billing statement for water service, and upon the customer’s failure or refusal to pay the same, water service may be terminated in accordance with the procedures set forth in this Chapter.

3-1-25: AUTHORITY TO PLACE METER:

The City may, in their sole discretion, place a meter on any service line and change the method of billing from a flat rate to a metered rate.

3-1-26: OWNERSHIP OF METERS:

All water meters installed or accepted by the City shall remain the property of the City and may be removed or replaced by the City at any time.

3-1-27: MAINTENANCE OF METERS:

The City shall maintain and repair all meters. Where replacement, repair, or adjustment of any meter is rendered necessary by the act, neglect, or carelessness of the owner or occupant of any premises, any expense incurred by the City thereby shall be charged against and collected from the customer, and water service may be discontinued until the meter is repaired, replaced, or adjusted.

3-1-28: METER LOCATION AND ACCESS:

Meters shall be located near the customer’s property line. No meter shall be located within a structure without written consent of the City and access by the City at all times. The customer shall keep the area adjacent to the meter free from trees, shrubbery or other obstructions and shall allow the City access to the meter during normal working hours.

3-1-29: BILLING PERIODS:

All regular billing periods shall be on a monthly basis. Premises occupied for any portion of a month shall be charged a pro rata portion of the month.

3-1-30: BILLING, COLLECTION, AND TERMINATION OF UTILITY SERVICE:

Billing, collection, and termination for utility service shall be processed pursuant to the City billing, collection, and termination policy established under Title 3 Chapter 7.

3-1-31: WATER USER SERVICE CHARGE:

A.  A monthly service charge for water service shall be charged to all customers on a monthly basis. All charges to customers, shall be calculated in a manner that ensures each customer will pay a fair share of the costs of operation, maintenance, and capital equipment replacement based upon proportional usage of the water system. The rates established shall generate sufficient revenue to defray the costs of operating and prudently managing the water system, including but not limited to: (a) capital costs; (b) operation and maintenance costs; (c) replacement costs and reserves, and (d) debt service on bonded indebtedness. Premises occupied for any portion of a month shall be charged a pro rata portion of the month.

B.  For billing purposes, water users shall be classified and billed as Residential, Commercial, and Industrial.

C.  City shall establish monthly rates for water service supplied by City in an amount set from time to time by Resolution of the Council for the following:

1.  Monthly Non-Metered Residential Water Rates (Inside City):

a.  Single-family dwellings and mobile homes (excluding separate apartment units within such dwelling) – Per dwelling or unit;

b.  Duplex/Triplex – Per dwelling or unit;

c.  Apartment unit – Per unit.

2.  Monthly Non-Metered Commercial Water Rates (Inside City):

a.  Category 1 (Commercial Apartment Building where single bill for all tenants is paid by landlord or manager) – Per unit;

b.  Category 2 (Bar, Church, Gym, Office Space, Retail, Salon, Shop, and Warehouse) – Per business;

c.  Category 3 (Big Box Retail, Car Sales, Convenience Store, Day Care, Fast Food, Medical Office) – Per business;

d.  Category 4 (Hall, Restaurant) – Per business;

e.  Category 5 (Hotel or Rest Home with twenty (20) rooms or less) – Per business;

f.  Category 6 (Hotel or Rest Home with more than twenty (20) rooms) – Per business.

3.  Monthly Non-metered School Water Rate (Inside City): Per fifty (50) students or fraction thereof.

4.  All other non-classified businesses shall be placed into a monthly non-metered commercial water category by the Director based on anticipated interior water consumption.

5.  Monthly Metered Water Rates. The water for customers receiving metered water service shall be a monthly base metered water of three thousand (3,000) gallons plus a monthly volumetric rate per each one thousand (1,000) gallons of water used; in an amount set from time to time by Resolution of the Council. Each class of Residential, Commercial, and Industrial shall have separate rates. Users outside the City shall have a separate rate as set by Resolution of the Council.

a.  New installations without sufficient metered data shall be charged as non-metered water as defined above until such time that sufficient metered data is available.

3-1-32: WATER RATES OUTSIDE CITY:

Monthly rates charged for water furnished outside the City limits, whether metered or non-metered, shall be as set by Resolution, including a base rate and usage rate.

3-1-33: METER RATES FOR MULTIPLE METERS:

Where an individual consumer is supplied with water through more than one (1) metered service, charges shall be computed separately for each individual meter.

3-1-34: SERVICE OUTSIDE CITY:

The City shall not provide any water service to any consumer whose residence or place of business is outside the corporate limits of the City unless a written service contract and consent to annexation has been executed between the consumer and the City. All services must comply with all other requirements of the City.

3-1-35: FIRE SERVICE CONNECTION:

All fire service connections between water mains and property lines shall be installed and maintained by the City, at the expense of the owner or occupant of the premises served, and shall be the property of the City. At the time of making application for service, the applicant shall file with the City detailed plans, produced by a registered design professional, showing all piping installed or to be installed for fire protection, all fire gates, automatic sprinklers, and all other outlets, gates, or appurtenances. Each fire service connection shall have a gate valve with an adequate valve box installed between the main and the property line of the premises served. No fire service connection larger than six inches (6″) shall be installed without special permission from the Council. Upon receipt of such application and submissions by a registered design professional, the Mayor shall determine the cost for the installation of such service, taking into consideration the length and size of pipe, condition of street and sidewalk, all relative to the character of service, and such cost shall be paid by the applicant before such installation is made. No customer receiving metered water service shall use a fire service connection for domestic purposes or any purpose other than for fire protection. If the Mayor finds a fire connection is being used for any purpose other than for fire protection upon the premises, the owner or occupant shall be notified and if such improper conditions are not corrected within ten (10) days, water service to the entire premises may be terminated until proper adjustments are made. Such shall constitute theft of services.

3-1-36: FIRE HYDRANTS:

All public fire hydrants shall be maintained by the City and be kept accessible at all times. Members of the Fire Protection District shall also have free access to such hydrants. No other person shall draw or attempt to draw any water from a fire hydrant unless the person has written permission of the City and comply with any requirements for such use. The Mayor may assess an equitable charge for the consumption or use of water drawn from a fire hydrant.

3-1-37: UNLAWFUL CONTAMINATION OR CROSS-CONNECTIONS:

It shall be unlawful for the owner, tenant, occupant, lessee, or other user of City water to introduce or permit the introduction of pollution or contamination of any kind into the City water supply system. It shall be unlawful for any person to install or maintain any cross-connection within the City.

3-1-38: BACKFLOW PREVENTION DEVICES:

A.  Backflow prevention devices shall be installed by the proper owner, tenant, occupant, lessee, or other user of City water where the nature and extent of the activities conducted or the materials used or stored on the premises would present a hazard to the public health or be deleterious to the quality of the City water supply should a cross-connection occur. Even though cross-connections may not exist at the time, backflow prevention devices shall be installed under circumstances including, but not limited to the following:

1.  Premises having an auxiliary water supply;

2.  Premises having internal cross-connections that are not correctable, or having intricate plumbing arrangements which make it impracticable to ascertain whether or not cross-connections exist;

3.  Premises where entry is restricted so that inspections for cross-connections cannot reasonably be made;

4.  Premises having a history of cross-connections being established or re-established;

5.  Premises on which any substance is handled under pressure so as to permit the potential entry of substance into the public water supply;

6.  Premises having pumps or devices which may affect the pressure within any line connected to the City water supply;

7.  Whenever water is drawn from a public fire hydrant.

B.  All backflow prevention devices shall be installed by the property owner at the owner’s expense, and shall be of a type commensurate with the degree of hazard which exists or which could exist. An air-gap separation or a reduced pressure principle backflow prevention device shall be installed where the public water supply may be contaminated with sewage, industrial waste of a toxic nature, or other contaminant which could cause a public health hazard. In all other cases where the contaminant may be objectionable but not hazardous to the public health, a double check valve assembly, an air-gap separation, or a reduced pressure principle backflow prevention device shall be installed. All backflow prevention devices and the installation thereof shall be approved by the City Water Department Head or duly authorized representative.

C.  All backflow prevention devices installed pursuant to this Chapter, except atmospheric vacuum breakers, shall be inspected and tested by a certified tester at the time of initial installation and annually thereafter, or more often if deemed necessary by the City. Whenever a backflow prevention device is found to be defective, it shall be repaired, overhauled, or replaced at the owner’s expense. The City Water Department Head shall retain adequate records of all inspections, tests, or repairs made pursuant to this Chapter.

D.  If a backflow prevention device is found to be necessary, the owner, tenant, occupant, or lessee of the property shall apply in writing to the Clerk for an installation permit, specifying the type and location of such device or devices. It shall be unlawful to install, relocate, or remove a backflow prevention device without a permit.

3-1-39: INSPECTION OF NEW CONNECTION:

No building, improvement, or other structure shall be connected to the City water supply unless such structure has been inspected by the City and found free of any cross-connections or other conditions for which a backflow prevention device is required by this Chapter.

3-1-40: REQUIRED INSPECTION AND TERMINATION OF WATER SUPPLY:

The City shall make an inspection of any building, improvement, or structure of any nature receiving water from the City water supply if there is cause to believe that a cross-connection exists or that a backflow prevention device should be installed pursuant to this Chapter. Whenever a cross-connection or other source of contamination to the water supply is found, or it is determined that a backflow prevention device is necessary, the City shall cease delivery of water to such premises and the water supply shall not be resumed until the cross-connection or source of contamination is eliminated or a backflow prevention device has been installed in accordance with this Chapter.

3-1-41: PENALTIES:
It shall be unlawful for any person to violate any provision of this chapter or tamper with, alter, or injure any part of the city waterworks or water supply system, any meter, or any shutoff box. It shall be unlawful to steal services. Any violation of this chapter shall be punishable as a misdemeanor.

3-2: RESERVED:

3-3: ELECTRICAL SERVICE:

3-3-1: DEFINITIONS:

A.  Residential User: A “residential user” for the purpose of this chapter is defined as follows:

1.  A consumer of electrical energy that is served with a single- phase (120/240 volt) electrical energy and which energy is used in dwellings which includes houses, apartments, duplexes, condominiums, trailer houses or mobile homes and in which said dwellings there is no conduct of business or commercial activities.

2.   Public services, educational, religious, fraternal, and other nonprofit organizations that use single-phase 120/240-volt energy.

B.   Commercial User: A “commercial user” of electrical energy for the purpose of this chapter is defined as follows:

1.   Any person, firm, corporation and/or organization that uses electrical energy within the service area of the city electrical system for the purpose of conducting any type of commercial activities such as retail sales, services rendered for money, manufacturing or other type of business.

2.  Any consumer of electrical power that requires 3-phase electrical energy.

C.  Industrial User: An “industrial user” of electrical energy for the purpose of this chapter is defined as follows:

Any person, corporation, firm or association that uses electrical energy within the service area of the city electrical system who demands and receives 500 kW demand or more in any one month.

D.  Irrigation User: An “irrigation user” of electrical energy for the purpose of this chapter is defined as follows:

Any person, corporation, firm or association that uses electrical energy to pump water for agricultural purposes, meaning to water crops or pastures and croplands.

3-3-2: RATES:

The rates to be charged for consumption of electrical power by residential, commercial, irrigation and industrial users shall be set by resolution or by ordinance of the city council from time to time.

3-3-3: RIGHTS RESERVED:

City reserves the right to require the prospective electrical energy customer to execute a service contract specifying and setting forth the obligations of the parties pursuant to the city’s electrical policy, adopted from time to time by the City council. Such contract will provide for compensation necessary to justify the City’s investment in service facilities.

3-3-4: DEPOSITS:

A deposit of all new residential customers shall be required as security for payment. The deposit will be in the amount set by resolution of the council. Deposits may be used at any time by the city to be applied against the customer’s delinquent account. Upon voluntary or involuntary termination of service, the city clerk shall apply the deposit first toward the delinquent portion of the account, if any; and, then to the currently due portion of the account including any charges up to the date of termination whether or not such charges are delinquent. If there is any damage, other than normal wear and tear, to the electrical facilities at the place served, any remaining portion of the deposit may be used to offset the actual costs of repair or replacement. Any unused portion of the deposit is refundable to the customer in person at the city office. No interest will be paid on the deposit nor will interest be credited to the customer’s account.

3-3-5: MAINTENANCE OF METERS:

Owners and/or occupants of each parcel of property served by this service shall keep meters reasonably free from trees, shrubbery or other barriers or restrictions.

3-4: RESERVED:

3-5: RESERVED:

3-6: GARBAGE SERVICE:

3-6-1: DEFINITIONS:

For the purpose of this chapter, the following words shall have the meanings ascribed to them unless the context otherwise indicates:

COLLECTOR: The person holding a license or contract with the city and authorized to collect, handle, transport and dispose of refuse and wastes.

GARBAGE: Shall include all putrescible waste, except sewage and body waste.

REFUSE: Solid wastes, including garbage and rubbish.

RESIDENTIAL: Shall mean or have reference to single-family dwellings or duplexes. “Nonresidential” shall refer to all other dwellings or commercial or industrial uses.

RUBBISH: Shall mean refuse other than garbage.

WASTE: Unwanted solid, liquid or gaseous materials.

3-6-2: RESPONSIBLE AUTHORITY:

The council shall be responsible for the enforcement of the provisions of this chapter.

3-6-3: COMPULSORY USE OF THE SYSTEM:

Every owner and occupant of premises within the city must use the refuse collection and disposal system herein provided and shall deposit or cause to be deposited in accordance with this chapter all rubbish and garbage that is of such nature that it is perishable, or may decompose or may be scattered by wind or otherwise, which is accumulated on such premises.

3-6-4: REFUSE COLLECTION:

It shall be unlawful for any person to engage in the business of collecting, transporting, hauling or conveying any refuse over the streets or alleys of the city, or to dump or dispose of the same, unless and until such person has a contract therefor as an authorized representative of the city.

3-6-5: REFUSE ACCUMULATION UNLAWFUL:

It shall be unlawful for any person to permit or to suffer to accumulate in or about any yard, lot, place or premises, or upon any street, alley or sidewalk adjacent to such lot, yard, place or premises, owned or occupied by such person, any garbage or refuse as more particularly set out in section 5-3-2 of this code.

3-6-6: CONTAINERS

It shall be the duty of every owner or occupant of any place where garbage or rubbish is created or accumulated to keep at all times or cause to be kept portable appurtenances consisting of approved containers for the deposit therein of rubbish and garbage and, except as otherwise provided, to dispose or cause to be disposed all rubbish and garbage therein.

Persons occupying residences within the city shall have garbage containers supplied by the city’s approved trash collection hauler.

Also, any limbs and bundles, trash, grass or other garbage or debris in plastic bags as long as said bundles or bags do not exceed seventy (70) pounds each or four feet (4′) in length may also be placed for pick up with the approved containers on the day of or the evening before regular pick up.

Businesses (nonresidential) places within the city shall have containers which are covered and reasonably airtight.

3-6-7: COLLECTION AND FEE:

A.   For residential and nonresidential garbage service, collection will be at least once a week. For nonresidential service, collection may be available more often than once a week upon special prior arrangements with the city and the collector.

B.   The fee for residential service shall be set by resolution of the city council from time to time.

3-6-8: METHOD OF PAYMENT; SANITARY FUND:

Fees shall be carried on the water or other utility or service bill and the same shall be paid with said bill. Said charges shall become delinquent in the same manner.

The proceeds from the collection of fees and charges herein provided shall be placed in a special fund to be known as the sanitary service revenue fund, and all expenses of the city in the operation of the sanitary collection and disposal system shall be paid out of such fund; and any surplus remaining therein at the end of each fiscal year shall be transferred by the council to the general fund of the city.

3-6-9: LICENSING AND CONTRACTING:

The council shall have sole authority to license or contract for the performance of all services pertaining to refuse collection and disposal. All rules, regulations and conduct of operations and all fees as provided for in this chapter shall be as determined and prescribed by the council.

3-7: COLLECTION OF SERVICE AND UTILITY CHARGES:

3-7-1: DUE DATES FOR CHARGES FOR SERVICES AND ACCOUNTS:

All monthly charges for services or utilities set forth in this title shall be billed to the individual account for the premises to which the service is rendered. Charges as set forth in this title for utility and other services, with the exception of irrigation water as set forth in chapter 2 of this title, incurred during the monthly billing periods shall all be due and payable as of the first working day of the next succeeding month and become delinquent as of the eleventh of the said succeeding month, or the first working day thereafter if such eleventh day be a holiday. Date of payment is the date the payment is actually received at the City offices, whether by mail or otherwise.

Irrigation water, which is normally billed only on an annual basis, shall be billed on the monthly billing card and in the same manner as a monthly charge in the month in which it accrues and becomes due and payable.

3-7-2: APPLICATION OF PAYMENT:

All payments received for services provided in this title may be applied to the following services in the following order:

1.  Electrical charges

2.  Sanitation charges

3.  Water Charges

Further, all payments in the above priority shall be applied first to the delinquent portion of any account, if any there be, and then to the currently due portion of the account before any is applied to the next account in priority.

The Clerk shall have authority to accept partial payments to apply on the balance due and shall also have authority to accept prepayments to apply against all future billings.

3-7-3: REMEDIES OF CITY:

The City shall have and does have and does reserve to itself all civil and other remedies available to it by statute, common law, and the other remedies and procedures set forth in this title or otherwise available in this Code and otherwise to enforce collection of charges imposed in this title, all of which remedies shall be considered cumulative to the degree allowed by law.

Further, in the event of nonpayment of any sewer charge for fee set forth in chapter 5 of this title, the City may also discontinue domestic water delivery as set forth in chapter 1 of this title to such customer in order to enforce payment of such charges, even if the domestic water account with such customer is not delinquent.

3-7-4: TERMINATION OF SERVICES:

In addition to all other remedies reserved to the City for collection of delinquent service fees and utility fees as set forth in this title, the City shall reserve and does hereby reserve the right to terminate service to a customer when the account for such service has become delinquent.

3-7-5: RESTORATION OF SERVICE:

After a service has been terminated, service may be restored upon payment of the delinquent account in full, repayment of the electrical or any other deposit required, if applicable, and payment of the reconnection fees in advance to the City Clerk, which fees shall be set by resolution of the City Council.

3-7-6: TAMPERING WITH METERS:

Any person who without prior authority of the City intentionally alters, tampers with or disconnects any metering device used by the City to register, measure or meter an amount of electricity, water, or other commodity or service delivered by the City to any customer or causes any such metering device to register an inaccurate reading shall be guilty of a misdemeanor.

3-7-7: UNAUTHORIZED CONNECTION:

Any person causing initial connection of any facilities to be served by the City domestic water, irrigation water, electric or sewer systems without the required prior authorization or who, without necessary prior authority, reconnects service to any of the said systems after having been disconnected for any reason whatsoever, shall be guilty of a misdemeanor.

3-7-8: FAULTY METERING DEVICES:

In the event that a metering device, the information from which is used to determine the amount to be paid by a City customer for a City service or utility, fails to operate or becomes faulty or does not otherwise correctly and accurately display and register the information to be displayed or registered, the City shall be entitled to charge the customer for services rendered during the period of faulty operation the average of the two (2) preceding months during which such metering device did accurately operate. This provision is applicable whether or not the customer owned the premises at that time. In the event that there is no prior history for the premises served with such service, then, in such event, the City Clerk shall make a determination as to what other three (3) premises within the City would have a similar consumption and average the consumption for the said period of time and apply that as the conclusive amount due and owing for the period of faulty operation of the metering device.

3-7-9: PROCEDURE FOR TERMINATION OF SERVICES:

The City will follow the procedure set forth below in terminating service of utilities to a customer in the event of nonpayment:

A.  Customer accounts for utility service are delinquent if not paid in full after the tenth day of the month.

B.  The City, in its delinquency notice, shall inform the customer of the right of pretermination hearing, application for which must be made within three (3) days. The notice may be mailed or delivered to the customer. If there has not been payment in full of the delinquent account or if no application for a hearing has been made, utility service may be terminated. If application is appropriately made within the stated time period, the City will not discontinue utility service until the hearing has been convened. The hearing will be conducted in front of the City Clerk and the customer shall have the right to be represented by counsel. In the hearing, the City Clerk may deal with billing errors, failures to credit payments or other accounting matters. The City Clerk also has authority to make arrangements, in the Clerk’s discretion, for payments by the customer over time in order to restore service prior to payment in full. In making such arrangements, the City Clerk shall give consideration to the customer’s past account delinquencies, the financial abilities and resources of the customer, the commercial reasonableness of the proposal and the likelihood of such delinquency not reoccurring. Decisions adverse to the utility customer of the City may be appealed to the City Council within ten (10) days of the adverse determination of the hearing before the City Clerk. The City Clerk will provide the appropriate written applications for the hearing before the Clerk and the appeal before the City Council and will inform the utility customer of the customer’s right of appeal to the City Council in the event of adverse decision. Decisions adverse to the consumer by the City Council will also inform the consumer of the right of appeal of the decision pursuant to the Idaho State Administrative Procedures Act to the appropriate court of jurisdiction.

C.  Persons who have a past due or delinquent utility account with the City and who desire new or renewed service must pay with the deposit all of past due account balance in full in cash. In the case of residential service locations, whether single-family, multi-family, rented or owned, a utility customer with a past due account shall be deemed to be all adults who were residing in the household of the former location where the delinquent utility service was provided. This shall be irrespective whether the account was in the name of such person or not. The customer receiving the new service shall be deemed to be all of the adults in the household to receive the service irrespective of who applies for the service. The applicant for new service shall give the names of all adult persons who reside at the new service location or are anticipated to reside at the location as a condition of service. The applicant shall expressly identify all adults who have a past due or delinquent utility account with the City on the application for new service. If an applicant has changed his or her or their names for any reason and has a past due or delinquent account with the City, such shall be divulged at the time of application. It shall be considered prima facie evidence of fraud or deception on an application for utility service to give a false name, apply in the name of another person, fail to give former names, fail to identify all adults who will reside at the location of the new service, fail to identify all persons who reside or will reside at the service location who have past due or delinquent utility accounts with the city, or to apply for service in the name of a minor. The obtaining of utility service by fraud or deception as herein defined shall be punishable as a misdemeanor.

D.  The city shall not deny or discontinue service of any utility prior to any requested hearing before the city clerk. The city may, in its discretion, continue service in the event of appeal to the city council. However, in the case of denying service initially where no service has been delivered for good cause, the city is not required to provide any service during the hearing pendency. The city shall honor hearing requests as soon as possible giving expeditious calendaring to all hearing requests.

3-7-10: LATE PAYMENT FEE:

Commencing sixteen (16) days after the first day of the month there shall be imposed a one-time late payment fee of ten percent (10%) of the then balance due on all residential and commercial utility and service account billings with a minimum fee of two dollars fifty cents ($2.50) per month. Also, interest at the rate of 1.75 percent per month on the unpaid balance shall be charged commencing thirty (30) days after the mailing of the utility billing. These provisions are in addition to any other remedies of the city including the termination of service. For purposes of this section, utility and service accounts shall include: domestic water, irrigation water, sewer, electricity, and garbage collection. Such one time late penalty shall be applied each month to any newly past due amount on any utility account for which a one time ten percent (10%) late penalty has not yet been assessed.

3-7-11: TERMINATION OF SERVICE TO DECEASED UTILITY CUSTOMERS:

Thirty (30) days after the death of a utility customer of the city, the utility account or accounts shall be closed and service, pursuant to that account or accounts, shall be terminated, except as follows:

A.  The estate, personal representative or heir may apply to the city to have the accounts transferred into the name of the estate, personal representative or heir upon completing the application for new service and payment of the required new service deposit.

B.  In any event, service may not be provided to the estate or personal representative of the deceased account holder for more than six (6) months from the utility account holder’s death, at which time the account must be transferred into the name of an appropriate successor in interest.

C.  The estate, personal representative or heir may apply to the city council upon appropriate showing of hardship.

D.  These provisions shall not apply when there is a surviving spouse to the utility account holder, as long as the said surviving spouse applies to have the account transferred into his or her name. Such transfer may be accomplished without payment of a new deposit.

Heyburn Railroad Bridge

Smith and Hollen’s ferry and the Oregon Short Line Bridge across the Snake River between Heyburn and Burley are seen in this C.R. Savage photograph. In June 1902, the federal government passed the Reclamation Act, which created the U.S. Bureau of Reclamation, and eventually brought irrigation water to 17 Western states, including Idaho. The Bureau began the Minidoka Project at Lake Wolcott in 1904 to divert water from the Snake River, creating farms and new towns on both sides of the river. By 1919, the fertile Mini-Cassia soil supported 2,208 farms and a population of 17,000, according to the Bureau’s website. The first town on the irrigation project was called Riverton. It was later renamed Heyburn for U.S. Sen. Weldon Brinton Heyburn, who died in 1912 just months after collapsing on the floor of the Senate while delivering a speech. “The first activity around Heyburn was when O.S.L. (Oregon Short Line Railroad Co. started hauling material from Minidoka (train station) to the river to build the railroad bridge across Snake River at Heyburn in the fall of 1904,” Handy wrote when asked to tell what he remembered about the area’s history. The town started as a town of 19 tents, home to the bridge workers, he said. Before the railroad bridge was completed, two men by the names of Smith and Hollen put a ferry across the Snake River to transport building materials to the new town of Burley. The O.S.L. Railroad was finished from the Minidoka train station to Heyburn, and the first engine crossed the Heyburn Bridge on June 10, 1905.

In re DeVries

Decision: In re Relna James DeVries and Kathryn Lee DeVries, Case No. 13-41591-JDP (Bankr. D. Idaho, 28 Apr. 2015)
Judge: Honorable Jim D. Pappas, United States Bankruptcy Judge
Counsel for Debtors: Paul Ross, Idaho Bankruptcy Law, Paul, Idaho
Chapter 13 Trustee: Kathleen A. McCallister, Meridian, Idaho
Trustee’s Counsel: Holly Roark, Office of Kathleen A. McCallister, Meridian, Idaho


Background

Relna and Kathryn DeVries filed a Chapter 13 petition on 27 December 2013. Their amended plan, confirmed on 19 May 2014, provided that all allowed tax claims would be paid in full. The IRS timely filed a proof of claim for taxes owed for the 2011 and 2012 tax years. The deadline for governmental units to file proofs of claim was 25 June 2014.

The Debtors filed their 2013 federal income tax returns in April 2014, which showed they owed $1,021 to the IRS for the 2013 tax year. The Idaho Tax Commission filed its own proof of claim for the $84 in state taxes owed for 2013 the day after plan confirmation. The IRS, however, did not file a claim for the 2013 federal taxes, nor did it amend its existing claim to include them. Within 30 days of the 25 June 2014 governmental bar date — as permitted by Federal Rule of Bankruptcy Procedure 3004 — the Debtors filed a proof of claim on behalf of the IRS for the $1,021 in 2013 taxes.


The Trustee’s Objection

The Trustee objected to the Debtors’ proof of claim. The Trustee represented that it was allegedly filed at the IRS’s own request, and that the IRS did not wish to have the 2013 tax debt paid through the plan as a § 1305 claim.

The Trustee’s objection rested on 11 U.S.C. § 1305(a)(1), which governs postpetition claims in Chapter 13 cases. That provision permits a proof of claim to be filed by “any entity that holds a claim against the debtor … for taxes that become payable to a governmental unit while the case is pending.” The Trustee argued that the Debtors’ 2013 federal income taxes became payable during the pendency of the bankruptcy case, making them a § 1305 postpetition claim, and that under the plain language of § 1305 only the creditor holding the claim — the IRS — was authorized to file a proof of claim for it. The Debtors’ attempt to file on the IRS’s behalf was therefore improper and the claim should be disallowed in its entirety.


The Debtors’ Response

Debtors filed a response through their counsel arguing that the 2013 tax debt was properly treated as a prepetition claim and that they were authorized to file the proof of claim under § 501(c) and Federal Rule of Bankruptcy Procedure 3004.

Debtors did not rely on § 1305 as their filing authority. Instead, they argued that the 2013 tax obligation was a prepetition claim — or should be treated as one — and that the ordinary debtor claim-filing mechanism of § 501(c) and Federal Rule of Bankruptcy Procedure 3004 therefore applied. On the question of when the claim arose, Debtors urged the Court to apply the “fair contemplation” or “prepetition relationship” test articulated in In re Dixon, 295 B.R. 226 (Bankr. E.D. Mich. 2003). Under that approach, a claim arises prepetition if there was a prepetition relationship between the debtor and the creditor such that a possible claim was within the creditor’s fair contemplation at the time of filing. The IRS and the Debtors had precisely such a relationship: the Debtors were taxpayers, the IRS was their taxing authority, and 361 of the 365 days of the 2013 tax year had elapsed before the petition was filed. The IRS’s claim for 2013 taxes was fully within its fair contemplation at the time of filing, Debtors argued, making it a prepetition claim subject to the ordinary rules permitting debtors to file on a creditor’s behalf.

Debtors also invoked 11 U.S.C. § 502(i), which provides that a postpetition claim for taxes entitled to priority under § 507(a)(8) shall be treated as if it had arisen before the petition date. On that theory, even if the 2013 taxes technically arose postpetition, § 502(i) mandated that they be treated as prepetition claims, restoring the Debtors’ authority to file under § 501(c) and Federal Rule of Bankruptcy Procedure 3004.


The Trustee’s Reply

The Trustee replied that Ninth Circuit authority resolved the question directly and foreclosed the Michigan court’s “fair contemplation” test. Relying on Joye v. Franchise Tax Bd. (In re Joye), 578 F.3d 1070 (9th Cir. 2009), the Trustee argued that taxes owed for a given tax year do not “become payable” — and therefore do not arise as a § 1305 postpetition claim — until the close of that tax year. Because the DeVries filed their petition before the close of 2013, the 2013 taxes became payable only after the petition date and were a postpetition claim that only the IRS could properly file. The Trustee further noted that allowing the improperly filed claim would prejudice general unsecured creditors, whose pro-rata distributions would be reduced by the addition of a priority tax claim.


The Court’s Ruling

Judge Pappas sustained the Trustee’s objection and disallowed the Debtors’ proof of claim in its entirety.

The Court addressed § 502(i) first and found it dispositive against the Debtors. Section 502(i) applies only to postpetition tax claims entitled to priority under § 507(a)(8)(A)(i), which affords priority to income taxes for which the applicable return was due within three years before the petition date. The DeVries’ 2013 federal income tax return was not due until 15 April 2014 — after their 27 December 2013 petition date. Because the return due date fell outside the three-year lookback period, the 2013 taxes were not entitled to priority under § 507(a)(8)(A)(i), and § 502(i) therefore had no application. The Court drew support from the Ninth Circuit BAP’s analysis in In re Jones, 420 B.R. 506 (9th Cir. BAP 2009), aff’d on other grounds, 657 F.3d 921 (9th Cir. 2011), which explained that a postpetition income tax obligation whose return is due postpetition cannot invoke priority status under § 507(a)(8)(A)(i) and thus falls outside § 502(i)’s reach entirely.

The Court then turned to § 1305(a)(1) and rejected the Debtors’ “fair contemplation” argument. Binding Ninth Circuit precedent, not the Michigan court’s test, controlled the analysis. Under In re Joye, taxes become “payable” for purposes of § 1305(a)(1) when they are “capable of being paid.” The Ninth Circuit further established in In re Pacific-Atlantic Trading Co., 64 F.3d 1292 (9th Cir. 1995), that a tax on income is “incurred” on the last day of the income period. Because federal income taxes are assessed by the calendar year, the DeVries’ 2013 taxes were incurred at midnight on 31 December 2013 — after the petition was filed. Both the incurrence and the payability of the 2013 taxes therefore occurred postpetition, placing them squarely within § 1305(a)(1).

The Court also examined the interplay between § 502(i) and § 1305(a)(1) as analyzed in In re Joye, which drew on Collier on Bankruptcy for the proposition that § 502(i) applies to taxes incurred prepetition that do not come due until after the petition is filed, while taxes incurred postpetition can be treated only as postpetition claims under § 1305. Because the 2013 taxes were incurred postpetition under the Pacific-Atlantic rule, § 502(i) offered the Debtors no relief in any event.

Having concluded that the 2013 taxes were a § 1305(a)(1) postpetition claim, the Court applied the well-established rule that postpetition claims under § 1305 may be offered for inclusion in a Chapter 13 plan only by the creditor that holds the claim. A debtor has no authority to force a postpetition creditor into the plan by filing a proof of claim on its behalf. The Trustee’s objection was sustained and the Debtors’ proof of claim disallowed.


Why This Matters

  1. Section 502(i) does not reach postpetition taxes whose returns are due postpetition. The provision applies only to taxes entitled to priority under § 507(a)(8)(A)(i) — which requires the return to have been due within three years before the petition date. An income tax return due after the petition date falls outside that window entirely. Practitioners should not assume § 502(i) will bridge the gap between a postpetition tax liability and prepetition claim treatment.

  2. The Ninth Circuit’s “capable of being paid” standard governs when taxes become payable in the Ninth Circuit. Under In re Joye, the relevant inquiry for § 1305(a)(1) purposes is when the tax was capable of being paid — and under In re Pacific-Atlantic Trading Co., income taxes are incurred on the last day of the tax year. A tax year that closes after the petition date produces a postpetition claim regardless of how many days of that year preceded the filing.

  3. Only the creditor may file a § 1305 postpetition claim. Section 1305(a) grants the right to file a proof of claim for postpetition taxes exclusively to the entity that holds the claim. A debtor cannot invoke § 501(c) or Federal Rule of Bankruptcy Procedure 3004 to file on a creditor’s behalf where the underlying obligation is a § 1305 postpetition claim rather than a prepetition one. The creditor’s silence is the creditor’s choice to make.

  4. The IRS may decline plan treatment of a postpetition tax debt. This case illustrates that § 1305 is entirely creditor-driven. The Trustee’s objection represented that the IRS allegedly sought disallowance of the Debtors’ filing rather than simply declining to participate. A Chapter 13 debtor who owes postpetition taxes has no mechanism to compel inclusion of that debt in the plan over the IRS’s objection.

  5. Debtors who owe taxes for a year that closes after their petition date should address the liability outside the plan. Where postpetition income taxes cannot be included in a confirmed Chapter 13 plan, the debt remains the debtor’s obligation to manage directly with the taxing authority. Counsel should advise clients of this reality at the outset and account for ongoing tax obligations in assessing the feasibility of the plan.



Full Decision: Available on PACER, Case No. 13-41591-JDP, Doc. 57 (Bankr. D. Idaho 28 Apr. 2015)