Roaring Fork Club, LP v. St. Jude's Co.

• Decision Date: 19 November 2001
• Docket Number: No. 00SC372.,00SC372.
• Citation: 36 P.3d 1229
• Parties: ROARING FORK CLUB, L.P., Petitioner, v. ST. JUDE'S COMPANY, Respondent.
• Court: Colorado Supreme Court

36 P.3d 1229

ROARING FORK CLUB, L.P., Petitioner, v. ST. JUDE'S COMPANY, Respondent.

No. 00SC372.

Supreme Court of Colorado, En Banc.

November 19, 2001.

As Modified on Denial of Rehearing December 17, 2001.

Hale Hackstaff, Tymkovich & Erkenbrack, LLP, Timothy M. Tymkovich, Richard A. Westfall, John R. Paddock, Jr., Denver, CO, Patrick, Miller & Kropf, PC, Kevin L. Patrick, Scott C. Miller, Aspen, CO, Attorneys for Petitioner.

Gregory J. Cucarola, Sterling, CO, Attorney for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

I.

In this case we address the unilateral alteration of irrigation ditches. St. Jude's Company (hereinafter Ranch) owns 240 acres of agricultural land near Basalt, Colorado. Roaring Fork Club, L.P., (hereinafter Club) acquired the neighboring, upgradient property adjoining Ranch's in 1995. Previously, the owner of Club's land had used it for agricultural purposes; however, Club developed the property for recreational use by building a private fishing and golf club.

Club and Ranch share an interest in three irrigation ditches that traverse Club's property and serve both properties. Seeking to alter the ditch course in order to accommodate its golf and fishing development, Club attempted to contract with Ranch either to purchase portions of Ranch's easement or to formalize a ditch maintenance arrangement. However, the parties were unable to reach such an agreement. Nevertheless, Club moved forward with construction in and around the ditches.

In 1997 Ranch initiated a trespass action against Club seeking a mandatory and permanent injunction requiring Club to restore the ditches to their original location and course and to remove those improvements that prevented Ranch from maintaining the ditches. The case proceeded before the trial court, acting in equity.

Following three days of trial, the court found that Club had excavated within Ranch's rights-of-way, graded and destroyed ditch banks and portions of ditches, realigned ditch channels, diverted ditch water flows, piped portions of ditches, constructed cabins and golf course greens within the easements, and temporarily piped wastewater into one of the ditches. As a result, the trial court concluded that Club had committed trespass on Ranch's easements. The court also stated that because Ranch sought an equitable remedy, the court was required to balance the equities between the parties in fashioning an appropriate remedy. Weighing the equities, the court found that Club never denied Ranch access to the ditches or denied it the opportunity to maintain the ditches; that Ranch had not suffered any diminution in the quantity of water delivered through the system; and that Ranch had not suffered any increased cost in maintenance of the ditches because of the development. The court also found that Ranch's traditional disposition of spoilage and maintenance of the ditches would be inconsistent with Club's use of its property for recreational purposes. Finally, the court found that requiring Club to restore the ditches to their condition prior to trespass would be extremely costly and would substantially interfere with Club's current and ongoing use of its property.

The trial court concluded that Ranch was entitled to injunctive relief in one of two forms. The court held that Club must either remove all of the developments that reasonably interfered with entry, access, and maintenance of the ditches and restore the original ditches as prayed for by Ranch (the "restoration" option), or Club could assume all responsibility for, and expense of, operation and maintenance of the ditches on its property, and would be permanently obligated to deliver, upon demand, water to Ranch in the amount and quality, and at the time consistent with, Ranch's adjudicated rights (the "maintenance and delivery" option). The trial court clarified in a post-trial order that the right to choose between the alternative remedies imposed by the injunction belonged to Club. Club exercised the maintenance and delivery option, and Ranch appealed the trial court's disposition of the case.

On appeal, a majority of the court of appeals reversed, in part, the injunction formulated by the trial court, holding that the maintenance and delivery option did not comply with Colorado law. St. Jude's Co. v. Roaring Fork Club, L.P., 15 P.3d 281, 285 (Colo.App.1999). Further, the court of appeals held the trial court order unjustifiably rewarded Club, a bad faith actor, for deliberate and conscious trespass. Id.

We granted certiorari to determine two issues. The first issue is whether the court of appeals properly applied Valley Development Co. v. Weeks, 147 Colo. 591, 364 P.2d 730 (1961), and Brown v. Bradbury, 110 Colo. 537, 135 P.2d 1013 (1943), to preempt the trial court's exercise of its equitable discretion; and the second is whether the court of appeals erred by requiring the trial court to award injunctive relief.

We now hold that the owner of property burdened by a ditch easement (hereinafter "burdened estate") may not move or alter that easement unless that owner has the consent of the owner of the easement (hereinafter "benefitted estate"); OR unless that owner first obtains a declaratory determination from a court that the proposed changes will not significantly lessen the utility of the easement, increase the burdens on the owner of the easement, or frustrate the purpose for which the easement was created. We further clarify that the right to inspect, operate, and maintain a ditch easement is a right that cannot be abrogated by alteration or change to the ditch. Therefore, we affirm that portion of the court of appeals' judgment upholding the trial court finding of trespass upon Club's unilateral alteration of the easement. However, we remand this case for further proceedings in light of our interpretation of Colorado case law as set forth in this opinion.

II.

Ditches are important to Colorado. They permit a landscape, economy, and history in which fertile valleys prosper. Without them, properties adjacent to or distant from watercourses wither. Colorado is not a riparian state in which only those lands adjacent to the streams and rivers have rights to waters. Rather, as early as the tenure of the territorial legislature, our lawmakers recognized that our arid climate required the creation of a right to appropriate and convey water across the land of another so that lands not immediately proximate to water could be used and developed. Colorado Territorial Laws 67 § 2 (1861) reprinted in Gregory J. Hobbs, Colorado Water Law: An Historical Overview, 1 U. Denv. Water L.Rev. 1, 31 (1997) ("That when any person, . . . [whose] farm or land, used by him for agricultural purposes, is too far removed from said stream . . ., [that person] shall be entitled to a right of way through the farms or tracts of land which lie between him and said stream . . . ."). By the time of passage of our constitution, that right was embodied in Article XVI, § 7, which provides, "All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands and for mining and manufacturing purposes, and for drainage, upon payment of just compensation." The statute that the first legislative assembly enacted in 1861 has now become section 37-86-102, to wit: "Any person owning a water right or conditional water right shall be entitled to a right-of-way through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use in accordance with said water right or conditional water right." § 37-86-102, 10 C.R.S. (2001).

Because ditches are important, so too are the rights attendant upon a ditch easement. The holder of a ditch easement has the right to inspect, operate, maintain, and repair the ditch. Osborn & Caywood Ditch Co. v. Green, 673 P.2d 380, 383 (Colo.App. 1983) ("[T]he owner of the easement, or dominant estate, may do whatever is reasonably necessary to permit full use and enjoyment of the easement including the exercise of rights of ingress and egress for maintenance, operation, and repair."); see also Yunker v. Nichols, 1 Colo. 551, 555 (1872) ("It may be said, that all lands are held in subordination to the dominant right of others, who must necessarily pass over them to obtain a supply of water to irrigate their own lands . . . .").

The Green decision also directs that, while burdened estate owners have a qualified right to cross, and take equipment across, a benefitted estate owner's ditch, they cannot damage the ditch or unreasonably inhibit the benefitted estate owner's ability to maintain the ditch. Green, 673 P.2d at 383. "The right to maintain a ditch, canal or aqueduct across the lands of another necessarily implies the right to go on such lands for the purpose of cleaning out the waterway and making other proper repairs. . . ." 93 C.J.S. Waters § 130(c)(1) (1956).

Additionally, the Colorado legislature has required "ditch owners" to undertake a host of duties in relation to ditch upkeep. See §§ 37-84-101 to -120, 10 C.R.S. (2001).¹ Many of those statutes permit and even require the benefitted estate owner to have direct access to the entire length of the ditch. Therefore, we approach the issues before us in this case with due regard for the importance of ditches and ditch rights under the law.

III.

The first question we must answer is whether Club had the right to move the ditch that served both its property and Ranch's property, because the answer to that question then shapes any inquiry about appropriate remedy.

A.

Although there are clearly some distinctions, we begin by reviewing the law as it relates to road and other easements. The majority rule in the United States prohibits burdened estate owners...