Ready Mixed Con. Co. v. Farm. Res. and Irr.
| Decision Date | 13 June 2005 |
| Docket Number | No. 04SA285.,04SA285. |
| Citation | 115 P.3d 638 |
| Parties | In the Matter of the Application for Water Rights, Applicant-Appellant: READY MIXED CONCRETE COMPANY IN ADAMS COUNTY, v. Objectors-Appellees: FARMERS RESERVOIR AND IRRIGATION COMPANY, State and Division Engineer, City of Thornton, the Irrigationists Association, Central Colorado Water Conservancy District, the Ground Water Management Subdistrict of the Central Colorado Water Conservancy District, and Denver Water Department. |
| Court | Colorado Supreme Court |
Fowler, Schimberg & Flanagan, P.C., Timothy J. Flanagan, Denver, for Applicant-Appellant.
John P. Akolt, III, Brighton, for Objector-Appellee Farmers Reservoir and Irrigation Company.
John W. Suthers, Attorney General, Susan Schneider, Assistant Attorney General, Natural Resources Section, Denver, for State Engineer & Division Engineer for Water Division 1.
Margaret A. Emerich, City Attorney, City of Thornton, Dennis A. Hanson, Assistant City Attorney, Thornton, for Objector-Appellee City of Thornton.
Carlson, Hammond & Paddock, L.L.C., Mary Mead Hammond, Amy N. Huff, Denver, for Objector-Appellee Irrigationists Association.
Lind, Lawrence & Ottenhoff, Kelly J. Custer, Greeley, for Objectors-Appellees Central Colorado Water Conservancy District and the Ground Water Management Subdistrict of the Central Colorado Water Conservancy District.
Michael L. Walker, Denver, for Objector-Appellee Denver Water Department.
This appeal is from a judgment of the District Court for Water Division No. 1 denying the application of Ready Mixed Concrete Company under section 37-92-302(1)(a), C.R.S. (2004), to quantify and change the McCanne Ditch water right for use by augmentation. By a motion for summary judgment, which the water court denied, Ready Mixed Concrete claimed entitlement under a 1918 decree to 900 acre-feet of fully consumable "developed water" for its use. The water court construed the 1918 referee's report and resulting decree as recognizing a native South Platte water seepage right for irrigation use on 300 acres of land in the vicinity of the South Platte River. When Ready Mixed Concrete failed to bear its burden of proving the historical use of the irrigation right over a representative period of time, the water court dismissed the change application.
We affirm the water court's judgment. The plain language of the 1918 decree and the accompanying referee's report demonstrate that the McCanne Ditch water right takes its source in tributary South Platte River water for irrigation on 300 acres of land. The water court correctly dismissed the change of water right application when Ready Mixed Concrete failed to carry its burden of proving the historical consumptive use measure of the water right for change purposes.1
Commenced in 1892, the McCanne Ditch extended for six and a half miles in length upon completion in 1893. According to the 1918 decree and accompanying referee's report, the ditch collected water from "springs percolating, drainage and seepage water gathered along the first three miles of its course." Beginning in 1894, the collected water was conveyed and placed to irrigation on 300 acres of land. The 1918 decree recognizes an appropriation date of March 16, 1892, a rate of flow of 4.0 cubic feet per second for irrigation use on 300 acres, not to exceed 900 acre-feet of water annually. The decree requires the water remaining after irrigation to be returned to the South Platte River system directly or by percolation through the soils.
Ready Mixed Concrete owns and operates several gravel pits located on the lands that the McCanne Ditch historically served. It holds all the shares of the McCanne Ditch and Reservoir Company, a mutual ditch company, which owns the water right.
Ready Mixed Concrete filed the change case so that it might store water under the McCanne Ditch priority in a newly excavated gravel pit, Edgar Pond, and release it to the South Platte River as necessary to replace evaporation depletions injurious to other rights from gravel pits the company operates.
Pursuant to section 37-92-302(1)(b), C.R.S. (2004), several parties ("Objectors") filed statements of opposition.2 They claimed the application, if granted, would alter historic stream conditions as they had existed under the decreed irrigation use for McCanne Ditch water. Because the case involved judicial construction of the 1918 decree, the application was re-referred to the water judge.
Ready Mixed Concrete sought summary judgment claiming 900 acre-feet annually of fully consumable developed water for use by augmentation or replacement, free of the river's call. The Water Court denied summary judgment, ruling that:
1. The water subject to this Application is salvaged water.
2. Pursuant to the 1918 Decree, Applicant's diversion is not subject to a senior call.
3. Notwithstanding the 1918 decree, the quantity of water diverted by the Applicant, in excess of Applicant's historical consumptive use, is subject to the prior appropriation doctrine.
4. Opposers are not collaterally estopped from litigating the question of historical consumptive use.
5. Abandonment by the Applicant of any portion of its 1918 Decreed rights is a question of fact to be determined at trial.
6. There is no genuine dispute regarding the Applicant's ownership of shares in the McCanne Ditch.
In accordance with section 37-92-305(3)-(4), C.R.S. (2004), the case proceeded to trial for quantification of historical beneficial consumptive use and establishment of return flow patterns and protective conditions for other water rights under which the change decree might issue.
The water court made the following findings:
1. The probable source of the water collected by the McCanne Ditch was return flows attributable to the irrigation of lands lying above the McCanne Ditch, which lands were supplied by the Fulton Ditch.
2. The South Platte River is an "over-appropriated" river. The effect of such over-appropriation is that if the historical use attributable to a water right is expanded by increased consumptive use or failure to maintain historical return flows, the vested rights of other appropriators on the South Platte River will be adversely affected.
3. The source of supply for McCanne Ditch is springs, drainage, and seepage water gathered along the first three miles of the ditch. Seepage losses along the carrying section of the ditch are significant. The McCanne Ditch does not divert from the South Platte River itself.
4. No irrigation has been made of the McCanne Ditch decree since at least 1974. From 1976 to the present the McCanne Ditch decree has been used to generate augmentation credits by the Central Colorado Water Conservancy District (as previous owner and as lessee).
5. There is insufficient evidence of any actual irrigation on the farm land presented by Ready Mixed during any period, including the study period of 1917-1974.
The water court then dismissed the change application because Ready Mixed Concrete failed to meet its burden of proof to demonstrate historical consumptive use of the McCanne Ditch water right over a representative period of time.
Ready Mixed Concrete claims that the 1918 decree and accompanying referee's report recognized a water right for 900 acre-feet of fully consumable developed water free of the river's call. We disagree, and affirm the water court's judgment dismissing the change of water right application.
We hold that the plain language of the 1918 decree and the accompanying referee's report demonstrate that the McCanne Ditch water right is for tributary South Platte Basin water used for irrigation on 300 acres of land. The water court correctly dismissed the change application when Ready Mixed Concrete failed to carry its burden of proof to demonstrate the historical consumptive use measure of the water right for change purposes.
Judicial construction of a water decree and the accompanying referee's report is a matter of law we review de novo. Orchard City Irrig. Dist. v. Whitten, 146 Colo. 127, 133-34, 361 P.2d 130, 133 (1961). In construing the decree, we must deduce its meaning, not from detached parts thereof, but from the whole instrument. Drach v. Isola, 48 Colo. 134, 141-42, 109 P. 748, 751 (1910).
A water right decree confirms pre-existing rights; it does not create or grant any rights, but serves as evidence of rights previously acquired by appropriation of unappropriated water. Shirola v. Turkey Canon Ranch Limited Liability Co., 937 P.2d 739, 748 (Colo.1997); Cresson Consolidated Gold Mining & Milling Co. v. Whitten, 139 Colo. 273, 283, 338 P.2d 278, 283 (1959).
The 1918 McCanne Ditch decree was for irrigation use of seepage waters. Colorado water law contains a presumption that all waters are tributary to a natural stream, DeHaas v. Benesch, 116 Colo. 344, 350, 181 P.2d 453, 456 (1947), and subject to the constitutional right of prior appropriation. Nevius v. Smith, 86 Colo. 178, 181, 279 P. 44, 45 (1929); Comstock v. Ramsay, 55 Colo. 244, 256-57, 133 P. 1107, 1111 (1913). Any party seeking to establish that any waters are not tributary has the burden of proving that fact. DeHaas, 116 Colo. at 350, 181 P.2d at 456.
Water seeping from other ditches and from irrigation of lands is presumed to belong to the river system and is subject to appropriation and administration in order of priority. This was established Colorado law before entry of the 1918 McCanne Ditch decree. Flowing water, even diffuse runoff and seepage that is not in a defined channel, is presumed to be tributary to the river system. Comstock, 55 Colo. at 256, 133 P. at 1111; see also Nevius, 86 Colo. at 181-82, 279 P. at 45.
By the close of the Nineteenth Century, agricultural ditches interlaced the South Platte Basin along Colorado's Front Range and downstream to Nebraska.3 Constru...
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