Water Rights of Central Colorado Water Conservancy District v. City of Greeley ex rel. Water & Sewer Board

147 P.3d 9, 2006 WL 3163103
CourtSupreme Court of Colorado
DecidedNovember 6, 2006
DocketNos. 05SA120, 05SA121
StatusPublished
Cited by28 cases

This text of 147 P.3d 9 (Water Rights of Central Colorado Water Conservancy District v. City of Greeley ex rel. Water & Sewer Board) 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
Water Rights of Central Colorado Water Conservancy District v. City of Greeley ex rel. Water & Sewer Board, 147 P.3d 9, 2006 WL 3163103 (Colo. 2006).

Opinion

Justice EID

delivered the Opinion of the Court.

In this appeal we consider the extent of a water right held by the Central Colorado Water Conservancy District and its Ground Water Management Subdistrict ("Central"). Central filed two applications in the District Court for Water Division No. 1 seeking to change the use of a portion of its water right, which it holds by virtue of its ownership of 77 shares of stock in the William R. Jones Ditch Company. In order to rule on Central's application, the water court was required to determine (1) the lawful historic use of the Jones Ditch Water Right under an appropriation made in 1882, and (2) Central's share of the consumptive use of that water right.

The water court found that the Jones Ditch Water Right was an appropriation of an absolute water right, and held that the lawful historic use of the water right was limited to the volume of water sufficient to irrigate approximately 344 acres, of which 37 acres are owned by Central. We affirm that holding. The water court further held that, based on a parcel-by-parcel analysis of the Jones Ditch Water Right, Central was entitled to consumptive use credit for the historic volume of water used to irrigate its 37 acres, which amounts to 66.65 acre feet per year. Because we believe that a ditch-wide analysis is more appropriate, we reverse that holding and remand the case to the water court for further proceedings on this issue.

I.

The Jones Ditch draws water from the south bank of the Cache La Poudre River under a water right decreed in the general adjudication for the river entered on April 11, 1882 (the "1882 Decree"). The 1882 Decree permitted the Jones Ditch to draw 981 cubic feet per minute from the river for irrigation and domestic purposes, but did not expressly limit consumptive use of the water to any specific acreage. The decree was based on the testimony of the appropriator of [12]*12the water right, William R. Jones. Mr. Jones testified on November 18, 1879, that he owned "at least 800 acres that lie under the ditch on the same side of the river that can be irrigated from this ditch. I have irrigated all of this land that needs irrigation." Neither the express language of the decree nor the testimony of Mr. Jones suggested that the appropriation was intended to extend beyond the acreage irrigated by Mr. Jones in 1879, or that the appropriation could be extended beyond those acres upon the satisfaction of a subsequent condition.

Testimony in the proceedings below revealed that, when the 1882 Decree was entered, Mr. Jones owned no more than 560 acres in proximity to the Jones Ditch. Of this acreage, approximately 344 acres are down grade of the Jones Ditch; presumably, these are the "at least 300 acres" to which Mr. Jones referred in his testimony. Evidence presented to the water court also demonstrated that, beginning in 1898, Mr. Jones and his successors irrigated additional acreage with water drawn from the Jones Ditch. By 1920, the Jones Ditch irrigated at least 700 acres.

In 1944, many years after Mr. Jones's death, the Jones Ditch Company was incorporated as a mutual ditch company. The Jones Ditch Company holds the Jones Ditch Water Right for the benefit of its shareholders. Central owns 139 of the 200 outstanding shares in the Jones Ditch Company.

In its applications filed with the water court below, Central seeks to change the use of water attributable to 77 of its shares in the Jones Ditch Company from domestic and irrigation to irrigation, augmentation, replacement, exchange, and recreation by direct release or storage for later release, with a right to fully deplete the consumable portion of the water.

In order to rule on Central's applications, it was necessary for the water court first to determine the extent of the lawful historic use of the Jones Ditch Water Right. Central argued that the Jones Ditch Water Right extended to the approximately 700 acres irrigated with water drawn from the Jones Ditch since the 1920s. Several entities opposed Central's application: the City of Greeley, Greeley Irrigation Company, Irriga-tionists Association, Aggregate Industries WCR, Inc., the City of Thornton, the City of Boulder, Centennial Water and Sanitation District, and the Harmony Ditch Company (collectively, the "Opposers").

The Opposers argued that Central's interpretation of the 1882 Decree would result in an unlawful enlargement of the Jones Ditch Water Right, which they claimed was limited to the volume necessary to irrigate the 844 acres originally irrigated by Mr. Jones. Central's engineer acknowledged at trial that the annual historic use of the Jones Ditch Water Right was approximately 1.49 acre feet per acre based on irrigation of approximately 700 acres. At 1.49 acre feet per acre, the irrigation of 3844 acres would consume approximately 586 acre feet of water per year. Irrigating the approximately 700 acres that Central claimed are covered by the Jones Ditch Water Right would involve the consumptive use of approximately 1,100 acre feet per year.

In a thorough and carefully drafted pretrial order, the water court determined that the Jones Ditch Water Right extended only to the 344 acres that were irrigated when the 1882 Decree was entered, and that the expanded irrigation from 1882 to 1920 could not be considered part of the Jones Diteh's lawful historic use. The water court based its decision on Mr. Jones's 1879 testimony, which revealed that he sought an absolute right to irrigate no more than the approximately 300 acres that he was irrigating at the time the 1882 Decree was entered.

After establishing the extent of the Jones Ditch Water Right, the water court turned to determining Central's portion of that right. Central argued that the water court should conduct a parcel-by-parcel analysis, whereby the court would award Central credit for the consumptive use of water necessary to irrigate the 37 acres originally subject to the 1882 Decree and now owned by Central. The Opposers disagreed, and argued that the water court should determine the ditch-wide consumptive use and then award Central its pro-rata share of the Jones Ditch Water [13]*13Right based on its ownership of stock in the Jones Ditch Company.

The water court's analysis was complicated by the terms of a decree entered in 1992 (the "1992 Decree") that awarded Central 401.4 acre feet of consumptive use per year based on its ownership of 62 shares of stock in the Jones Ditch Company (these shares are not at issue in the present case). The evidence presented to the water court below indicated that the consumptive use of the entire Jones Ditch Water Right was approximately 520 acre feet per year.1 Under a ditch-wide analysis, therefore, Central would only be entitled to a total of 861 acre feet per year of consumptive use for all of its shares of stock in the Jones Ditch Company. Since the 1992 Decree already awarded Central 401.4 acre feet per year of consumptive use for its ownership of 62 shares, a ditch-wide analysis would mean that its additional 77 shares (the shares subject to Central's current change applications) would provide Central with no additional water use credit.

The water court held that the doe-trine of res judicata-specifically, the doctrine of claim preclusion2-prevented a ditch-wide analysis of the Jones Ditch Water Right, since that would essentially require the water court to revisit the 1992 Decree and revise the 401.4 acre feet per year credit awarded to Central.3

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Bluebook (online)
147 P.3d 9, 2006 WL 3163103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/water-rights-of-central-colorado-water-conservancy-district-v-city-of-colo-2006.