In re Vought

• Decision Date: 16 June 2003
• Docket Number: No. 02SA293.,02SA293.
• Citation: 76 P.3d 906
• Parties: In the Matter of the Application for Water Rights of Peter VOUGHT and the Stucker Mesa Domestic Pipeline Company in Delta Colorado. Peter Vought, Applicant-Opposer-Appellant, v. Stucker Mesa Domestic Pipeline Company, Applicant-Opposer-Appellee, and Division Engineer, Water Division 4, Appellee pursuant to C.A.R. 1(e).
• Court: Colorado Supreme Court

76 P.3d 906

In the Matter of the Application for Water Rights of Peter VOUGHT and the Stucker Mesa Domestic Pipeline Company in Delta Colorado.

Peter Vought, Applicant-Opposer-Appellant, v. Stucker Mesa Domestic Pipeline Company, Applicant-Opposer-Appellee, and Division Engineer, Water Division 4, Appellee pursuant to C.A.R. 1(e).

No. 02SA293.

Supreme Court of Colorado, En Banc.

June 16, 2003.

Patrick, Miller & Kropf, P.C., Kevin L. Patrick, Sara M. Dunn, Aspen, Colorado, Attorneys for Applicant-Opposer-Appellant.

Briscoe & Stanway, P.C., S. Gregg Stanway, Hotchkiss, Colorado, Attorneys for Applicant-Opposer-Appellee.

Division Engineer, Water Division 4, Filed Notice of Non-participation.

Justice HOBBS delivered the Opinion of the Court.

This case involves a dispute over appropriation dates for the right to use water from springs located on Peter Vought's land.¹ Vought appeals a decision by the District Court for Water Division No. 4, granting conditional water rights to both Vought and Stucker Mesa Domestic Pipeline Company (Stucker Mesa) from the same water supply source—springs² arising on Vought's property—with an earlier appropriation date for Stucker Mesa's domestic use over Vought's domestic use.

We affirm the water court's holding that Vought's conditional water rights for domestic use have an appropriation date of October 23, 2000. We agree with the water court that Stucker Mesa has an earlier appropriation date for domestic use, but it is October 6, 2000, not September 27, 2000; hence, we reverse the water court's ruling in part. We also affirm (1) the water court's ruling that Stucker Mesa satisfied the can and will test, and (2) the water court's refusal to dismiss Stucker Mesa's water rights applications.

I.

The water sources claimed for appropriation by both parties in this case are springs located on Vought's land near Paonia in Delta County. The springs are tributary to the North Fork of the Gunnison River. Small amounts of water for domestic use are involved. The principal issue is who has the earlier appropriation date. Stucker Mesa seeks a decree for conditional water rights in the amount of 0.01 cubic feet per second (c.f.s.) from Spring No. 1 and Spring No. 2.³ Vought seeks a decree for conditional water rights in the amount of 0.01 c.f.s. from each of the Springs Nos. 1, 2, and 3.

Vought's application claims that he used the spring water for his livestock since 1970, and he intended since 1970 to build a house on the land and use spring water for a domestic supply. There is no dispute about Vought's absolute water right for the livestock use. The issue is who has the earlier appropriation date for domestic use.

Stucker Mesa is a non-profit domestic water supply company serving twenty-one taps in the area. The company's current water supply is from two other springs not involved in these applications. Stucker Mesa does not have enough water to fully meet the demand of its customers.⁴ Steve Wolcott, President of Stucker Mesa, and Vought are both tap owners and shareholders in Stucker Mesa.

In 1994, a fire swept through the area, burning the hillside where the springs are located and revealing green areas not previously visible from a distance. Stucker Mesa owns an easement over Vought's property for a pipeline, which runs down the hillside several hundred feet from the nearest spring. Sighting the green areas and investigating for a possible pipeline leak and a possible additional water source that would benefit the Stucker Mesa shareholders, including Vought, employees of Stucker Mesa crossed onto Vought's property to the springs, which were in plain view from and relatively close to the easement.

Vought is an absentee landowner. He has used Spring No. 1 for livestock watering since 1970. His ranch foreman from 1995 to December 2001 was Robert Arterburn. Stucker Mesa supplies domestic water to two buildings on the property. Vought testified that he intended since 1970 to build a house on the property and use water from the springs for a domestic supply to it.

Arterburn testified to four actions he took on the property in support of Vought's conditional water rights for domestic use. On October 22, 1996, he cleared debris off of a road leading toward Spring No. 1. On January 27, 1999, he phoned Merritt Dennison, an employee at the Colorado Division of Water Resources, to discuss a possible water rights application. Sometime in October 1999, he drove wooden stakes into each of the three springs with the date "1999 Oct" written on them. In the fall of 2000, following Stucker Mesa's applications for conditional water rights, he dug holes around Spring No. 1 to improve flow and installed pipes leading to a barrel, so he could measure and increase water flow for livestock and domestic use.

Stucker Mesa presented testimony from several individuals regarding steps it took and contradicting Arterburn's testimony. Both parties agree that Stucker Mesa employees entered Vought's property on two occasions prior to filing for the Stucker Mesa conditional decree, and once afterwards. On these occasions, they crossed from Stucker Mesa's easement on Vought's property and walked to the springs, causing no property damage.

During the first entry, on September 26, 2000, Steve Wolcott, Stucker Mesa's President, Phillip Johnson, Stucker Mesa's Vice President, and William Pitt, a private excavating contractor working for Stucker Mesa, walked along Stucker Mesa's easement, inside of Vought's property, marking the location of Stucker Mesa's pipeline. Seeing the green spots on Vought's property, Wolcott thought the pipeline might be leaking. Upon determining that the pipeline was probably not leaking, Wolcott, Johnson, and Pitt departed from the easement to investigate an apparent water source that might benefit Stucker Mesa's shareholders, including Vought. Wolcott testified that Spring No. 1, the largest of the three springs, had a little trickle of water running down the hillside from it; the only standing water was contained in elk footprints. The three men testified that they saw no sign of development of the springs—no stakes, holes, or barrels.

The next day, September 27, 2000, Wolcott again entered onto the Stucker Mesa easement on Vought's property and departed the easement to inspect the springs, this time with his son, Eli Wolcott, who is a geographic information systems (GIS) consultant. Eli used a global positioning system (GPS) device to fix the location of the springs. Wolcott testified that he tasted the water for potability.

After Wolcott filed for conditional water rights, he returned a third time to take pictures and water samples of the springs, on this occasion with his wife, Linda Lindsay. The pictures were later lost. Lindsay testified that she saw no sign of development, and that "[i]t didn't look like anybody had been there for ages." After Lindsay and Wolcott had been at the spring a few minutes, Arterburn joined them and began a lengthy discussion about Stucker Mesa's water rights applications. On the previous trips, Wolcott and his companions had not encountered either Vought or Arterburn.

Although Wolcott filed the Stucker Mesa applications in his own name on October 6, 2000, he later filed an amendment substituting Stucker Mesa as the applicant, because he had been acting on the water company's behalf. The Stucker Mesa applications sought conditional rights for 0.01 c.f.s. from Spring No. 1, in case number 00CW157, and 0.01 c.f.s. from Spring No. 2, in case number 00CW158—claiming a September 27, 2000 appropriation date for each spring, the date of the second entry onto the Stucker Mesa easement and Vought's property to establish the location of the springs through the GPS device. On November 28, 2000, Vought filed statements of opposition to both applications, asserting his livestock use of the springs since 1970 and claiming that Stucker Mesa employees had trespassed on his land before filing the Stucker Mesa applications.

On October 23, 2000, Vought filed his own application, in case 00CW168, claiming (1) an absolute water right from Spring No. 1 for stock water with an appropriation date of May 1, 1970, and (2) conditional water rights from Spring No. 1 for domestic and irrigation uses with an appropriation date of May 1, 1970 and Springs Nos. 2 and 3 for stock, domestic, and irrigation uses, for a total of 0.05 c.f.s. of water. Originally, Vought claimed an appropriation date of October 18, 2000 for the conditional water rights in Springs Nos. 2 and 3, but he later amended his application to claim an appropriation date of October 22, 1996—the date on which Arterburn improved the road leading to Spring No. 1.

The Division 4 Water Referee inspected the springs and concluded that water was available for the Vought and Stucker Mesa applications. The referee recognized Vought's absolute water rights for 0.01 c.f.s. from each of Springs Nos. 1, 2, and 3 for stock water with an appropriation date of May 1, 1970. The referee recognized Vought's conditional rights for 0.01 c.f.s. from each of Springs Nos. 1, 2, and 3, with an appropriation date of October 23, 2000 for domestic use.

The referee recognized Stucker Mesa's conditional water rights for 0.01 c.f.s. of water for domestic use from each of Springs Nos. 1 and 2, with an appropriation date of September 27, 2000.

Vought protested the referee's ruling, asserting that Stucker Mesa's applications were void, or voidable, because of trespass and Stucker Mesa did not prove that it can and will place the water to beneficial use. The water court denied Vought's motion for summary judgment to dismiss Stucker Mesa's water rights applications based on trespass. The water court conducted a one-day trial and entered an order and decree resolving all three cases. The court recognized Vought's absolute right for a total of 0.03 c.f.s. of stock water, 0.01 c.f.s. from each spring; Stucker Mesa does not appeal the...