Pueblo West Metropolitan Dist. v. Southeastern Colorado Water Conservancy Dist., 84SA310

• Decision Date: 21 April 1986
• Docket Number: No. 84SA310,84SA310
• Citation: 717 P.2d 955
• Parties: PUEBLO WEST METROPOLITAN DISTRICT, Applicant-Appellant, v. SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT and Upper Arkansas Water Conservancy District, Objectors-Appellees, and Robert Jesse as Division Engineer, Appellee.
• Court: Colorado Supreme Court

Page 955

717 P.2d 955

PUEBLO WEST METROPOLITAN DISTRICT, Applicant-Appellant, v. SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT and Upper Arkansas Water Conservancy District, Objectors-Appellees and Robert Jesse as Division Engineer, Appellee.

No. 84SA310.

Supreme Court of Colorado En Banc.

April 21, 1986.

As Modified on Denial of Rehearings

May 19, 1986.

Law Office of Robert F. T. Krassa, Robert F. T. Krassa, Pueblo, for applicant-appellant.

Fairfield & Woods, Howard Holme, Kevin B. Pratt, Denver, for objectors-appellees.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Wendy C. Weiss, Asst. Atty. Gen., Denver, for appellee.

KIRSHBAUM, Justice.

Applicant, Pueblo West Metropolitan District (Pueblo West), appeals a portion of a decree of the water court granting a request for change of water right. ¹ Pueblo West protests the water court's imposition of a volumetric limitation on the amount of water available at the new point of diversion. Objector, Southeastern Colorado Water Conservancy District (Southeastern), asserts that the water court lacked subject matter jurisdiction to issue the decree. We conclude that the water court had subject matter jurisdiction and affirm its judgment.

In 1981, Pueblo West filed an application for a change in the place of use and point of diversion of the Wheel Ranch Ditch water right (the water right). The water right was decreed in 1896 and bore a priority date of March 1891, a relatively junior water right on the over-appropriated Arkansas River. Prior to 1916, a water wheel was used to move water from the Arkansas River into the Wheel Ranch Ditch, which water was used to irrigate the adjacent farmland. Thereafter, the landowners ceased using the water wheel, dug a well and pumped the tributary ground water into the ditch.

In 1921, a flood washed out the ditch and silted up the well. No irrigation occurred on the land until 1937, at which time the new landowner, George Vercelli, dug out the well and ditch and began to use them again. At some point in the 1950's, a new well was dug about 550 feet east of the original well and irrigation occurred as before with the use of tributary ground water. Neither of the two wells was ever decreed as an alternate point of diversion for the water right. In 1968, the Bureau of Reclamation purchased the land, but not the water right. Pueblo West's developer purchased the water right in 1969. As the result of the construction of the Pueblo Reservoir, by 1972 the former farmland was at the bottom of the reservoir.

Pueblo West's 1981 application requested a change in the place of use of the water right from the farmland to the Pueblo West golf course and a change in the point of diversion from the originally decreed ditch to the pumping station of the Pueblo Reservoir. Neither the application nor the published resume referred to either of the two wells as alternate points of diversion. Southeastern objected to Pueblo West's requested change as injurious to the vested rights of other water users and asserted that the water right had been abandoned.

The water court bifurcated the trial as to the abandonment issue and the change of water right. With regard to the issue of abandonment, the water court found that a portion of the 1921 to 1937 period of non-use was excused and concluded that use of the water via the two undecreed wells rebutted any presumption of intent to abandon arguably resulting from any of the several periods of non-use. That ruling has not been appealed.

In granting the request for change, the water court, to protect the interests of other users, imposed several conditions on Pueblo West's use of the water right, including a limitation of 14.6 acre feet per year on Pueblo West's withdrawals based on the estimated historical in-priority consumptive use of the water right. Pueblo West appeals the volumetric limitation condition and also appeals several evidentiary rulings of the water court. In its answer brief, Southeastern argues that because neither Pueblo West's application nor the resume names or describes the two wells as alternate points of diversion, the water court lacked subject matter jurisdiction to consider the application.

I

We first address the jurisdictional issue. Although Southeastern did not challenge the water court's jurisdiction prior to this appeal, it is axiomatic that questions of subject matter jurisdiction may be raised at any time. C.R.C.P. 12(h)(3); see Parker v. Southeastern Colorado Water Conservancy District, 174 Colo. 210, 483 P.2d 232 (1971). In water right cases, published notice of the proposed change when in compliance with applicable statutory requirements, is sufficient to permit the water court to exercise subject matter jurisdiction and to bind all affected parties to the final decree. See Danielson v. Jones, 698 P.2d 240 (Colo.1985). The published notice takes the form of a summary resume of applications which is published monthly in the affected counties and mailed to those persons who have placed themselves on the mailing list.

Section 37-92-302(3), 15 C.R.S. (1985 Supp.), contains the following pertinent requirements regarding the contents of a resume:

The resume shall give the name and address of the applicant, a description of the water right or conditional water right involved, and a description of the ruling sought.

In Stonewall Estates v. CF&I Steel Corp., 197 Colo. 255, 592 P.2d 1318 (1979), we affirmed the water court's decision to vacate an earlier decree on the ground that the water court lacked jurisdiction to enter the decree. The water court concluded that because the published resume did not state that the subject water right was non-tributary, no jurisdiction attached and the decree entered was void. In upholding the water court's decision, we held that in the circumstances of that case the failure of the resume to refer to the non-tributary character of the subject water right constituted a serious omission of material fact because those affected by the decree were entitled to presume that the application was for tributary water only. Pueblo West Metropolitan District v. Southeastern Colorado Water Conservancy District, 689 P.2d 594 (Colo.1984).

Contrary to the situation in Stonewall Estates, 197 Colo. 255, 592 P.2d 1318, the omission of the two wells from the resume notice here was not sufficiently material to deprive the water court of jurisdiction. Pueblo West's application for change of the water right and the resume based thereon stated that the subject water right was from waters tributary to the Arkansas River. Whether the water right was diverted from wells near the ditch or from the ditch itself would not cause confusion or mislead parties whose interests might be affected by Pueblo West's application. We conclude, therefore, that the resume sufficiently described the subject water right in this case.

II

Pueblo West argues that the water court erred in imposing a volumetric limitation based on factors other than the water right's actual historical consumptive use of eighty-two to eighty-eight acre feet per year. ² The water court found that the water right had been used from 1937 to 1968 to irrigate forty acres of alfalfa, corn and pasture with a consumptive use of 2.1 acre feet per acre resulting in a total consumptive use figure of eighty-two to eighty-eight acre feet per year. Because many diversions of the water right were out of priority, the water court reduced Pueblo West's total historical consumptive use figure by a percentage reflecting the number of days during a representative period, 1967 to 1980, when the water right could not have been diverted had it been strictly administered. For the period 1967 to 1980, the water court found that during the applicable 214 day season the water right was in priority an average of 19.4 days. Increasing this figure by a soil moisture carry-over component of 11.7 days, the water court calculated the average in-priority percentage for the season to be 14.5%. The water court then calculated the maximum allowable in-priority consumptive use necessary for irrigating the crops on the Wheel Ranch Ditch to be 0.31 acre feet per acre. Considering the parties' stipulation that the sprinkler system used to irrigate the golf course was 85% efficient--i.e., that 85% of the water applied was consumptively used--the water court concluded that the allowable diversion by Pueblo West would be 14.6 acre feet per year.

The water court approved this limitation as the result of its conclusion that Pueblo West could rely only on an historical consumptive use figure which approximated diversions which would have been made in priority at a decreed point of diversion. Pueblo West argues that this limitation contravenes the rule set forth in Southeastern Colorado Water Conservancy District v. Rich, 625 P.2d 977 (Colo.1981). There, we held that where the water commissioner is aware of out-of-priority diversions, but does not limit or discontinue the diversions, the diversions made pursuant to the water right "though not in priority, can be considered as establishing historical use for the purpose of the change of water right...