Concerning The Application For Water Rights Of The City v. The Farmers Reservoir And Irrigation Co.

• Citation: 235 P.3d 296
• Decision Date: 28 June 2010
• Docket Number: No. 09SA178.,09SA178.
• Parties: Concerning the Application for Water Rights of the City and County of Broomfield.The CITY AND COUNTY OF BROOMFIELD, a county and Colorado municipal corporation, Applicant-Appelleev.The FARMERS RESERVOIR AND IRRIGATION COMPANY, a Colorado corporation, Opposer-AppellantandThe Brighton Ditch Company, City of Aurora, Central Colorado Water Conservancy District, City of Englewood, City of Thornton, City of Westminster, East Cherry Creek Valley Water and Sanitation District, Public Service Company of Colorado, United Water and Sanitation District, Lupton Bottom Ditch Company, Lupton Meadows Ditch, New Coal Ridge Ditch Company, New Consolidated Lower Boulder Reservoir, Platte Valley Irrigation Company, South Adams Water & Sanitation District, and City of Boulder, Opposers-AppelleesandJames Hall, Division Engineer, Water Division 1, Appellee Pursuant to C.A.R. 1(e).
• Court: Supreme Court of Colorado

235 P.3d 296

Concerning the Application for Water Rights of the City and County of Broomfield.The CITY AND COUNTY OF BROOMFIELD, a county and Colorado municipal corporation, Applicant-Appelleev. The FARMERS RESERVOIR AND IRRIGATION COMPANY, a Colorado corporation, Opposer-AppellantandThe Brighton Ditch Company, City of Aurora, Central Colorado Water Conservancy District, City of Englewood, City of Thornton, City of Westminster, East Cherry Creek Valley Water and Sanitation District, Public Service Company of Colorado, United Water and Sanitation District, Lupton Bottom Ditch Company, Lupton Meadows Ditch, New Coal Ridge Ditch Company, New Consolidated Lower Boulder Reservoir, Platte Valley Irrigation Company, South Adams Water & Sanitation District, and City of Boulder, Opposers-AppelleesandJames Hall, Division Engineer, Water Division 1, Appellee Pursuant to C.A.R. 1(e).

No. 09SA178.

Supreme Court of Colorado En Banc.

June 28, 2010.

Harvey W. Curtis & Associates, Harvey W. Curtis, David L. Kueter, Sheela S. Stack, Englewood, Colorado, Attorneys for Applicant-Appellee City and County of Broomfield, a county and Colorado municipal corporation.

Law Office of Akolt and Akolt, LLC, John P. Akolt, III, John C. Akolt, II, Brighton, Colorado, Attorneys for Opposer-Appellant Farmers Reservoir and Irrigation Company, a Colorado corporation.

No appearance on or behalf of Opposers-Appellees Brighton Ditch Company, Central Colorado Water Conservancy District, City of Englewood, City of Thornton, City of Westminster, East Cherry Creek Valley Water and Sanitation District, Public Service Company of Colorado, United Water and Sanitation District, Lupton Bottom Ditch Company, Lupton Meadows Ditch, New Coal Ridge Ditch Company, New Consolidated Lower Boulder Reservoir, Platte Valley Irrigation Company, South Adams Water & Sanitation District, and City of Boulder; and Appellee Pursuant to C.A.R. 1(e) James Hall, Division Engineer, Water Division 1.

Justice BENDER delivered the Opinion of the Court.

I. Introduction

In this appeal, the Farmers Reservoir and Irrigation Company (“FRICO”) asks us to review the water court's finding that the City and County of Broomfield's (“Broomfield”) application for a change in the use of water rights would not injuriously affect the water rights of others. FRICO alleges that the water court erred by not considering numerous tables and calculations that FRICO included in its post-trial proposed decree. The water court characterized FRICO's post-trial tables and calculations as new evidence not subject to cross-examination. FRICO disputes this characterization and argues that its post-trial submissions constitute analysis of evidence presented at trial. We defer to the water court's findings unless the evidence is wholly insufficient to support those findings. Pagosa Area Water & Sanitation Dist. v. Trout Unlimited, 219 P.3d 774, 779 (Colo.2009). Because FRICO's tables and calculations were not introduced at trial, the record supports the trial court's finding that they were new evidence. Based on our independent review of the evidence presented at trial, we conclude that the record amply supports the water court's finding that Broomfield satisfied its burden of proving by a preponderance of the evidence that its application for a change in the use of water rights would not injure the water rights of others. Hence, we affirm the water court's findings.

As a separate issue, FRICO appeals the water court's holding that accretions to a net-losing ditch are not subtracted from the historic beneficial consumptive use of a water right. FRICO agrees with this holding and asks this court to affirm the water court. We hold that FRICO has not presented adequate grounds for an appeal on this issue because it is not seeking the reversal, modification, or correction of the water court's holding, as required by Rule 1(d) of the Colorado Appellate Rules. Because both Broomfield and FRICO agree with the trial court's holding, FRICO presents no dispute for us to resolve. Accordingly, we decline to review the water court's holding regarding accretions to a net-losing ditch, and we affirm the remaining findings of fact, conclusions of law, and judgment of the water court.

II. Facts and Proceedings

On November 30, 2005, Broomfield and Pulte Homes Corporation (“Pulte”) filed an application to change the use of certain water rights. These water rights include 1.82 shares in the Brighton Ditch Company, a 0.5 share in the Lupton Bottom Ditch Company, and 116 shares in the Lupton Meadows Ditch Company (“subject water rights”). FRICO and other parties filed timely statements of opposition to the application. Pulte later conveyed its interest in the subject water rights and withdrew as an applicant.

The water court scheduled a trial to determine whether Broomfield's application for a change in the use of water rights would injure others' water rights. Before trial, Broomfield submitted an eighteen-page proposed decree, which detailed Broomfield's position regarding the points of diversion, sources, amounts, and historic beneficial consumptive uses of the subject water rights. To support this proposed decree, Broomfield offered several exhibits at trial, including decrees from the late 1800s and early 1900s that adjudicated the subject water rights. In addition, Broomfield called several witnesses to testify, including: Howard Cantrell, an owner of the lands irrigated by the Lupton Bottom Ditch Company and the Lupton Meadows Ditch Company; Jennifer Ashworth and Gregory Roush, both of whom were qualified as expert witnesses in water resources and water rights engineering; Robert Stahl, former Water Commissioner for District Two; and Robert Carlson, Water Commissioner for District Six. FRICO called no witnesses to testify at trial and submitted one exhibit into evidence. FRICO's exhibit contained annual diversion records from 1887 to 1909 and showed that the Lupton Bottom Ditch varied in length from year to year.

After the parties finished presenting evidence at trial, the water judge discussed the best way to proceed considering that FRICO did not present any evidence from witnesses. The water court initially directed FRICO to prepare a position statement but, in a later minute order, asked FRICO to submit a proposed decree, which would follow the same organization as Broomfield's proposed decree and would highlight the portions disputed by FRICO. The water court further instructed FRICO to confine any argument to the disputed portions of the proposed decrees. FRICO filed a fifty-page document that contained proposed language for the decree and an argument section. This document included calculations and tables that FRICO created after trial.

FRICO made four arguments in its proposed decree that are relevant to this appeal. The first three arguments alleged that previous owners used water rights on certain properties in a way that unlawfully enlarged the originally decreed rights. In particular, FRICO maintained that the following uses unlawfully enlarged the water rights beyond their original appropriations: (1) the use of the 1893 Slate Ditch right on the Salinas Parcel beyond the 1.75-mile length of the original J & S Ditch, as adjudicated in 1918; (2) the use of the 1863 Lupton Bottom Ditch right on lands beyond the original four-mile length of the Lupton Bottom Ditch; and (3) the use of the 1863 Brighton Ditch right on the lands beyond the original five-mile length of the Brighton Ditch. As a final argument, FRICO alleged that water from Boulder Creek was diverted and stored out of priority in the Coal Ridge Waste Reservoir and that this water should be excluded when calculating historic beneficial consumptive use.

The water court rejected these arguments in its findings of fact, conclusions of law, and judgment. The water court made several determinations based on the evidence about the historic beneficial consumptive use of the various water rights. In its analysis, the water court refused to consider the tables and calculations in FRICO's proposed decree. The water court explained that “[t]he basis for FRICO's tables and calculations [is] not apparent” and “Broomfield did not have the chance to cross-examine the creator of this analysis.” Even though the water court disregarded these tables and calculations, it considered FRICO's underlying arguments. The water court found that Broomfield's application for a change in the use of water rights would not injuriously affect the water rights of others. In addition to its factual findings, the water court made one legal ruling that is relevant to this appeal: it held that accretions to a net-losing ditch should not be subtracted from the historic beneficial consumptive use of a water right.

In this appeal, FRICO argues that the trial court erred by refusing to consider the tables and calculations that FRICO submitted in its proposed decree. As a remedy, FRICO asks this court to remand this case to the water court with instructions that it consider the tables and calculations in FRICO's proposed decree. Further, FRICO appeals the water court's legal ruling concerning accretions to a net-losing ditch. Instead of asking our court to reverse, modify, or correct the water court's legal ruling, FRICO asks us to affirm this ruling.

III. Analysis

A. Injury to the Water Rights of Others

FRICO argues that the water court erred in finding that Broomfield's application would not injuriously affect the water rights of others. FRICO bases this allegation on the water court's refusal to consider tables and calculations, which it argues were based on evidence presented at trial and were submitted in FRICO's post-trial proposed decree. The water court ruled that Broomfield had no opportunity to cross-examine the creators of these tables and calculations, and the water court therefore refused to consider this evidence. As explained below, we defer to the water court's findings of fact...