The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY July 3, 2025
2025COA63
No. 24CA0848, Baker v. Safadi-Chamberlain — Water and Irrigation — Rights-of-Way and Ditches — Extent of Right-of- Way
In this dispute over an irrigation ditch, a division of the court
of appeals considers whether section 37-86-103, C.R.S. 2024, gives
the beneficiary of a ditch right-of-way the unfettered right to pipe
the ditch. Relying on the plain language of the statute, the division
concludes that section 37-86-103 provides a right to pipe a ditch
only when doing so would improve the ditch’s efficiency.
Accordingly, the division affirms the district court’s judgment, albeit
on a slightly different ground than that relied on by the district
court. COLORADO COURT OF APPEALS 2025COA63
Court of Appeals No. 24CA0848 Larimer County District Court No. 23CV30216 Honorable Stephen J. Jouard, Judge
Dale Baker,
Plaintiff-Appellant,
v.
Farida Safadi-Chamberlain,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE YUN Tow and Sullivan, JJ., concur
Announced July 3, 2025
Fischer, Brown, Bartlett, Larsen & Irby, P.C., Todd W. Rogers, Whitney Phillips Coulter, Fort Collins, Colorado, for Plaintiff-Appellant
Fischer Law Group, P.C., Erik G. Fischer, Ashleigh Bravo, Fort Collins, Colorado, for Defendant-Appellee ¶1 In Colorado, a person who owns a water right is “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.” § 37-86-102, C.R.S. 2024; see Colo. Const. art. XVI, § 7.
¶2 Section 37-86-103, C.R.S. 2024, sets forth the extent of this
right-of-way. Before 2019, this statute — largely unchanged from a
statute enacted in 1861 — provided that “[s]uch right-of-way shall
extend only to a ditch, dike, cutting, pipeline, or other structure
sufficient for the purpose required.” § 37-86-103, C.R.S. 2018; see
An Act to Protect and Regulate the Irrigation of Lands, sec. 3, 1861
Colo. Terr. Sess. Laws 67. But in 2019 the General Assembly
added new language to the statute, including that “a ditch
right-of-way includes the right to . . . replace the ditch and
appurtenant structures, to improve the efficiency of the ditch,
including by lining or piping the ditch, and to enter onto the
burdened property for such purposes.” § 37-86-103, C.R.S. 2024
(emphasis added); see Ch. 54, sec. 1, § 37-86-103, 2019 Colo. Sess.
Laws 190.
1 ¶3 This case involves the interpretation of the 2019 amendment.
Plaintiff, Dale Baker, filed a declaratory judgment action seeking to
pipe a ditch running across property owned by defendant, Farida
Safadi-Chamberlain, under the amended statute. After a bench
trial, the district court entered judgment in favor of
Safadi-Chamberlain, interpreting the amendment to require that
“piping of the ditch is reasonable and necessary related to the
operation of the ditch.” Baker appeals, contending that the court
misinterpreted the statute by imposing “unnecessary evidentiary
findings.”
¶4 As a matter of first impression, we conclude that the
amendment to section 37-86-103 grants the right to pipe a ditch
only when doing so would improve the ditch’s efficiency. Because
the district court’s factual findings also support the judgment under
this interpretation of the statute, we affirm, albeit on a slightly
different ground than that relied on by the district court.
I. Background
¶5 Baker, Safadi-Chamberlain, and several of their neighbors own
water rights through the North Poudre Irrigation Company. The
water is delivered by a private, unincorporated, lateral, open ditch
2 that runs across Safadi-Chamberlain’s property and eventually,
after crossing three other neighbors’ properties, terminates
downstream on Baker’s property.
¶6 In 2019, the water right owners decided to pipe the portion of
the ditch that runs from North Poudre Irrigation Company’s canal
to just before Safadi-Chamberlain’s property. That portion of the
ditch is shown in a dashed blue line below, while the portion of the
ditch that remained unpiped is shown in a solid red line.
The Ditch After the 2019 Piping Project
3 Safadi-Chamberlain voted in favor of and contributed financially to
the 2019 piping project. Before piping the ditch, it took over five
hours for water released from the irrigation company’s canal to
reach Safadi-Chamberlain’s property; after piping the ditch, it takes
around thirty minutes.
¶7 In 2022, Baker and at least one neighbor1 decided that the
remainder of the ditch should be piped as well. But
Safadi-Chamberlain opposed the idea and refused to allow them to
pipe the portion of the ditch on her property. Baker thus filed suit
in district court, seeking a declaration that he was statutorily
entitled to pipe the segment of the ditch on Safadi-Chamberlain’s
property under section 37-86-103. And, though he did not include
it as a claim for relief in his complaint, Baker argued at trial and
continues to assert on appeal that Safadi-Chamberlain should be
forced to contribute one-fifth of the total cost of piping the ditch.
¶8 The district court held a one-day bench trial. Baker testified
that he wanted to pipe the ditch to “maintain the efficiency” from
1 One neighbor testified at trial in support of piping the remainder
of the ditch. But the positions of the other neighbors are not in the record, as they did not participate in the lawsuit.
4 the 2019 piping project. His expert witness testified that having the
entire ditch piped from the canal to Baker’s property would
generate “five to seven [pounds per square inch]” of pressure,
“which is sufficient enough to drive the water . . . from the pipe up
above ground level for flood irrigation,” thereby avoiding the need to
“operate a pump and set check dams or siphon tubes or various
other means that you use to get[] water out of a pipe.” But leaving
the segment of the ditch on Safadi-Chamberlain’s property unpiped
would “los[e] whatever pressure you might have built in that
pipeline” up to that point. The expert also explained that piping a
ditch generally “improve[s] efficiency for water loss, whether it’s
seepage or evaporation from an open ditch,” and “reduce[s] the
waste that comes out of the end of an open canal.” But he
conceded that he “did not do a seepage and loss study” on the
ditch.
¶9 On the other hand, Safadi-Chamberlain’s expert witness
testified that he tested the ditch and found a “high percent[age] of
clay soil . . . along the ditch from [Safadi-Chamberlain’s] property to
the north all the way to the south.” He explained that this made
any water loss to seepage “negligible.” He concluded that “the
5 amount of water that will be delivered by the pipe . . . probably will
be the same or less” than the amount delivered from the open ditch
and that “[t]here will be no pressure.” Safadi-Chamberlain testified
that the costs associated with piping the ditch would far exceed any
potential benefits; that the valves necessary to access the piped
water would harm the aesthetics of her property; and that piping
the ditch would disrupt her ability to use flood irrigation, which she
believed was the most effective and least labor-intensive method of
irrigating her property.
¶ 10 The district court interpreted section 37-86-103 as requiring
“the court to determine whether the right-of-way is sufficient for the
purposes required of the ditch” and whether “piping of the ditch is
reasonable and necessary related to the operation of the ditch.”
Based on this interpretation, the court found that “the open lateral
ditch is sufficient to meet the needs for delivery of the water right[s]
to the parties’ respective properties” and that “piping of the
remaining portion of the lateral ditch is not reasonable and
necessary and would not make any appreciable improvement in the
amount or quality of the water actually delivered either to the Baker
6 or Safadi-Chamberlain properties.” Accordingly, the court entered
judgment in favor of Safadi-Chamberlain.
II. Analysis
¶ 11 Baker explicitly disavows challenging the district court’s
factual findings. Instead, he contends that the court misinterpreted
section 37-86-103 and imposed “unnecessary evidentiary findings.”
From this, we understand his argument to be that the amendment
to section 37-86-103 granted him an unfettered right to pipe the
ditch. We disagree.
A. Standard of Review and Governing Statute
¶ 12 “We review a judgment following a bench trial as a mixed
question of fact and law.” Premier Members Fed. Credit Union v.
Block, 2013 COA 128, ¶ 27. “It is the province of the trial court to
assess the reliability of the evidence and credibility of witnesses,”
Lawry v. Palm, 192 P.3d 550, 560 (Colo. App. 2008), and we will
disturb the court’s factual findings “only if they are clearly
erroneous and not supported by the record,” id. at 558. But “we
review the court’s conclusions of law de novo.” Premier Members,
¶ 27.
7 ¶ 13 We also review a district court’s interpretation of a statute de
novo. Bodelson v. City of Littleton, 36 P.3d 214, 216 (Colo. App.
2001). In interpreting a statute, our primary purpose is to give
effect to the General Assembly’s intent. People v. Diaz, 2015 CO 28,
¶ 12. “We construe the statute as a whole, in an effort to give
consistent, harmonious, and sensible effect to all its parts, and we
read the words and phrases in context and construe them
according to the rules of grammar and common usage.” Id. We
avoid interpretations that would render any words or phrases
superfluous. Dep’t of Revenue v. Agilent Techs., Inc., 2019 CO 41,
¶ 16. If the statute’s language is clear, we must apply it as written
and need look no further. Oakwood Holdings, LLC v. Mortg. Invs.
Enters. LLC, 2018 CO 12, ¶ 12.
¶ 14 Section 37-86-103, in its entirety, provides as follows:
[A water] right-of-way shall extend only to a ditch, dike, cutting, pipeline, or other structure sufficient for the purpose required. Unless inconsistent with the terms upon which the right-of-way was created, and not to be construed as a limit on any other rights in a ditch or ditch right-of-way that have been created or arisen by law, a ditch right-of-way includes the right to construct, operate, clean, maintain, repair, and replace the ditch and appurtenant structures, to improve the
8 efficiency of the ditch, including by lining or piping the ditch, and to enter onto the burdened property for such purposes, with access to the ditch and ditch banks, as the exigencies then existing may require, for all reasonable and necessary purposes related to the ditch.
The 2019 amendment added the second sentence to the statute.
See 2019 Colo. Sess. Laws at 190.
B. Section 37-86-103 Grants the Right to Pipe a Ditch Only if Doing So Improves Its Efficiency
¶ 15 Baker interprets section 37-86-103 as granting the
beneficiaries of a ditch right-of-way an unfettered right to pipe the
ditch. To reach this conclusion, he interprets the qualifying clause
“for all reasonable and necessary purposes related to the ditch” as
limiting only the right of entry onto the burdened property. He thus
reads the statute as conferring the following three separate rights:
(1) “to construct, operate, clean, maintain, repair, and
replace the ditch and appurtenant structures”;
(2) “to improve the efficiency of the ditch, including by lining
or piping the ditch”; and
(3) “to enter onto the burdened property for such purposes,
with access to the ditch and ditch banks, as the
9 exigencies then existing may require, for all reasonable
and necessary purposes related to the ditch.”
§ 37-86-103 (emphasis added).
¶ 16 However, the district court interpreted section 37-86-103 as
requiring determinations that “the right-of-way is sufficient for the
purposes required of the ditch” and “that the piping of the ditch is
reasonable and necessary related to the operation of the ditch.” We
rely on a different part of the statute — specifically, the clause
describing the second right listed above — to conclude that the
statute does not grant an unfettered right to pipe a ditch.
Accordingly, we affirm on a different ground. See Taylor v. Taylor,
2016 COA 100, ¶ 31 (appellate court may affirm on any basis
supported by the record).
¶ 17 We begin by examining the second clause — the right “to
improve the efficiency of the ditch, including by lining or piping the
ditch” — as it is the only clause that references the right to pipe a
ditch. But this clause is limited by its own terms to actions that
improve the efficiency of the ditch. Thus, it does not grant an
unfettered right to pipe a ditch.
10 ¶ 18 The first clause — the right “to construct, operate, clean,
maintain, repair, and replace the ditch and appurtenant
structures” — does not reference the right to pipe the ditch.
However, to the extent that Baker argues the phrase “to . . . replace
the ditch and appurtenant structures” includes an unfettered right
to pipe the ditch, we conclude that such an interpretation of the
statute is unreasonable.
¶ 19 “The commonly understood meaning of ‘replace’ is to supplant
something with an equivalent or substitute.” Mid-Century Ins.
Co. v. Robles, 271 P.3d 592, 596 (Colo. App. 2011) (citing Allstate
Ins. Co. v. Parfrey, 830 P.2d 905, 912 (Colo. 1992)); see also
Merriam-Webster Dictionary, https://perma.cc/GP2V-MQAZ
(defining “replace” as “to take the place of especially as a substitute
or successor” and “to put something new in the place of”). Read
alone, “replacing” a ditch could be construed to include piping it.
But we do not read terms in isolation; instead, we “construe the
statute as a whole, in an effort to give consistent, harmonious, and
sensible effect to all its parts, and we read the words and phrases in
context.” Diaz, ¶ 12; § 2-4-101, C.R.S. 2024. For two reasons, we
11 conclude that the General Assembly did not intend to use “replace”
so broadly.
¶ 20 First, construing the word “replace” to allow piping the ditch
would give the word a meaning unrelated to that of the surrounding
terms. See Coloradans for a Better Future v. Campaign Integrity
Watchdog, 2018 CO 6, ¶ 37 (“It is a familiar principle of statutory
construction that words grouped in a list should be given related
meaning.” (quoting Third Nat’l Bank in Nashville v. Impac Ltd., Inc.,
432 U.S. 312, 322 & n.16 (1977))). “Replace” is immediately
preceded by the terms “clean,” “maintain,” and “repair.” Each of
these words connotes an effort to, as much as possible, keep the
ditch in, or restore the ditch to, its original condition; none of them
suggest fundamentally altering the ditch itself. See
Merriam-Webster Dictionary, https://perma.cc/YTP6-Z4NY
(defining “clean” as “to rid of dirt, impurities, or extraneous
matter”); Merriam-Webster Dictionary, https://perma.cc/529N-
NMY6 (defining “maintain” as “to keep in an existing state (as of
repair, efficiency, or validity)” or “preserve from failure or decline”)
(emphases added); Merriam-Webster Dictionary,
https://perma.cc/8TKT-UBEG (defining “repair” as “to restore by
12 replacing a part or putting together what is torn or broken” or “fix”)
(emphasis added). Viewed in this context, the term “replace” is best
read narrowly to have a similar meaning — supplanting an existing
ditch with a new ditch. See Robles, 271 P.3d at 596; cf. Coloradans
for a Better Future, ¶¶ 35-38 (construing the term “gift” narrowly to
mean a monetary gift based, in part, on its inclusion among words
that refer to money).
¶ 21 Second, and more importantly, if we were to construe the term
“replace” broadly enough to include piping a ditch, it would render
the second clause — the right “to improve the efficiency of the ditch,
including by . . . piping the ditch” — superfluous. § 37-86-103.
That clause explicitly mentions piping the ditch and allows doing so
only when it would improve the efficiency of the ditch. If we were to
interpret the term “replace” in the first clause to include piping, it
would allow a beneficiary of the ditch right-of-way to pipe the ditch
for any reason, rendering the second clause meaningless. We will
not adopt such a construction. See Agilent Techs., Inc., ¶ 16;
Coloradans for a Better Future, ¶ 39; People v. Lente, 2017 CO 74,
¶ 21 (“Were we to construe one term to swallow the other, or to be
13 its equal, then the other term would be superfluous. We avoid such
constructions.”).
¶ 22 In sum, nothing in the plain language of section 37-86-103
grants the beneficiary of a ditch right-of-way the unfettered right to
pipe the ditch; they must show that piping would improve the
efficiency of the ditch.
C. Application
¶ 23 The district court found that the “evidence did not establish
that piping of the remaining open ditch to the Baker property would
increase the efficiency or materially impact delivery of water to the
properties.” Though Baker disagrees with this finding, he does not
contest it on appeal. In any event, the record supports the finding:
• Baker’s expert witness conceded that he did not measure
how much water the ditch loses to seepage or
evaporation, did not do any soil testing, and did not have
any estimates about how much additional water would
be available to Baker if the ditch was piped.
• Safadi-Chamberlain’s expert witness testified that, due to
the “high percent[age] of clay soil” in the ditch, any water
loss to seepage was “negligible.” He also explained that
14 the twelve-inch pipes Baker planned on installing would
be “very small compar[ed] to the size of the ditch” and
that the “area of water flowing” through the pipe “will be
a lot less than [twelve]-inch[es]” because of air, sediment,
and other debris. Therefore, he concluded that “the
amount of water that will be delivered by the pipe . . .
probably will be the same or less” and that piping the
ditch would not create any pressure.
¶ 24 We will not disturb the district court’s factual findings unless
“they are clearly erroneous and not supported by the record.”
Lawry, 192 P.3d at 558. Because the record supports the district
court’s finding that piping the ditch would not improve its
efficiency, we conclude that the district court correctly entered
III. Appellate Attorney Fees
¶ 25 Safadi-Chamberlain requests her appellate attorney fees under
C.A.R. 38(b) on the grounds that Baker’s appeal was frivolous. An
appeal may be frivolous as filed or as argued. Calvert v. Mayberry,
2019 CO 23, ¶ 45. An appeal “is frivolous as filed when there are
no legitimately appealable issues because the judgment below ‘was
15 so plainly correct and the legal authority contrary to the appellant’s
position so clear.’” Id. (quoting Castillo v. Koppes-Conway, 148 P.3d
289, 292 (Colo. App. 2006)). If there are legitimately appealable
issues, then “an appeal may still be frivolous as argued if the
appellant ‘fail[s] to set forth . . . a coherent assertion of error,
supported by legal authority.’” Id. (quoting Castillo, 148 P.3d at
292).
¶ 26 Though we have ruled against Baker, we do not view his
appeal as frivolous, either as filed or as argued, such that a fee
award is appropriate, so we deny the request. See Mission Denver
Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984) (“Standards for
determining whether an appeal is frivolous should be directed
toward penalizing egregious conduct without deterring a lawyer
from vigorously asserting his client’s rights.”); see also In re
Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be awarded
only in clear and unequivocal cases . . . .”), aff’d, 2019 CO 81.
IV. Disposition
¶ 27 The judgment is affirmed.
JUDGE TOW and JUDGE SULLIVAN concur.