Mooney v. Kuiper, 2
| Decision Date | 16 January 1978 |
| Docket Number | No. 27699,No. 2,A,2,27699 |
| Citation | 194 Colo. 477,573 P.2d 538 |
| Parties | Donald N. MOONEY and John H. Volosin, Appellants, v. C. J. KUIPER, State Engineer, and Robert W. Jesse, Division Engineer of Water Divisionppellees. |
| Court | Colorado Supreme Court |
Geddes, MacDougall, Geddes & Paxton, P. C., M. E. MacDougall, Colorado Springs, for appellants.
J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Donald H. Hamburg, Sp. Asst. Atty. Gen., Denver (Natural Resources Section), for appellees.
On June 13, 1975, the water court in Division No. 2 awarded conditional water decrees to the appellants based upon two well construction permits that had been issued by the appellees (hereinafter collectively referred to as the state engineer). These one-year well permits were issued on September 28, 1973, and the state engineer had extended them for one additional year, to September 28, 1975. See section 37-90-137(3)(a), C.R.S.1973. The appellants, needing additional time beyond the latter date to complete their wells, requested a second extension. The state engineer, however, took the position that section 37-90-137(3)(a) limited his authority to granting a single, non-renewable one-year extension. Consequently, the appellants filed a motion in the water court seeking an order to extend their permits.
The water court held that the statute allowed only one extension, and that the court had no power to order the state engineer to exceed his statutory authority by granting a further extension. Because we have concluded that the water court misinterpreted the statute, we reverse and remand for further proceedings.
The statute at issue, section 37-90-137(3)(a), C.R.S.1973, provides as follows:
"Any permit to construct a well, issued on or after April 21, 1967, shall expire one year after the issuance thereof, unless the applicant to whom such permit was issued shall furnish to the state engineer, prior to such expiration, evidence that the water from such well has been put to beneficial use, or unless prior to such expiration the state engineer, upon good cause shown, extends such permit for an additional period certain, not to exceed one year." (Emphasis added.)
The appellants contend that, in light of other provisions relating to water right determination and administration, the legislature must have intended that this section allow renewable one-year extensions of well permits, upon annual showings of good cause. We agree.
Since the statute is susceptible to more than one interpretation, it must be construed in light of the apparent legislative intent and purpose. In this regard, we note the familiar rules of statutory construction that directs us to consider the ends the statute was designed to accomplish and the consequences which would follow from alternative constructions. See, e. g., City and County of Denver v. Holmes, 156 Colo. 586, 400 P.2d 901 (1965). If separate clauses in the same statutory scheme may be harmonized by one construction, but would be antagonistic under a different construction, we should adopt that construction which results in harmony rather than that which produces inconsistency. Cooper v. Board of County Commissioners, 131 Colo. 78, 279 P.2d 685 (1955).
In the instant case, to construe section 37-90-137(3)(a) to allow only one extension of each well construction permit would reach a result clearly inconsistent with other statutory provisions relating to conditional water rights. Section 37-92-305(6), C.R.S.1973, provides:
"(6) In the case of an application for determination of a water right or a conditional water right, a determination with respect to a change of a water right or approval of a plan for augmentation, which requires construction of a well, the referee or the water judge, as the case may be, shall consider the findings of the state engineer, made pursuant to section 37-90-137, which granted or denied the well permit, and may grant a conditional decree unless a denial of such permit was justified under said section, and in case a final decree or conditional decree is granted by the court, the state engineer shall issue said permit."
This statute authorizes a water court to grant a conditional water right if a well permit has either been granted or unjustifiably denied. Here, since well permits had already been granted, the water court issued conditional decrees based on the specifications in the permits. Pursuant to statutory directive, the decrees required the appellants to appear and to prove reasonable diligence in May, 1979. See section 37-92-301(4), C.R.S.1973.
Thus the appellants had conditional decrees to...
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...we should adopt that construction which results in harmony rather than that which produces inconsistency. Mooney v. Kuiper, 194 Colo. 477, 479, 573 P.2d 538, 539 (1978); Travelers Indemnity Co. v. Barnes, 191 Colo. 278, 283, 552 P.2d 300, 303 (1976). Two statutes concerning the same subject......
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