East Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co.

109 P.3d 969, 2005 Colo. LEXIS 230, 2005 WL 638406
CourtSupreme Court of Colorado
DecidedMarch 21, 2005
DocketNo. 03SA372
StatusPublished
Cited by74 cases

This text of 109 P.3d 969 (East Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
East Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co., 109 P.3d 969, 2005 Colo. LEXIS 230, 2005 WL 638406 (Colo. 2005).

Opinions

KOURLIS, Justice.

This is a water case in which East Ridge of Fort Collins, LLC filed a Complaint for Declaratory Judgment against the Larimer and Weld Irrigation Company (“Irrigation Company”), a mutual ditch company. In the Complaint, East Ridge averred that it was the owner of certain real estate and, as such, successor in interest to the rights and privileges conferred by two contracts: one entered into between Benjamin H. Eaton and Clara A. McGinley and another entered into between Eaton and Zur C. Plummer, dated April 1878 (collectively referred to as “the Contracts”). East Ridge sought a declaration from the court that its interest in water delivered to the real property pursuant to the two Contracts was not perpetually restricted to irrigation of the property, but rather was a water right capable of being [971]*971changed in point of diversion and place and type of use. The Irrigation Company countered that the Contracts did provide for the delivery of water, but did not establish water rights in East Ridge that could be changed.

The matter proceeded to trial before the Water Court in September of 2003, and the court entered its Order on October 30, 2003, declaring that the nature and extent of East Ridge’s right to water under the Contracts was limited to the terms of the contract— namely, the right to divert water from the Larimer and Weld Ditch at a specified location to irrigate the eighty acres of land identified in the Contracts — and did not include the right to change the delivery of the water absent the consent of the Irrigation Company.

East Ridge appealed to this court, stating six issues for our review.1 We now conclude that East Ridge does not own water rights in any traditional sense; rather, East Ridge owns contractual water delivery rights. Thus, we must look to the contracts themselves to answer any questions concerning the nature of those delivery rights. The contracts are ambiguous. Thus, we look to extrinsic evidence. That extrinsic evidence reflects various facts: (1) the water rights originally held by East Ridge’s predecessors were made a part of the Irrigation Company’s decree in consideration of the Contracts; (2) East Ridge’s predecessors did not receive shares in the Irrigation Company; (3) the minutes of the Irrigation Company’s shareholder meeting reflect an intent to restrict the contractual delivery rights to the land owned by the grantors; and (4) a weighing of the benefits of the bargain supports the con-elusion that the preferred rights were tied to the property and use specified. Thus, when we look at all surrounding circumstances, we determine that the Contracts created restrictive rights to receive a certain amount of water for the purpose of irrigating identified lands. The restrictive delivery rights cannot, therefore, support a change of use and change of place of diversion proceeding. Accordingly, we affirm the Water Court.

I. FACTS

In approximately 1864, several individuals dug a ditch from the Cache la Poudre River to their lands, for the purpose of diverting irrigation water. This ditch was called the No. 10 Ditch, and the Irrigating Ditch Company No. 10 was incorporated in 1873. The Certificate of Incorporation states that “the use for which the said water is intended is for irrigation and no other.” Eventually, the No. 10 irrigated 17 properties.

In the 1870s, Benjamin H. Eaton conceived the plan of building a large irrigation system. He wished to acquire the diversion structures and ditch of the No. 10. Eaton made a proposal to each of the shareholders and, in 1878, acquired the interests of every shareholder. By deed of March 12, 1879, the Irrigating Ditch Company No. 10 itself conveyed all of its rights, title and interest in itself, including “all appurtenances of said ditch, together with all privileges, franchises and rights acquired by reason of its incorporation and association” to Eaton. The contracts with the individual shareholders include the two contracts at issue in this case.

[972]*972Pursuant to those contracts, the shareholders in the old No. 10 transferred all of their right, title and interest in the irrigation ditch to Benjamin H. Eaton. Each of the contracts provided as follows: that the owner

shall have the right and privilege and the said right and privilege is hereby granted unto the said [owner] to take from said Irrigating Ditch No. 10 at the place where the lower portion of said ditch as now constructed intersects with a new survey made by said Benjamin H. Eaton, a sufficient quantity of water to irrigate eighty acres of land and no more. The right to Frigate the said eighty acres of land from said ditch shall be perpetual and without expense to the said [owner] in maintaining said ditch.

The contract language provided, in addition, that each grantor was conveying “all the right, title and interest which I have in and to any share, shares, parts of shares or privilege or any surplus credit-for and on account of any work and labor performed on account of the same in the Frigating ditch known as Irrigating Ditch Company Number ten (10).” The remedy clause provided that:

It is further agreed by the said Benjamin H. Eaton that in case he should fail to keep sáid ditch in repaF so that there should not be a sufficient supply of water in said ditch to irrigate said eighty acres of land then the said Benjamin H. Eaton shall forfeit his right by virtue of such sale above made after due notice of such failure and neglect on his part (and further failure and neglect after said notice) to perform his agreement as aforesaid.

Easements for the ditch were the subject of separate deeds.

Eaton and the Larimer and Weld Irrigation Company then sought adjudication of the water rights on the Cache La Poudre River. The Water Court, in its Decree dated April 11, 1882, awarded 3 cfs with an appropriation date of June 1, 1864, to the Irrigation Company, and awarded an additional 718.47 cfs with varying later appropriation dates. All of the water decreed was to be diverted through a diversion structure located at the original headgate of the No. 10 Ditch, and carried in the original No. 10 Ditch and, in addition, all of the rights were adjudicated either to Eaton individually (which he later conveyed to the Irrigation Company) or to the Irrigation Company.

The relationship between the original owners of the No. 10 Ditch and the Irrigation Company has not been without its bumps in the 125 year’s since that time. For example, the parties became involved in litigation in 1893 before this court on the question of estimated capacity of the company’s canal to furnish water. See Wyatt v. Larimer & Weld Irr. Co., 18 Colo. 298, 33 P. 144 (1893). From Wyatt, we gain some historical perspective. Specifically, the court noted that “in 1879, upon the acquisition of canal No. 10, the company entered into contracts with the persons who had acquFed vested appropriations by vFtue of user of [sic] water therefrom, expressly recognizing and confFming theF rights to the continued use of water from defendant’s canal, in the aggregate of 29¾ 80-acre water rights, and allowing the owners of such rights to divert the full quota of water appertaining thereof, and without pro-rating with other owners of water rights in the canal in times of scarcity.” Id. at 298, 33 P. at 146. The second time that case came to this court, in 1897, the court again referred to the No. 10 water as the “29 3/4 preferred water rights.” Larimer & Weld Irr. Co. v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
109 P.3d 969, 2005 Colo. LEXIS 230, 2005 WL 638406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/east-ridge-of-fort-collins-llc-v-larimer-weld-irrigation-co-colo-2005.