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Select Energy Services, LLC v. K-Low, LLC

Supreme Court of Colorado, En Banc

May 15, 2017

Select Energy Services, LLC, a Delaware limited liability company, Plaintiff-Appellee
v.
K-LOW, LLC, a Louisiana limited liability company, Defendant-Appellant and Division Engineer for Water Division No. 1, Appellee Pursuant to C.A.R. 1(e) and Faith Tabernacle Church, Inc., a Colorado corporation. Defendant-Appellee

         Appeal from the District Court Weld County District Court, Water Division 1, Case No. 15CW3026 Honorable Todd Taylor, Water Judge

          Attorneys for Plaintiff-Appellee: Cyran Water Law LLC John J. Cyran Denver, Colorado

          Attorneys for Defendant-Appellant: The Askman Law Firm, LLC David F. Askman Michael M. Frandina Denver, Colorado RJB Lawyer, LLC Robert J. Bruce Denver, Colorado

          Attorneys for Appellees Pursuant to C.A.R. 1(e): Cynthia H. Coffman, Attorney General Ema I. G. Schultz, Assistant Attorney General Denver, Colorado No appearance on behalf of Defendant-Appellee.

          HOOD JUSTICE

         ¶1 Select Energy Services, LLC, hopes to run a water pipeline across an old, partly destroyed irrigation ditch that meanders alongside the South Platte River near Kersey. At the moment, however, it cannot. An easement arising from a water right long associated with that ditch stands in its way. Wielding that easement, K-LOW, LLC has attempted to block Select's pipeline as a trespass. Yet, because the water right supporting the easement recently changed, K-LOW faces its own difficulty: its easement may no longer exist. Whether the easement exists turns on the scope of the underlying water right.

         ¶2 Originally, the decree recognizing that right diverted water from a headgate on the South Platte and channeled it down the ditch from which the right's owner released it for irrigation. More recently, though, a change to the right now requires its owner to divert South Platte waters through a pump downstream from the old headgate and beyond the end of the ditch. The parties to this case disagree about whether that change also eliminated any right to divert water from the old ditch but do agree that our answer to that question will decide the viability of K-LOW's trespass claim. Absent that water right, K-LOW's trespass claim fails.

         ¶3 While these broader facts are helpful to an understanding of the parties' objectives, our task is simply to review the water court's adjudication of the water right. That task, and our conclusion, are much more straightforward. The water court found no right to divert water from the ditch, and we agree with its determination. Because, by its plain language, the decree defining the water right allows its holder to divert water only at the pump downriver from the disputed ditch, we conclude the decree does not include a right to divert water from that ditch. We therefore affirm the water court's judgment.

         I. Facts and Procedural History

         ¶4 At issue are two water decrees entered a century apart: a 1914 decree establishing a right to divert water from the South Platte River that was then conveyed through the Sterling Drain and Seepage Ditch ("SD&SD"), and a 2014 decree relocating the point of diversion for that right from a headgate on the South Platte to a pump farther downstream. The latter decree reflects a change made pursuant to Colorado's simple change statute, section 37-92-305(3.5), C.R.S. (2016) (alternatively, "simple change statute").

         ¶5 The 1914 decree granted Asa Sterling 28.0 cubic feet of water per second ("c.f.s."), absolute, for the irrigation of 300 acres, with an appropriation date of December 8, 1893. That decree specified, by legal description, a right to divert South Platte River waters at a headgate on that river. And in addition to identifying the South Platte as a source of supply, the 1914 decree also noted the SD&SD right "takes its supply of water . . . from seepage and waste waters coming . . . from the Plumb drain ditch and other accretions along its course."

         ¶6 Faith Tabernacle Church later obtained the SD&SD right from Sterling's successors and in 2014 applied to move the right's diversion point to a pump on Faith's property, downstream from both the original headgate and the terminus of the ditch. Faith sought that change under the recently enacted simple change statute, which creates a simpler process for moving a surface point of diversion but prohibits combining that change with any other change to the water right. § 37-92-305(3.5). After reviewing the application, the Division Engineer worried Faith might not own the entire water right and asked Faith whether it was seeking to change either a portion of the right (which the engineer concluded was not permissible under the simple change statute) or the entire right. In response, Faith clarified that (1) it owned the entire water right and (2) it was seeking to change the point of diversion for the entire right.

         ¶7 The water court approved the application and entered the 2014 decree. That decree memorializes the change in the right's surface diversion point from the headgate to the downriver pump. It provides that Faith may divert no more than 28.0 c.f.s., absolute, for the irrigation of 300 acres and retains the 1914 decree's priority date as well. The 2014 decree further specifies that the source for the right is surface water from the South Platte River and notes, "The [1914] decree also adjudicates the Plumb Drain Ditch and other accretions as sources of supply for the SD&SD."

         ¶8 After changing the point of diversion, Faith quit-claimed to K-LOW whatever property interest and rights it may have retained in the ditch itself-specifically, "all right to access and use the Ditch for the conveyance of the [SD&SD right], for maintenance and operations, and all other purposes incidental or appurtenant thereto." Faith expressly retained ownership of the SD&SD right itself, and, setting aside the disputed easement and ...


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