Danielson v. Jones
| Decision Date | 15 April 1985 |
| Docket Number | No. 82SA400,P,No. 4,4,82SA400 |
| Citation | 698 P.2d 240 |
| Parties | Jeris A. DANIELSON, State Engineer, and Ralph V. Kelling, Division Engineer, Water Divisionlaintiffs-Appellants, v. Ernest L. JONES, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., David Aschkinasi, Wendy C. Weiss, Asst. Attys. Gen., Denver, for plaintiffs-appellants.
Brown and Brown, Bob Tweedell, A. Allen Brown, Delta, for defendant-appellee.
The state engineer and the division engineer 1 appeal a judgment entered by the water judge in water division no. 4, which granted the application of Ernest Jones for a determination of a water right to a well. The judgment awarded the Jones well an absolute right to divert tributary underground water at the rate of 27.5 gallons per minute for domestic, stock watering, irrigation, and fish culture purposes and also a storage right for fish culture. We reverse the judgment.
On August 24, 1977, Jones filed with the state engineer an application for a permit to construct a well. See § 37-90-137, 15 C.R.S. (1973 & 1984 Supp.). Jones sought to pump fifteen gallons per minute (gpm) for domestic use and for the irrigation of one acre of land, with an average annual appropriation of 1.0 acre feet of water. The proposed well was to be located in Delta County near Surface Creek, a tributary of the Gunnison River. The state engineer granted Jones a well permit with the specification that it was "for domestic use, including the irrigation of not over one acre of home gardens and lawns." Jones completed construction of his well on October 17, 1979.
On October 25, 1979, Jones, pursuant to the Water Right Determination and Administration Act of 1969 (the Water Right Act), §§ 37-92-101 to -602, 15 C.R.S. (1973 & 1984 Supp.), filed an application for determination of a water right in the district court for water division no. 4. Jones sought a decree for 60 gpm of water to be used for domestic, stock, and irrigation purposes for his 40 acre tract. The water clerk, pursuant to section 37-92-302(3), 15 C.R.S. (1973 & 1984 Supp.), included Jones' application in the resume of water right applications published in local newspapers. The published resume recited that Jones sought 60 gpm of water to be used for "domestic, stockwatering and irrigation purposes" with an appropriation date of October 17, 1979. No statements of opposition were filed to the application. The water referee ruled that because of the limitations of the permit issued by the state engineer, Jones was entitled to 15 gpm of water for domestic use only.
Jones filed a protest to the ruling of the water referee, objecting to the referee's limitation on both the amount and usage of water. He also filed another application with the state engineer for an increase in yield on his well permit, seeking 60 gpm of water, with an average annual appropriation of 4.0 acre feet, for domestic and livestock purposes, for irrigating 25 acres of land, and for the additional purpose of "[f]ish ponds" to be used in the raising of trout. The state engineer on May 14, 1980, denied Jones' application for an increase in yield on his well permit, finding as follows:
That ground water produced by the proposed well will be hydraulically connected to and can influence the rate or direction of movement of water in the Youngs Creek, Kiser Creek, and Forked Tongue Creek system.
That due to the over-appropriated nature of the Youngs Creek, Kiser Creek, and Forked Tongue Creek system, the State Engineer cannot issue a non-exempt well [permit] in the proposed location at this time.
That the location of the proposed well will be at a distance less than six hundred feet from an existing well.
That the vested water rights of a senior appropriator diverting water from a well less than six hundred feet from the proposed subject well would be materially injured.
That the exercise of the requested permit will divert water from or tributary to the Youngs Creek, Kiser Creek, and Forked Tongue Creek system, and will therefore materially injure the vested water rights of others.
Jones did not appeal the state engineer's denial of his application for an increase in yield on his well permit. 2
Subsequent to the state engineer's denial of Jones' application for an increase in yield on his well permit, Jones on July 7, 1981, filed an amended protest to the water referee's ruling. Asserting that the capacity of his well had declined from its initial 60 gpm production to 27.5 gpm, Jones' amended protest stated that he was "hereby amend[ing] his application for water decree for his water well for 27.5 gpm for domestic, stock watering, irrigation and fish culture purposes." At no time was Jones' purported amendment to his application for determination of a water right included in the resume published by the water clerk in accordance with section 37-92-302(3) of the Water Right Act. After Jones filed his amended protest, the water judge entered an order re-referring the matter to the water referee. No statements of opposition having been filed, the referee issued an amended ruling on August 4, 1981, awarding an absolute decree to the Jones well "for an amount of water not to exceed 27.5 gpm for domestic, stock watering, irrigation and fish culture purposes, as of appropriation date October 17, 1979." The state engineer filed a protest to the ruling.
In the hearing before the water judge on the state engineer's protest, Jones described the general characteristics of the well, including its depth and capacity, and outlined the manner in which he used its 27.5 gpm yield for domestic, stock watering, irrigation and fish culture purposes. He testified that he raised fish in a series of three fish ponds which were supplied by a continuous flow from his well. The water flows directly from the well into the first pond, with the overflow being released to pasture land and diverted to the second pond by underground pipes equipped with valves to divide the diversion between several acres of pasture land, and then to a third pond. Jones' horses and cattle have access to all three of the ponds. The overflow from the third pond is transmitted to a large cistern and is used to irrigate his lawn and garden. Well water not used on Jones' land is diverted to a carrier ditch.
The state engineer presented testimony from the water commissioner in district 40 which indicated that the water diverted by the carrier ditch was transmitted away from the Youngs Creek, Kiser Creek, and Forked Tongue Creek stream system into another stream system principally comprised of Surface Creek. The water commissioner also testified that the Youngs Creek, Kiser Creek, and Forked Tongue Creek stream system is overappropriated and that holders of senior water rights have placed a call on Youngs Creek nearly every year during irrigation season, thereby requiring junior water rights on this creek to be shut down. A water resource engineer from the state engineer's office testified that, based on a geological study of the area in which Jones' well is located, the water-bearing formations supplying the well also contribute to the surface flow of Youngs Creek, Kiser Creek, and Forked Tongue Creek, and that diversion of water by the Jones well decreases the quantity of water available in the stream system by the amount of the diversion.
The water judge on May 10, 1982, awarded the Jones well an absolute decree for an amount of water not to exceed 27.5 gpm, "being .1225 acre feet of water in a period of 24 hours," for "domestic, stock watering, irrigation and fish culture purposes, with [the] right to store such water as may be necessary for such fish culture." 3 After noting that no one holding a senior water right had opposed Jones' application 4 4 and that the state engineer, who had initially granted Jones a well permit for 15 gpm, was presumably only contesting Jones' application for a decree to his well for an additional 12.5 gpm in excess of the 15 gpm, the court concluded that the 12.5 gpm was such an "infinites[i]mal quantity of water" that "[n]o possible adverse [e]ffect could be suffered by other appropriators from the allegedly affected stream system." This appeal followed.
The state engineer claims that the water court's decree is void because it grants Jones the right to use water for fish cultivation and a concomitant storage right and, since Jones did not include fish culture and storage in his original application for a water right, notice of such intended uses was never published in the resume as required by section 37-92-302(3), 15 C.R.S. (1973 & 1984 Supp.). A review of the applicable provisions of the Water Right Act, which governs the priority system of appropriation of surface and underground tributary water except water included in the definition of designated ground water, see generally State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo.1981), leads us to conclude that Jones' failure to include fish culture and a concomitant storage right in the application which formed the basis of the published resume nullified these parts of the decree authorizing the use of 27.5 gpm for these two purposes. 5
The Water Right Act provides the sole method for determining a water right to underground tributary water, and its provisions must be adhered to in seeking a judgment and decree pertaining to a water matter. See, e.g., Fort Lyon Canal Co. v. Catlin Canal Co., 642 P.2d 501 (Colo.1982); Gardner v. Enewold, 200 Colo. 221, 614 P.2d 357 (1980). As a consequence, a water judge may only consider those water matters that are presented in a proper application and in a manner that provides appropriate notice to potential objectors. See, e.g., United States v. City and County of Denver, 656 P.2d 1 (Colo.1982); Town of Breckenridge v. City and County of Denver, 620 P.2d 1048 (Colo.1980); Orchard City Irrigation...
To continue reading
Request your trial
-
City of Thornton v. Bijou Irr. Co.
...such appropriators had no cause to anticipate injury from the claims. Id. at 258, 592 P.2d at 1320. Similarly, in Danielson v. Jones, 698 P.2d 240, 246 (Colo.1985), we held that a resume that described an application as requesting a determination of a water right for "domestic, stock, and i......
-
Closed Basin Landowners Ass'n v. Rio Grande Water Conservation Dist.
...of an application for a conditional water right, the applicant must strictly comply with the requirements of the Act. See Danielson v. Jones, 698 P.2d 240 (Colo.1985); G. and M. Properties v. Second Judicial District, 95 Nev. 301, 594 P.2d 714 (1979). See also Coppinger v. Coppinger, 130 Co......
-
Concerning Application for Water Rights of Turkey Canon Ranch Ltd. Liability Co., 2
...operate in the water court as a presumption, and the applicant bears the burden of overcoming the presumption. See Danielson v. Jones, 698 P.2d 240, 248-49 (Colo.1985). Hence, the state engineer's findings were sufficient and the water court was entitled to proceed to hear the application f......
-
Monaghan Farms, Inc. v. City and County of Denver By and Through Bd. of Water Com'rs, 1
...a meaningful opportunity to participate in judicial water right determinations that may affect their vested rights. Danielson v. Jones, 698 P.2d 240, 245 (Colo.1985). Notice of proceedings to determine water rights is provided through the special statutory procedure set forth in section 37-......
-
Constitutional Limits on Police Power Regulations Affecting the Exercise of Water Rights
...App. 1897); Wilmore v. Chain o' Mines, 44 P.2d 1024 (Colo. 1934). 15. Kuiper v. Warren, 580 P.2d 32 (Colo. 1970); Danielson v. Jones, 698 P.2d 240 (Colo. 1985); Alamosa-La Jara Water Users Protection Ass'n v. Gould, 674 P.2d 914 (Colo. 1983). 16. 33 U.S.C. § 1362. Under § 402 of the Act, no......
-
What Is a Material Injury to a Water Right?
...of Steffens, 756 P.2d 1002, 1007 (Colo. 1988) (appropriator cannot be deprived of the "full decreed entitlement"); Danielson v. Jones, 698 P.2d 240, 249 (Colo. 1985) (.0275 cfs per day is a material injury); Giffen v. State, 690 P.2d 1244, 1245 (Colo. 1984) (.2 acre feet per year is a mater......
-
Assault on the Citadel, Part Ii: Dams, Diversions and Water Quality Regulations
...return flows. See note 10, supra. 24. CRS §§ 37-82-105; 37-90-111(1)(g) and 137(2); 37-92-305(3) and 502(2). 25. Danielson v. Jones, 698 P.2d 240,249-250 (Colo. 1985); Southeastern Colo. Water Cons. Dist. v. Rich, 625 P.2d 977, 981 (Colo. 1981); Alamosa-La Jara Water Users Prot. Assoc., 674......