Archuleta v. Gomez
| Decision Date | 20 January 2009 |
| Docket Number | No. 08SA109.,08SA109. |
| Citation | 200 P.3d 333 |
| Parties | Ralph L. ARCHULETA, Plaintiff-Appellant v. Theodore GOMEZ, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Max I. Exline, Pueblo, Colorado, Attorney for Plaintiff-Appellant.
MacDougall, Woldridge & Worley, P.C., Henry D. Worley, Colorado Springs, Colorado, Attorneys for Defendant-Appellee.
Plaintiff/Appellant Ralph L. Archuleta appeals a judgment entered by the District Court for Water Division No. 2. The judgment denied and dismissed Archuleta's complaint for an injunction against Theodore Gomez seeking restoration of three ditch rights-of-way and delivery of water through the ditches. The water court ruled that Gomez adversely possessed, and is now the owner of decreed irrigation water rights deeded to Archuleta in the: (1) Manzanares Ditch No. 1 (priority 26), (2) Archuleta Ditch (priority 30), and (3) Manzanares Ditch No. 2 (priority 31), all diverting from the Huerfano River in the Arkansas River Basin. The water court also determined that Archuleta's claim for an injunction against Gomez for interference with Archuleta's use of the Archuleta Ditch, priority 30, was substantially frivolous and awarded attorney's fees to Gomez in the amount of $2,665.00.
On appeal, Archuleta contends that Gomez has not satisfied his burden of proof to demonstrate the first element of adverse possession in a water case: actual beneficial use of another person's adjudicated water right, exclusively, hostilely, and adversely to the owner. Archuleta also contends the water court erred in awarding attorney's fees against him in regard to his injunction claims relating to the Archuleta Ditch.1
Adverse possession law in Colorado prevents a claimant from adversely possessing water that is within a surface stream or tributary aquifer, but allows private water users within an irrigation ditch to adversely possess against each other behind the headgate, that is, after the water has been diverted from the stream or aquifer pursuant to an adjudicated water right. We agree with Archuleta that, to succeed in his adverse possession claim, Gomez must demonstrate that he exclusively, hostilely, and adversely made an actual beneficial consumptive use of all or a portion of Archuleta's deeded irrigation water right interests on the Gomez lands for the 18-year adverse possession period, not just that he intercepted water in the three ditches belonging to Archuleta's deeded interests in the adjudicated water rights.
On the other hand, to succeed on his injunction action against Gomez to restore water deliveries through the three ditches, Archuleta must show that he did not abandon all of his water rights to the stream. All or any portion of an abandoned water right belongs to the stream, and neither an injunction nor an adverse possession action can revive an abandoned water right.
The water court awarded all of Archuleta's deeded interests in the adjudicated water rights to Gomez. However, the facts contained in the record of this case suggest that a portion of Archuleta's adjudicated water rights may have been abandoned to the stream, a portion may have been adversely possessed by Gomez, and a portion may still belong to Archuleta. A quantification of the use Gomez and Archuleta actually made of the historical beneficial consumptive use belonging to the perfected irrigation water rights of their common predecessor-in-interest, Sabino Archuleta, is required to determine how much, if any, of the beneficial consumptive use belonging to Archuleta's deeded interests now belongs to Gomez or Archuleta, or has been abandoned to the stream.
Even though the amount of water involved in this case may appear to be relatively small, the Arkansas River Basin wherein the Huerfano River is located is over-appropriated,2 adjudicated water rights with senior priorities are valuable, and the issues the parties have chosen to contest are highly significant to the water law.
Given the present state of the record, we determine that Archuleta has not sustained his burden of proof in the injunction action to restore ditch rights-of-way and water deliveries through them; nor has Gomez sustained his burden of proof to demonstrate adverse possession of all or any portion of Archuleta's deeded interests in the adjudicated irrigation water rights. Both parties deserve an opportunity to provide supplementary evidence consistent with the legal standards applicable to adverse possession and abandonment water law, if they choose to do so.
Accordingly, we reverse the judgment of the water court and remand this case for further findings of fact and judgment regarding both the injunction and adverse possession claims in this case.
Archuleta sought a preliminary injunction requiring Gomez to restore ditches and allow his water to pass through the ditches to his parcel, pursuant to his record title to adjudicated irrigation water rights in three ditches: (1) Manzanares Ditch No. 1 (priority 26), (2) Archuleta Ditch (priority 30), and (3) Manzanares Ditch No. 2 (priority 31). Each of these ditches divert from the Huerfano River at separate headgates and only a handful of owners have rights in the adjudicated priorities for these ditches. Gomez contested Archuleta's request for a preliminary injunction on the basis of adverse possession.
Archuleta and Gomez both derive record title for their land, as well as water rights adjudicated for the three ditches, from a common predecessor-in-interest, Sabino Archuleta, Archuleta's grandfather. Gomez acquired his upper parcel and water rights from Sabino Archuleta in 1962, and his lower parcel and water rights from Sabino Archuleta in 1968. Lupe Archuleta, Sabino's son and Archuleta's father, obtained his parcel and water rights in 1967, the year before Gomez acquired the lower parcel from Sabino. Archuleta obtained his parcel and water rights in the three ditches from Lupe Archuleta's estate in 1991.
The deed of May 11, 1962, from Sabino Archuleta to Gomez provides for:
An undivided one-half interest in the following lands and water rights: SW1/4 SW1/4 of Section 34, Township 26 South, Range 71 West of 6th P.M.; NW1/4 NW1/4 of Section 3; NE1/4 NE1/4 of Section 4, Township 27 South, Range 71 West of the 6th P.M.; containing 120 acres, more or less;
Together with all water and water rights appurtenant thereto, and particularly a pro rata interest in the Archuleta Ditch and 1.24 cu. ft. of water of the 3.68 cu. ft. of water allowed to flow therein under priority 30.
(Emphasis added). This 120-acre parcel owned by Gomez was referred to as the "upper parcel" during the trial.
The land and water rights description contained in the October 20, 1967, deed from Sabino Archuleta to Lupe Archuleta reads as follows:
West 18 acres of NE1/4 NW1/4 Section 2, Township 27 South, Range 71 West of the 6th P.M., together with 18/120s of the following described water rights: Interest in the Archuleta Ditch, and all of its 1.24 cubic feet of the 3.68 cubic feet of water per second of time allowed to flow thereun under Priority No. 30; 18/120s interest in a 1/6 interest in the Manzanares Ditch plus its 1/6 of the water allowed to flow therein under Priority No. 26; 18/120s in a 1/2 interest in the Manzanares No. 2 Ditch and 1/2 of the water allowed to flow therein under Priority No. 31[;] together with his interest in those ditches necessary to move and transport said water rights.
(Emphasis added). Archuleta acquired this 18-acre parcel and water rights in the three ditches from Lupe Archuleta's estate through the deed dated August 30, 1991.
The deed of March 27, 1968, from Sabino Archuleta to Gomez provides:
Township 27 South, Range 71 West of the 6th P.M. Section 2: E1/2 NW1/4; NW1/4 NW1/4 excepting therefrom the following described tract, to-wit: Beginning at the Southwest corner of the NE1/4, NW1/4, thence North 1320 feet[,] thence East 594 feet, then South 1320 feet, thence West 594 feet to the place of beginning; Together with all grantors rights and interest in the Archuleta Ditch being 102/120ths of 1.24 cu. ft. of water allowed to flow therein under priority 30, together with the same proportionate interest in the ditch, and 102/120ths of 1/6th of the 3.34 cu. ft. of water allowed to flow in the Manzanares Ditch priority 26, and a like interest in the ditch 102/120ths interest in 1/2 of .7 cu. ft. of water allowed to flow in Manzanares Ditch #2 under priority 31 and a like interest in the ditch and any and all, other ditches, ditch rights, water and water rights appurtenant thereto[.]
(Emphasis added). This 102-acre parcel owned by Gomez was referred to as the "lower parcel" during the trial. It surrounds and encloses Archuleta's 18-acre parcel.
The layout of the various parcels and the three ditches appears in Exhibit No. 1 in the record, an annotated aerial photograph. It shows the location of Gomez's and Archuleta's parcels and the three ditches, in relation to each other and other property owners north of the Huerfano River, near Redwing, Colorado in the Upper Huerfano river drainage of the Arkansas River Basin. Archuleta Ditch runs through Gomez's upper parcel. Exhibit No. 1 shows this ditch ending near the boundary of the Fortune 1 and Harms properties at the boundary of Gomez's lower parcel. Manzanares Ditch No. 1 runs through the western part of Gomez's lower parcel, across Archuleta's parcel, and onto the eastern part of Gomez's lower parcel. Manzanares Ditch No. 2 runs through the Fortune 1 and Harms parcels, and ends on the western side of Gomez's lower parcel.
The evidence shows, and the parties agree, that Gomez plowed under Manzanares Ditch No. 2 on the western side of his lower parcel, so that the ditch no longer runs onto Archuleta's property, and that Gomez intercepted water that would otherwise flow through the Manzanares Ditch No. 1 onto Archuleta's parcel. Although the Archuleta...
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