Public Service Co. of Colorado v. Meadow Island Ditch Co. No. 2

132 P.3d 333, 2006 WL 846365
CourtSupreme Court of Colorado
DecidedApril 3, 2006
DocketNo. 05SA52
StatusPublished
Cited by18 cases

This text of 132 P.3d 333 (Public Service Co. of Colorado v. Meadow Island Ditch Co. No. 2) 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
Public Service Co. of Colorado v. Meadow Island Ditch Co. No. 2, 132 P.3d 333, 2006 WL 846365 (Colo. 2006).

Opinions

MARTINEZ, Justice.

Applicant-Appellant, Public Service Company of Colorado (“PSCo”), appeals a PreTrial Order by the District Court for Water Division No. 1 (“water court”), in which the water court concluded PSCo could not change the use of contractually-delivered water interests without the consent of the ap-propriative owner, Meadow Island Ditch Company No. 2 (“Meadow Island”). Oppo-sers-Appellees, Meadow Island Ditch Company No. 2; Magness Land Holding LLC; Magness Platteville, LLC; Kplatteville, LLC; Dearal Beddo; and' the City and County of Denver, and Appellee, Division Engineer for Water Division No. 1, James Hall, cross-appeal the water court’s Post-Trial Orders concluding that PSCo’s plan for augmentation did not include a contractually-prohibited change in point of diversion. We affirm the water court’s order holding that PSCo may not change the use of the excess water under the controlling contracts. We also affirm the Water court’s judgment approving PSCo’s plan for augmentation on the basis that the contracts do not prohibit PSCo from using its decreed water to augment out-of-priority diversions.

I. Facts and Proceedings

PSCo applied for a Change of water rights and approval of a plan for augmentation on July 31, 2002. PSCo’s application involves water rights associated with its ownership of 18.5 of the 40 outstanding shares, or 46.25 percent, in the Beeman Ditch and Milling Company (“Beeman”). Beeman’s relevant rights, in turn, derive from its interests in Meadow Island’s water rights.

As a result, PSCo’s relevant water rights derive from its relationship with and between Beeman and Meadow Island. Under a 1905 decree, Meadow Island shares a head-gate with Beeman on the South Platte River, where both divert their respective water rights. Water diverted from the river flows through a shared ditch for approximately 250 feet, where a concrete divider allocates water to Meadow Island and Beeman. Meadow Island owns two water rights that total 66.16 cubic feet per second (“c.f.s.”). Its most senior right is Priority No. 12 in the amount of 57.83 c.f.s., with a priority date of May 3, 1866, for irrigation purposes. Meadow Island also owns Priority No. 41 in the amount of 8.33 c.f.s., with a priority date of April 10, 1876, for irrigation purposes.

Meadow Island’s decreed water rights are subject to the terms set forth in two 1925 contracts. In 1925, a dispute arose between Meadow Island and Consolidated Ditches Company of District No. 2 (“Consolidated Ditches”), an organization representing numerous irrigation ditches including the Bee-[336]*336man Ditch, regarding the distribution of water between Meadow Island and Beeman. On. May 18,1925, Consolidated Ditches, in its individual capacity and on behalf of its members,- entered into an agreement to settle the dispute (the “Consolidated/Meadow Island Agreement”). The Consolidated/Meadow Island Agreement limits Meadow Island’s draft of water under its decrees .to 40 c.f.s. and prohibits changing the point of diversion for. Meadow Island water:

NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES and to settle such disputed questions and to avoid litigation between the parties hereto, it is mutually agreed as follows:
1. [Meadow Island] will not, as against [Consolidated Ditches], or by ditches represented by it, claim or directly or indirectly divert from said Platte River or from any of its tributaries, either by itself for by, through or at the instance of any of its stockholders or users, water in excess, of forty (j.0) cubic feet per second, upon, under or by virtue of all or any of its said decreed priorities for any use or purpose whatsoever, when water is demanded by any of the ditches represented by [Consolidated Ditches] on any of their priorities Junior to priority No. 18, nor shall any of said forty (⅛0) second feet of said decreed priorities so diverted by said [Meadow Island] be used upon any land except such as may be irrigated by water diverted at said head-gate under the ditches of this time constructed and used, and it will hot draw, or cause to be drawn, water from said river or its tributaries under its said decreed priorities, except at its present head-gate on said river ....
This agreement shall not in any manner or form be construed as authorizing the delivery of water to said [Meadow Island], to, the amount of forty (40) cubic feet per second, or any less amount, upon said decrees, except as it may be entitled to draw it from said river under its said priority No. 12, nor to in any way interfere with or abridge Senior priorities to water; the intention being to limit its maximum draughts from the river under its decreed priorities aforesaid, to forty (⅛0) cubic feet per second, and to limit its right to call for water under all priorities decreed to it, to an amount not in excess of forty (40) cubic feet per second as against [Consolidated Ditches] and the priorities Junior to said priority No. 12, of all the ditches it represents.
It is not intended by this agreement that said [Meadow Island] shall, or does hereby abandon to the stream generally any of its water or decreed priorities, or any part thereof, but is intended to limit its draft of water from the river under and upon its said priorities and the decree to which reference is above made, to said forty (fO) cubic feet per second as against the ditches, and water rights and priorities Junior to said priority No. 12 of the ditches represented by [Consolidated Ditches], and not otherwise.

(Emphasis added.)

In June 1925, Meadow Island and Beeman entered into an agreement and incorporated the terms of the Consolidated/Meadow Island Agreement (“the Beeman/Meadow Island Agreement”). The Beeman/Meadow Island Agreement specifies that Meadow Island will deliver to Beeman water “not required for immediate use” by Meadow Island:

THIS AGREEMENT, made ... between [MEADOW ISLAND], owner of Meadow Island No. 2 Ditch, party of the first part,' and [BEEMAN], party of the second part, both taking water at a common head-gate from the South Platte River in Water District No. 2, WITNESSETH: that
WHEREAS, the said [Meadow Island] 2, entered into agreement on the eighteenth day of May, A.D.1925, with [Consolidated Ditches] of Water District No. 2, all taking water from the South Platte River in Water District No. 2, in order to settle a dispute as to the proper construction and interpretation to be given to a decree issued by the District Court of Weld County, Colorado, on March 29, 1905, as to the amount of water which [Meadow Island], should be permitted to divert to its head-gate under said decree and the place of use thereof as against Ditches represented by the [Consolidated Ditches], and
[337]*337WHEREAS, [Meadow Island] was conceded the right to divert from said Platte River or from any of its tributaries, either by itself or by, through or at the instances of any of its stockholders or users, water not to exceed forty (⅛0) cubic feet per second, upon, under or by virtue of any or all of its said decreed priorities for any use or purpose whatsoever, when water is demanded by any of the ditches represented by the [Consolidated Ditches] or any of their priorities Junior to priority No. 12, nor shall any of said forty (10) second feet of said decreed priorities so diverted by said no. 2 [Meadow Island]

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Cite This Page — Counsel Stack

Bluebook (online)
132 P.3d 333, 2006 WL 846365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-service-co-of-colorado-v-meadow-island-ditch-co-no-2-colo-2006.