Southeastern Colorado Water Conservancy Dist. v. O'Neill

• Citation: 817 P.2d 500
• Decision Date: 16 September 1991
• Docket Number: No. 2 and P,No. 90SA332,2 and P,90SA332
• Parties: SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT, Complainant-Appellee, and Cache Creek Mining Trust, Board of Water Works of Pueblo, Colorado, Twin Lakes Reservoir and Canal Company, City of Colorado Springs, City of Aurora, United States of America, State Engineer, Jeris A. Danielson, and the Division Engineer for Water Divisionarkville Water District, Respondents-Appellees, v. Dennis O'NEILL, Respondent-Appellant.
• Court: Supreme Court of Colorado

Page 500

817 P.2d 500

SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT, Complainant-Appellee and Cache Creek Mining Trust, Board of Water Works of Pueblo Colorado, Twin Lakes Reservoir and Canal Company, City of Colorado Springs, City of Aurora, United States of America State Engineer, Jeris A. Danielson, and the Division Engineer for Water Division No. 2 and Parkville Water District, Respondents-Appellees, v. Dennis O'NEILL, Respondent-Appellant.

No. 90SA332.

Supreme Court of Colorado En Banc.

Sept. 16, 1991.

Rehearing Denied Oct. 21, 1991.

Fairfield and Woods, P.C., Howard Holme, Stephen H. Leonhardt, Denver, for complainant-appellee.

Peterson & Fonda, William F. Mattoon, Pueblo, for Bd. of Water Works of Pueblo.

Carlson, Hammond & Paddock, John U. Carlson, Tod J. Smith, Lee H. Johnson, Denver, for Twin Lakes Reservoir and Canal Co., and Sp. Counsel to Bd. of Water Works of Pueblo.

Anderson, Johnson & Gianunzio, Gregory L. Johnson, Colorado Springs, for City of Colorado Springs.

Petrock, Fendel & Dingess, P.C. John M. Dingess, Denver, for City of Aurora.

Michael J. Norton, U.S. Atty., John R. Hill, Jr., U.S. Dept. of Justice, Environment and Natural Resources Div., Denver, for U.S.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Patrick E. Kowaleski, Asst. Atty. Gen., Denver, for State Engineer and Div. Engineer for Water Div. No. 2.

Cosgriff, Dunn & Berry, P.C., Peter Cosgriff, Leadville, for Parkville Water Dist.

Dennis O'Neill, pro se.

John W. Dunn, County Atty., for amicus curiae Bd. of County Com'rs of Lake County.

Justice QUINN delivered the Opinion of the Court.

This case is a sequel to our decision in Southeastern Colorado Water Conservancy District v. Twin Lakes Associates, Inc., 770 P.2d 1231 (Colo.1989). In that decision we affirmed a judgment of the water court which determined that six water rights decreed in 1912 to three ditches had been abandoned, and which canceled the water rights and permanently enjoined any future diversions from the three ditches based on the canceled water rights. Following our decision, Dennis O'Neill, the President and Chair of the Board of Directors and principal owner of Twin Lakes Associates, Inc. (hereinafter collectively referred to as O'Neill), filed a C.R.C.P. 60(b)(5) motion in the water court seeking relief from that part of the judgment which determined the water rights on the Cache Creek Ditch, one of the three ditches involved in the prior litigation, to have been abandoned. ¹ O'Neill's motion alleged that newly discovered evidence demonstrated the continued use of the Cache Creek Ditch water rights and that, therefore, evidence of nonuse on which the water court relied in the prior litigation was insufficient to support the prior determination of abandonment. The water court denied the motion and O'Neill has appealed to this court. ² We affirm the judgment.

I.

To place the issue before us in proper perspective, a review of the procedural history of this case relative to O'Neill's claim to water rights on the Cache Creek Ditch is necessary. O'Neill claimed ownership to six water rights, originally decreed in 1912 to the Clear Creek, Arlington, and Cache Creek Ditches, located in Lake and Chaffee Counties, for use in placer goldmining activity by O'Neill's predecessor in interest, Twin Lakes Placers, Ltd. (Twin Lakes Placers). On May 22, 1985, the Southeastern Colorado Water Conservancy District filed a complaint for a determination of abandonment with respect to O'Neill's six water rights. The water court conducted a seven-day trial on the abandonment issue in 1986 and 1987. The evidence admitted during the trial established that Cache Creek Ditch basically was a man-made ditch that diverted water from Cache Creek and Clear Creek, which are natural streams tributary to the Arkansas River. Cache Creek Ditch extended approximately eight to nine miles through portions of Chaffee and Lake Counties and conveyed water eastwardly along a route south of Twin Lakes and then into the Cache Creek Basin. On March 18, 1912, two water rights totalling forty cubic feet per second were decreed to the Cache Creek Ditch for use by Twin Lakes Placers in its placer gold-mining operations. Shortly thereafter, however, on June 24, 1912, the District Court of Fremont County enjoined Twin Lakes Placers from any mining activity that might result in discharging tailings or debris into the Arkansas River. Following the injunctive proceeding, Twin Lakes Placers ceased its gold-mining activities, and its mining properties were eventually conveyed to other owners by treasurer deeds. The ditches and flumes previously used in Twin Lakes Placers' mining activity fell into disrepair and became unusable.

During the years subsequent to the cessation of Twin Lakes Placers' mining activity, parts of Cache Creek Ditch were washed out and other parts were filled in by dirt and debris. Although some miners, including trespassers, used the natural drainage of Cache Creek for small scale mining purposes, there was no evidence offered in the abandonment trial demonstrating that such use was under any claim of right to the previously decreed water rights in the Cache Creek Ditch or that such use was with the permission of any owner of the water rights. O'Neill submitted much documentary evidence at the 1986-87 abandonment trial, but his evidence contained significant omissions with respect to the chain of title for the water rights at issue.

At the conclusion of the trial on the abandonment issue, the water court ruled as follows with respect to the Cache Creek Ditch water rights: that subsequent to the 1912 injunction Twin Lakes Placers intended to and did discontinue the use of all water available under the 1912 decree for the Cache Creek Ditch; that subsequent to 1912 some miners, including trespassers, may have sporadically used water from the natural drainage of Cache Creek for small scale mining but such use was not under any claim of right to the water rights or with the permission of any owner of the water rights; that the extremely deteriorated condition of the ditches, often to the point of non-existence, was so overwhelming that the demonstration of paper activity and sporadic small scale mining fell "short of showing a continued use of the subject water rights after the 1912 injunction"; and that O'Neill made a damaging admission against interest when in 1979 he told a placer-mine appraiser that any water rights conveyed with the placer mine, including the Cache Creek Ditch water rights, were of no value. The water court accordingly ruled that the water rights decreed in 1912 to the Cache Creek Ditch had been abandoned. ³ In affirming the decision of the water court, we acknowledged that there was some evidence of sporadic use of Cache Creek water since 1912 but that the use, as expressly found by the water court, "was by no means continuous and ... was not supported by evidence showing that such use was 'under any claim of right to the subject water rights or with the permission of any owner through whom [Twin Lakes Associates and O'Neill] claim.' " Twin Lakes Associates, 770 P.2d at 1241.

Approximately one year after our decision in Twin Lakes Associates, O'Neill filed a C.R.C.P. 60(b)(5) motion in which he alleged that newly discovered evidence entitled him to relief from that part of the judgment pertaining to the abandonment of the water rights decreed to the Cache Creek Ditch in 1912. O'Neill supported his motion by various articles describing the history of gold mining in the area and numerous deeds and other documents, many of which were admitted at the prior trial, four affidavits of potential witnesses, and a lengthy legal memorandum. Several of O'Neill's evidentiary offers consisted of excerpts from the annual publication of the United States Geological Survey, Mineral Resources of the United States (Mineral Resources Yearbook), for various years between 1912 and 1948. The following excerpts are representative of O'Neill's evidentiary offer:

Granite district.--The Twin Lakes Placer Co., with ancient river bed placer ground on Cache Creek, prior to 1911 an important producer of placer gold by hydraulicking, having been enjoined in 1911 from polluting the water of Arkansas River, has confined its operations to shoveling gravel into sluice boxes. (1913 Mineral Resources Yearbook).

Granite district.--The ancient river bed placer ground on Cache Creek ... was sluiced, in a small way by various operators. A small shipment of lead ore, carrying gold and silver, was made from the Margaret mine. (1914 Mineral Resources Yearbook).

Four Mile district.--A small quantity of placer gold was recovered from sluicing operations in the Granite district. The placer ground on Cache Creek was an important producer of placer gold by hydraulicking prior to 1911, but the operations were stopped in that year because of the pollution of the water of Arkansas River, which affected the water supply of the towns of Canon City and Pueblo. Small lots of ore were shipped from the Margaret and Yankee Blade mines. (1915 Mineral Resources Yearbook).

Granite district.--A small quantity of placer gold was sluiced from gravels along Arkansas River. (1917 Mineral Resources Yearbook).

Granite district.--A small sluicing operation on the bench gravels of the Arkansas River, near Granite, recovered 5.81 ounces of gold. During the summer and fall of 1927 a suction dredge boat was in course of construction on the west side of the Arkansas River, below Granite. The plan is to float the boat in the river and to draw up the fine river gravel and silt, which will be treated on the boat. The site is just below the bench gravels on Cache Creek, from which $1,500,000 to $3,500,000 in placer gold was recovered by sluicing and hydraulicking from 1859 to 1911, when the work was stopped by court injunction at the request of the cities of...