Santa Fe Trail Ranches Property Owners Ass'n v. Simpson

990 P.2d 46, 2000 Colo. J. C.A.R. 6409, 1999 Colo. LEXIS 1199, 1999 WL 1095475
CourtSupreme Court of Colorado
DecidedDecember 6, 1999
DocketNo. 99SA91
StatusPublished
Cited by56 cases

This text of 990 P.2d 46 (Santa Fe Trail Ranches Property Owners Ass'n v. Simpson) 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
Santa Fe Trail Ranches Property Owners Ass'n v. Simpson, 990 P.2d 46, 2000 Colo. J. C.A.R. 6409, 1999 Colo. LEXIS 1199, 1999 WL 1095475 (Colo. 1999).

Opinion

Justice HOBBS

delivered the Opinion of the Court

This appeal is from a judgment of the District Court for Water Division No. 2 (Water Court) dismissing an application for change of use of two water rights. Appellant Santa Fe Trail Ranches Property Owners Association (Santa Fe Ranches) raises a single issue for review:

Whether diversions made pursuant to a decreed water right, although not used for decreed uses, may be considered as establishing historical use for the purpose of a change of water right proceeding, if the Water Commissioner was aware of the diversions and did not order their discontinuance or curtailment.

The Water Court answered this question as follows:

Diversions made pursuant to a decreed water right, when not used for decreed uses, may not be considered as establishing historical use for the purpose of a change of water right proceeding, regardless of whether the water commissioner was aware of such diversions and did not order their discontinuance or curtailment.

We affirm the Water Court’s judgment dismissing the application.

I.

Santa Fe Ranches sought to change the use of two water rights appropriated by the Colorado Fuel and Iron Company (CF & I): (1) the Antonio Lopez at El Moro right for 0.25 c.f.s. decreed for manufacturing use, [50]*50with an appropriation date of November 1, 1861, adjudicated with Priority No. 2 on August 10, 1903, in the original adjudication for Water District No. 19; and (2) the El Moro Pipeline right for 0.5 c.f.s. decreed for domestic and manufacturing uses, with an appropriation date of December 31, 1879, adjudicated with Priority No. 122 on January 12, 1925, in Water District No. 19. The source of supply is southern Colorado’s Purgatoire River,1 a tributary to the Arkansas River. Water District No. 19 comprised that portion of the Purgatoire River and its tributaries south of the northern boundary line of Las Animas County. See Act of Apr. 5, 1909, ch. 177,1909 Colo. Sess. Laws 427-28.

CF & I’s appropriations occurred in connection with its production of coking coal amidst the coalfields in southern Colorado that helped to supply CF & I’s steel plant in Pueblo.2 El Moro, one of the CF & I camps, was located six miles northeast of Trinidad;3 it employed 125 persons. See Ralph C. Taylor, Colorado, South of the Border 439 (1963); see also George S. McGovern & Leonard F. Guttridge, The Great Coalfield War 6 (1972). The production of coke began there with the building of six beehive ovens in 1876, growing to 250 ovens four years later. See Taylor, supra, at 440. The coke burning was done near the mines until 1918 when CF & I established the first by-product coke ovens in the United States at its Pueblo plant; this plant took over the functions of 2,700 coke ovens scattered throughout Southern Colorado. See id.

From 1966 to 1985, CF & I leased its interest in the two water rights at issue in this case to the El Moro Ditch Company (El Moro Ditch), which used the water for irrigation of lands under the El Moro Ditch.4 CF & I then transferred all of its interest in the water rights to a third party in 1985; the El Moro Ditch Company continued to divert the water under an arrangement with the new owners. Santa Fe Ranches has an option to purchase the two water rights from the present owner; exercise of its option depends upon a change of water rights being decreed for at least thirty acre-feet of transferable consumptive use annually.

Santa Fe Ranches seeks by its application to change both of the CF & I rights from manufacturing to “municipal, domestic, commercial, industrial, irrigation, stock water, recreation, fish, wildlife, and fire protection, exchange, augmentation, and reuse and successive uses until such water has been entirely consumed.” The principal use of the water would be for augmentation of depletions from three wells to serve as a central water supply for a 459-lot subdivision, located south of the City of Trinidad and immediate[51]*51ly west of highway 1-25, north of the New Mexico border.

No prior change proceeding has determined the historic use of the two CF & I rights. In the Water Court, Santa Fe Ranches stated that it could not demonstrate CF & I’s historic use of these rights and sought, instead, to rely on the use of them for irrigation under the El Moro Ditch from 1966 to 1997. It claimed 41.4 acre-feet of consumptive use annually for the Antonio Lopez at El Moro right and 12.6 acre-feet consumptive use annually for the El Moro Pipeline right.

The points of diversion for the CF & I rights and the El Moro Ditch rights are across the Purgatoire River from each other; CF & I’s manufacturing use was made south of the river, while the irrigation use was made north of the river. The El Moro Ditch is one and a half miles long and irrigates 184 acres, of which the water commissioner for the area owns ninety-five acres. Half of the water diverted under the CF & I rights went to his own land. He testified by deposition in the Water Court that he was unaware of the decreed use of the CF & I rights, and that neither he, nor the division engineer, curtailed the irrigation diversions: “It never crossed my mind that it wasn’t used for, or couldn’t be used for irrigation.” He also testified that CF & I’s use of its rights may have ceased “maybe 30, 40 years prior” to 1966.

In his affidavit, Ralph Adkins, the CF & I employee who arranged the CF & I lease with the El Moro Ditch, stated that CF & I had maintained records of its use but these had disappeared:

I personally know that CF & I kept records of use of their water rights, including these, to assure that it could document their continued use. I have attempted to research the CF & I records, but find that CF & I has, after my departure from the company, either destroyed or misplaced all its records on these water rights.

He also stated that CF & I did not intend to abandon the water rights, that the water commissioner was aware of their diversion for irrigation and had not ordered curtailment, and that CF & I’s successor in interest to the rights held them “for the purpose of sale and also did not intend to abandon these water rights.”5

The state and division engineers continued to oppose the application after the City of Trinidad and the Purgatoire River Water Conservancy District withdrew their statements of opposition. In his affidavit, Dick Wolfe of the State Engineer’s Office stated that, “The Purgatoire River is severely over-appropriated. Water rights junior to 1898 generally do not receive a reliable water supply.” In light of the lack of information concerning the historic use of CF & I’s manufacturing rights, the engineers contended that the proposed change of use might enlarge the water rights, to the injury of others.

Asserting that use of the water for irrigation under the El Moro Ditch pursuant to the lease can properly serve as the basis for calculating the historic use of the CF & I water rights, Santa Fe Ranches submitted the following determinative question of law to the Water Court pursuant to C.R.C.P. 56(h):

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Bluebook (online)
990 P.2d 46, 2000 Colo. J. C.A.R. 6409, 1999 Colo. LEXIS 1199, 1999 WL 1095475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santa-fe-trail-ranches-property-owners-assn-v-simpson-colo-1999.