Farmers Reservoir & Irrigation Co. v. Consolidated Mutual Water Co.

33 P.3d 799, 2001 Colo. J. C.A.R. 4875, 2001 Colo. LEXIS 879, 2001 WL 1218751
CourtSupreme Court of Colorado
DecidedOctober 15, 2001
DocketNo. 00SA229
StatusPublished
Cited by34 cases

This text of 33 P.3d 799 (Farmers Reservoir & Irrigation Co. v. Consolidated Mutual Water 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
Farmers Reservoir & Irrigation Co. v. Consolidated Mutual Water Co., 33 P.3d 799, 2001 Colo. J. C.A.R. 4875, 2001 Colo. LEXIS 879, 2001 WL 1218751 (Colo. 2001).

Opinion

Justice HOBBS

delivered the Opinion of the Court.

This appeal is from the order of the District Court for Water Division No. 1 (Water Court) denying the petition of Farmers Reservoir and Irrigation Company; Farmers High Line Canal and Reservoir Company; and the cities of Westminster, Arvada, and Thornton (Opposers) seeking to invoke the retained jurisdiction provision of a change of water rights decree or, in the alternative, to extend the period of retained jurisdiction.1 We hold that the Water Court did not err in refusing to invoke the retained jurisdiction provision of the judgment and decree in this case or, alternatively, to extend the period of retained jurisdiction. The historic consumptive use determinations the Water Court made in this case may not be reviewed under the retained jurisdiction provision.

I.

This case involves. two important but potentially conflicting purposes of the General Assembly in adopting section 837-92-804(6) governing judgments and decrees in change of water right and plan for augmentation cases: (1) the finality of Water Court determinations of historic beneficial consumptive use; and (2) the exercise of the retained jurisdiction provision to address injury to other water rights that results from placing the change of water right or augmentation plan into operation.

The Water Court's 1993 judgment and decree in this case adjudicated a change of water rights to Consolidated Mutual Water Company (Consolidated Mutual) for its ownership interest in rights to water historically utilized under the Lee, Stewart & Eskins Ditch (LSE Ditch), which diverts from Clear Creek under five different priorities. In the case now before us, Golden appeared to oppose Consolidated Mutual's application. The Water Court found that to allocate Consolidated Mutual's share of consumptive use, it had to determine an allocation for the City of Golden's share of consumptive use for two transfers it made of Priority 12 water from the LSE Ditch to the Church Ditch in the 1960s (Golden's 60s transfers). In doing so, it allocated 287 acre-feet annually to Golden's 60s transfers out of a total ditch-wide annual historic consumptive use of 1,144 acre-feet. In making these determinations, the Water Court relied on the testimony of Golden's expert, Gary Thompson. We adhere to our discussion in Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189, 195 (Colo.1999) regarding Thompson's consumptive use calculations and the Water Court's reliance on them:

The water court stated that, "in figuring out [Con Mutual's entitlement to Priority 12 water], we have to figure out what Golden got" as a result of the 60s change proceedings. In furtherance of this goal, Golden's expert water engineer, Gary Thompson, prepared a table demonstrating the historical consumptive use of Priority 12 water. In doing so, Thompson relied on the notebooks and calculations that W.W. Wheeler had prepared for the 1960s proceedings. This table fixed the average total annual consumptive use of Priority 12 water at 411 acre-feet. Thompson testified that Con Mutual's share of Priority 12 water could be calculated by subtracting the acrefootage of water transferred to Golden in the 60s proceedings. Based on his calculations, Thompson concluded that Con Mutual was entitled to consume an average of 124 acre-feet of water per year. By implication, Thompson's analysis fixed Golden's share of Priority 12 at an average of 287 acre-feet per year, ie., 411 acre-feet minus 124 acre-feet. Thompson has subsequently reiterated that his calculations in the Con Mutual case were computed by taking the total amount of historical consumptive use attributable to Priority 12 and "subtract{ing] what Golden's share was."
In the 1993 litigation, the water court agreed with Thompson's calculations and [803]*803held that a volumetric limitation on Con Mutual's decree was necessary in order to prevent injury to Golden and other users. In its corresponding order, the court adopted the calculations presented by Thompson in his testimony.

Farmers High Line Canal & Reservoir Co., 975 P.2d at 195 (footnote omitted).

Invoking the doctrine of issue preclusion, Opposers sought in Farmers High Line Canal & Reservoir Co. to impose upon Golden's 60s decrees, by way of limitation, the volumetric allocation the Water Court adopted in the case before us based on Thompson's calculations. Due to claim preclusion, we refused to imply such a volumetric limitation into Golden's 60s decrees. See Farmers High Line Canal & Reservoir Co., 975 P.2d at 201-02.

Because both of these cases involve priorities historically utilized under the LSE Ditch, we briefly summarize the status of those appropriations and the litigation concerning them.

On October 4, 1884, the District Court of Arapahoe County adjudicated Clear Creek water rights with an appropriation date of May 13, 1861, for diversion of 9.9 cif.s. by means of the Claus and Couch Ditech (Priority 12 Water Rights). By decree of June 10, 1908, successors in interest to a portion of the Priority 12 water then transferred 8.6 cef.s. from the Claus and Couch Ditch to the LSE Ditch, Priority 12 water was applied to lands of Priority 12 owners and other lands irrigated by means of the LSE Ditch. The LSE Ditch also diverted water under four other priorities on Clear Creek designated in prior adjudications as Priority Numbers 27, 51, 58, and 56 (LSE Junior Rights).2 The LSE Ditch diverts water at a point on the south bank of Clear Creek on what is now Coors Brewing Company property in Golden. The LSE Ditch historically irrigated 891 acres of land.

Consolidated Mutual is a non-profit corporation providing domestic and municipal water service in the northwest Denver metropolitan area. Its service area comprises approximately twenty-seven and one-quarter square miles divided into two major water supply areas. The western supply area is served by water from the LSE Ditch, and the eastern portion by water supplied by the Denver Water Department. In the 1960s, Consolidated Mutual obtained 2.5855 cf.s. of the 8.6 ef.s. Priority 12 water that was being diverted through the LSE Ditch. It also obtained 41% of the LSE Junior Rights. Consolidated Mutual did not apply for a change from irrigation use until 1991, although it began to use the water for domestic and municipal purposes in the 1960s.

In 1991, Farmers Reservoir and Irrigation Company filed a complaint in the Water Court alleging that Consolidated Mutual had expanded its use of Priority 12 Water Rights by impermissibly making winter diversions. The Water Court dismissed the complaint, but required Consolidated Mutual to file an application for change of its water rights. Consolidated Mutual filed a change application with the Water Court on August 29, 1991 for its share of the five priorities.

After hearing several expert witnesses and considering the documentary exhibits, the Water Court adopted Thompson's analysis. Thompson assigned an allocation of 287 acre-feet annually from the ditch-wide consumptive use total to Golden's 60s transfers. He testified that this amount was consistent with the consumptive use allocations that Golden's expert, W.W. Wheeler, had assumed for Golden's 60s transfers at the time they were decreed.

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33 P.3d 799, 2001 Colo. J. C.A.R. 4875, 2001 Colo. LEXIS 879, 2001 WL 1218751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-reservoir-irrigation-co-v-consolidated-mutual-water-co-colo-2001.