Williams v. Midway Ranches Property Owners Ass'n

938 P.2d 515, 1997 Colo. LEXIS 462, 1997 WL 289970
CourtSupreme Court of Colorado
DecidedJune 2, 1997
DocketNo. 96SA369
StatusPublished
Cited by41 cases

This text of 938 P.2d 515 (Williams v. Midway Ranches Property Owners Ass'n) 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
Williams v. Midway Ranches Property Owners Ass'n, 938 P.2d 515, 1997 Colo. LEXIS 462, 1997 WL 289970 (Colo. 1997).

Opinion

Justice HOBBS

delivered the Opinion of the Court.

This appeal from a judgment and decree of the Water Court for Water Division No. 2 concerns an augmentation plan filed by Midway Ranches Property Owners’ Association, Inc. (Midway Ranches), proposing to utilize shares of the Fountain Valley Mutual Irrigation Company (FMIC) to replace depletions from out-of-priority diversion and use of water by a tributary well in connection with a central water supply system for a new subdivision development between Colorado Springs and Pueblo.1 In previous determinations the water court had found that each FMIC share yielded 0.7 acre-foot of net average consumptive use for replacement purposes per year based on historic use of the mutual ditch company’s water rights. Objector/Appellant, The Greenview Trust, through its trustee Ralph R. Williams (Greenview Trust) asserts that the water court, prior to trial, erroneously employed res judicata to bar redetermination of the previous quantification of the FMIC water rights.

We affirm the judgment of the trial court in part but also reverse in part. We remand the case for revision of the decree to: (1) include an identification of the FMIC water rights, by decree number, amount, appropriation and adjudication dates, which Midway Ranches owns pro rata as a shareholder for use in the augmentation plan; and (2) limit FMIC to 5,800 shares, absent further court review, so that the historic yield of 0.7 acre-foot per share is not diluted.

I.

By application, resume, and publication of legal notice in newspapers of general circulation in the Arkansas River Valley, Midway Ranches proposed an augmentation plan to permit out-of-priority diversion and use in connection with a well to serve a central water supply system for a new development, identified as Midway Ranches POA Well No. 1. The well would tap an underground water tributary to Fountain Creek and the Arkansas River in the Widefield Aquifer. The State Engineer denied the well permit in the absence of an approved augmentation plan, see § 37-90-137(2), 15 C.R.S. (1996 Supp.); § 37-92-305(6), 15 C.R.S. (1996 Supp.), and this case was initiated.

The resume and newspaper legal notices identified the FMIC water rights proposed to be utilized in the plan for augmentation and referenced prior water court determinations whereby FMIC water rights were quantified for use in augmentation plans, including the judgment and decree in Case No. 90CW28, for the Security Water and Sanitation District (Security). The Security case judgment and decree contained a finding that “each Fountain Mutual share has historically yielded on the average the equivalent of 0.7 acre-feet of net replacement or consumptive use water per year.”

On March 21, 1995, Greenview Trust filed its Statement of Opposition and a Motion to Re-Refer the case from the referee to the water judge. Greenview Trust holds irrigation rights to tributary waters, with priorities dating to the early 1860s diverting downstream of FMIC and the proposed development on Fountain Creek above its junction with the Arkansas River at the north edge of Pueblo. Greenview Trust: (1) alleged that an error in administration by water officials, consisting of imposition of a futile call for a number of years, had resulted in greater diversions into the FMIC system than other[519]*519wise would have occurred; (2) requested imposition of a dry-up covenant on lands under the FMIC system; and (3) reserved the right to assert other grounds at a later time in the proceeding. A Statement of Opposition by the State and Division Engineers requested conditions that would adequately address the time, place, and amount of replacement water released to offset well depletions in order to protect vested water rights and allow the out-of-priority diversion to occur without curtailment by the water officials. The City of Colorado Springs and FMIC also filed Statements of Opposition.

Trial was set for December 27 and 28, 1995. Greenview Trust filed pre-trial briefs alleging that it was not bound by prior court determinations regarding historical usage of the FMIC water rights, due to failure of the court to apply the correct case law previously. Greenview Trust alleged that the historic use quantification of FMIC’s water rights should have been based on irrigation of laiids under the originally decreed points of diversion prior to transfer of certain water rights to the FMIC system. FMIC responded with a motion in limine seeking to preclude rede-termination of prior historical usage determinations of the FMIC water rights entered by the water court in previous augmentation cases. In particular, FMIC relied upon the judgment and decree entered on July 6,1992, in Case No. 90CW28 (Security decree), regarding an augmentation plan for Security, which is included in the record before us.

The Security decree identified FMIC water rights changed for augmentation use by description, including priority numbers and dates, and the decree contained findings of fact that the historical yield of each FMIC share is 0.7 acre-foot of water. That decree also included a finding that FMIC is a water-short and urbanizing system with appropriate dry-up occurring without the need of a dry-up covenant on lands historically under the system. Entry of the Security decree was preceded by resume notice and publication of legal notice in newspapers of general circulation in the Arkansas River Valley which stated, at the outset of that ease, that an historical consumptive use credit of. 0.7 acre-foot of water per share was being claimed for augmentation purposes utilizing FMIC water rights.

With leave of the court, Security and other holders of FMIC shares filed pre-trial briefs in the present case arguing against reopening the historic use determinations regarding the FMIC water rights. A brief of the State and Division Engineers argued that certain events had occurred since the last litigated determination of historical use and asserted that res judicata should not bar consideration of these events.

On December 20, 1995, the water court entered an order determining that the judgments and decrees in the prior water court cases were res judicata on the issues of historical consumptive use attributable to FMIC shares and dry-up requirements as of the entry of the Security decree in 1992. The court recited that it had reviewed, the resume notice and the findings in the Security decree and ruled that Greenview Trust’s attempt to quantify FMIC water rights in light of Orr v. Arapahoe Water & Sanitation District; 753 P.2d 1217 (Colo.1988), could have been brought in opposition to-previous augmentation cases. The case management order of December 21, 1995, provided that Midway Ranches would offer proof supporting the prior 0.7 acre-foot historic yield determinations under current conditions of the FMIC system.

At trial, Midway Ranches’ expert, Gary Thompson of W.W. Wheeler, explained that he had performed the water engineering analysis for the Security augmentation plan and the current Midway Ranches plan. The 0.7 acre-foot yield calculation for the Security decree was based on irrigation of 5,000 acres under the FMIC system for a representative historic period. During that time, FMIC had operated year round for summer irrigation and during the winter primarily in a reservoir storage mode, with some winter irrigation occurring.

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Bluebook (online)
938 P.2d 515, 1997 Colo. LEXIS 462, 1997 WL 289970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-midway-ranches-property-owners-assn-colo-1997.