Trail's End Ranch, L.L.C. v. Colorado Division of Water Resources

91 P.3d 1058, 2004 Colo. LEXIS 489, 2004 WL 1301842
CourtSupreme Court of Colorado
DecidedJune 14, 2004
DocketNo. 03SA199
StatusPublished
Cited by6 cases

This text of 91 P.3d 1058 (Trail's End Ranch, L.L.C. v. Colorado Division of Water Resources) 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
Trail's End Ranch, L.L.C. v. Colorado Division of Water Resources, 91 P.3d 1058, 2004 Colo. LEXIS 489, 2004 WL 1301842 (Colo. 2004).

Opinion

Justice COATS

delivered the Opinion of the Court.

Trail’s End Ranch appealed directly to this court from a judgment of the water court denying the declaratory and injunctive relief it sought against the Colorado Division of Water Resources. The division engineer had ordered Trail’s End to stop taking water out of Spruce Creek at locations other than the points of diversion decreed to its direct- flow irrigation rights, until those additional locations were approved by the water court. Trail’s End filed in the water court to enjoin enforcement of the order, asserting that having once diverted water at its decreed points of diversion and having returned it directly to the stream, Trail’s End was then entitled to recapture the returned water further downstream, without adjudicating a change of its water right.

Because the practice proposed by Trail’s End would amount to changing or adding new or supplemental points of diversion, it could not benefit from the priorities of its existing water rights without adjudicating changes to those rights. The judgment of the water court is therefore affirmed.

I.

This dispute arises from an attempt by Trail’s End Ranch, LLC, to operate its direct flow irrigation rights, without adjudicating a change in those rights, from points downstream of its decreed points of diversion on the same natural stream. The Division Engineer for Water Division No. 2 issued orders requiring Trail’s End to cease diversions at these downstream points and rejected Trail’s End’s proposal for operating its rights from these downstream points in the future. After the state engineer agreed, Trail’s End filed an action in the water court to declare its entitlement to its proposed operations and to enjoin enforcement of the order. On the basis of a negotiated stipulation of facts, the parties contemporaneously filed motions for summary judgment.

According to the stipulation, water rights owned by Trail’s End include three rights originally adjudicated in the nineteenth century at separate ditches on a natural stream called Spruce Creek, for the irrigation of lands along the creek in Custer County. Although the parties disputed the length of time the practice had continued, they agreed that Trail’s End had been diverting water not only at its decreed headgates on all three ditches but also at points several thousand feet downstream of each decreed headgate.

After the division engineer ordered Trail’s End to cease diversions at the downstream points, Trail’s End complied but proposed to permanently operate these three water rights by: 1) diverting and measuring all water to which it was entitled at its respective decreed points of diversion; 2) measuring and returning all or part of the diverted. water to Spruce Creek; 3) conveying the returned water through Spruce Creek to the downstream point associated with each respective water right; and 4) recapturing the water (subject to reasonable losses incurred in transporting the returned water through Spruce Creek) for irrigation under the respective water rights. Despite the fact that all of the referenced points on the stream and all intervening stream reaches were located on Trail’s End’s property, and that there were no intervening water users between the decreed headgates and proposed downstream points, the engineer found the proposal objectionable in the absence of a change of water rights.

The water court held that Trail’s End was proposing to change its points of diversion and that the conditions of its proposed conveyance of water to the “recapture” points downstream did not exempt it from applying for a change of water right in the manner prescribed by statute. It therefore granted the division’s motion for summary judgment [1061]*1061and denied the motion filed by Trail’s End. Trail’s End appealed the ruling directly to this court.1

II.

Rights to the waters of the natural surface streams of this state are acquired by appropriating previously unappropriated water and putting it to beneficial use. State Eng’r v. Bradley (In re Application of Water Rights in Rio Grande County), 53 P.3d 1165, 1168 (Colo.2002); Williams v. Midway Ranches Property Owners Ass’n, Inc. (In re Application for Water Rights of Midway Ranches Property Owners’ Ass’n, Inc. in El Paso and Pueblo Counties), 938 P.2d 515, 521 (Colo.1997); Shirola v. Turkey Canon Ranch, L.L.C. (In re Application for Water Rights of Turkey Canon Ranch L.L.C. in El Paso County), 937 P.2d 739, 748 (Colo.1997); see § 37-82-101, 10 C.R.S. (2003). The legislature long ago established a system for settling conflicting priorities to water rights through a process of adjudication and decree. SL Group, LLC v. Go West Indus., Inc., 42 P.3d 637, 640 (Colo.2002); South Adams County Water & Sanitation Dist. v. Broe Land Co., 812 P.2d 1161, 1163 (Colo.1991). Absent such an adjudication, water rights are generally, incapable of being enforced. Shirola, 937 P.2d at 749 (Colo.1997).

A water right adjudication is a judicial proceeding at which the respective priorities of water rights are ascertained. Bradley, 53 P.3d at 1168; Shirola, 937 P.2d at 748. An absolute decree confirms that an appropriation has vested as a property right and entitles the subsequent operation of that right through a decreed point of diversion, in a specified amount, for a particular beneficial use. Bradley, 53 P.3d at 1168; Williams, 938 P.2d at 521. Although one of the inei-dents of a water right is the right to change the point of diversion (to the extent that it neither enlarges the right nor injuriously affects other users),.such a change constitutes a change of the water right itself. Bradley, 53 P.3d at 1168-69; see § 37-92-103(5).2 It must therefore be applied for and adjudicated in substantially the same manner as the initial determination of the water right. See § 37-92-302; Empire Lodge Homeowners’ Ass’n v. Moyer, 39 P.3d 1139, 1158 (Colo.2001)(applications are mandatory, not discretionary).

Within the scheme of the Act, the term “diversion” has a specific meaning, which includes removing water from its natural course or location by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device. See § 37-92-103(7). While the term “natural course” is not further defined in the statute, its plain and ordinary meaning, when applied to water, clearly refers to the path along which the water flows in nature as distinguished from its path under artificially induced conditions. See Webster’s Third New International Dictionary, 522 (1976) (course: “the path over which something moves”); Black’s Law Dictionary, 1048 (7th ed.1999) (natural: “brought about by nature as opposed to artificial means”).

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Bluebook (online)
91 P.3d 1058, 2004 Colo. LEXIS 489, 2004 WL 1301842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trails-end-ranch-llc-v-colorado-division-of-water-resources-colo-2004.