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Concerning Application for Water Rights of Dill

Supreme Court of Colorado, En Banc

February 25, 2019

Concerning the Application for Water Rights of Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce in Fremont County.
v.
Yamasaki Ring, LLC, Opposer-Appellant Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce, Applicants-Appellees and Kevin Rein, State Engineer and Steve J. Witte, Division Engineer, Water Division 2. Opposers-Appellees Concerning the Water Rights of Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce in Fremont County. Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce, Applicants-Appellees
v.
Yamasaki Ring, LLC, Opposer-Appellant and Tom French and Joan French, Opposers-Appellees and Concerning Bill Tyner, Division Engineer, Water Division 2 and Kevin Rein, State Engineer. Defendants-Appellees

          Appeal from the District Court Pueblo County District Court, Water Division 2, Case No. 13CW3041 Honorable Larry C. Schwartz, Water Judge

          Appeal from the District Court Pueblo County District Court, Water Division 2, Case No. 12CW95 Honorable Larry C. Schwartz, Water Judge

          Attorneys for Applicants-Appellees: Somach Simmons & Dunn Sarah A. Klahn Denver, Colorado

          Attorneys for Opposer-Appellant: Monson, Cummins & Shohet, LLC David M. Shohet Ryan W. Farr Colorado Springs, Colorado

          Attorneys for Division Engineer and State Engineer: Philip J. Weiser, Attorney General Paul L. Benington, First Assistant Attorney General Ema I. G. Schultz, Assistant Attorney General Denver, Colorado

          No appearance on behalf of Opposers-Appellees Tom French and Joan French.

          OPINION

          SAMOUR JUSTICE

         ¶1 This appeal from the water court requires us to travel back in time to the last century. Our destination is January 4, 1909. Upon arrival, we find ourselves in the district court of Fremont County, Colorado, where W. S. Horton and A. W. Alexander are embattled in a water rights dispute. Both are represented by counsel. The Honorable M. S. Bailey is presiding. The centerpiece of the litigation is a water decree entered by Judge Bailey roughly three years earlier (in November 1905) which, among other things, adjudicated Horton's interest in certain water rights for the Campbell Ditch, an irrigation ditch. This 1905 decree, Judge Bailey rules, is "erroneous in the matter of the date fixed therein for the original construction of said Campbell Ditch," and this error, in turn, affects the priorities for the Campbell Ditch's two water rights in Cherry Creek. Therefore, Judge Bailey sets aside and annuls the 1905 decree and enters a new water decree, dated January 4, 1909. But the 1909 decree is not limited to the Campbell Ditch's two water rights in Cherry Creek; rather, consistent with the 1905 decree, it also provides that the Campbell Ditch is "entitled to receive and conduct water" from nine nearby springs.

         ¶2 It is the water from the nine springs that is at the root of this appeal some 110 years later. The question for us is whether the 1909 decree adjudicates an enforceable water right for the Campbell Ditch in the springs. Yamasaki Ring, LLC, which now owns some of the Campbell Ditch's water rights, asks us to answer the question in the affirmative. The Dills and the Pearces, who own properties where water from the springs has been put to beneficial use since as early as 1903, urge us to answer the question in the negative. In two orders issued in 2016, the water court agreed with the Dills/Pearces and determined that the 1909 decree does not adjudicate a water right in the springs' water because it does not set forth "the necessary information" for adjudication, including an appropriation date, a priority number, or quantification details. Therefore, concluded the water court, the Campbell Ditch's unquantifiable entitlement to "receive and conduct water" from the springs cannot be enforced or administered against any adjudicated water rights. We agree and therefore affirm the water court's judgment.

         ¶3 We hold that the 1909 decree fails to set forth required indicia of enforceability- including an appropriation date, a priority number, and quantification information- with respect to the springs. Therefore, it does not adjudicate a water right in the springs. Without indicia of enforceability, especially a priority number, the 1909 decree does not adjudicate a water right in the springs that can be enforced or administered vis-à-vis adjudicated water rights. We are not persuaded by Yamasaki Ring's assertion that there was no need for indicia of enforceability because the springs' water was adjudicated as a supplemental/additional source of water for the properly adjudicated water rights that the Campbell Ditch has in Cherry Creek. Without indicia of enforceability, and in particular a priority number, the Campbell Ditch's entitlement to receive and conduct water from the springs cannot be deemed an adjudicated water right that can be enforced or administered against other adjudicated water rights.

         I. Facts and Procedural History A. Overview

         ¶4 Yamasaki Ring owns some of the Campbell Ditch's water rights. The Campbell Ditch is an irrigation ditch built in 1883 that originates at a headgate along the north bank of Cherry Creek. In 1890, the Campbell Ditch was extended by the Deever's Extension. Some years later, in 1903, the Campbell Ditch was extended again by what later became known as the Horton Extension in order to access water from certain uphill springs. Water from those springs is captured by the Horton Extension and carried downhill to a forty-foot-long metal culvert over Cherry Creek and into a series of ditches that deliver it to the properties owned by the Dills/Pearces. Without the culvert, water from the springs would flow via the Horton Extension directly into Cherry Creek and to the Campbell Ditch headgate, which diverts water from Cherry Creek.

         ¶5 The dispute between Yamasaki Ring and the Dills/Pearces revolves around the springs' water. The parties disagree about whether the decree issued by the Fremont County district court in 1909 adjudicates an enforceable water right for the Campbell Ditch in the springs' water. To resolve the parties' dispute, we must interpret the 1909 decree. But before doing so, we take a moment to consider the pertinent events that preceded the issuance of that decree.

         B. Pertinent Events Preceding the 1905 Decree

         ¶6 In 1904, Horton filed a "Plat and Statement" ("Plat") of the Campbell Ditch. In the Plat, Horton claimed three water rights: 2.34 cubic feet per second ("c.f.s.") for the Campbell Ditch from Cherry Creek, 2.34 c.f.s. for the Campbell Ditch (by way of the Deever's Extension) from Cherry Creek, and 2.34 c.f.s. for the Horton Extension from the springs. According to the Plat, the appropriation date for the springs' water was September 25, 1903.

         ¶7 The following year, Horton filed a petition and statement of claim (hereinafter collectively "Statement of Claim"), which alleged ownership of the water flowing through the Campbell Ditch. The Statement of Claim maintained that the Campbell Ditch was extended by the Horton Extension "from the original headgate further up the stream and to certain springs along the bank thereof, the water of which had not [previously] been diverted either by a ditch or by any natural stream." It further asserted that the Horton Extension had a carrying capacity of 2.34 c.f.s., that construction of that extension began on September 25, 1903, and that the springs' water had been appropriated and "used continuously during each and every year since . . . by and through . . . irrigation . . . to the extent of the entire supply afforded by [the] springs."

         C. The 1905 Decree Did Not Include Any Indicia of Enforceability with Respect to the Springs

         ¶8 In 1905, Judge Bailey issued a water decree addressing Horton's Statement of Claim. He found that: (1) all of the springs' water was "appropriated by and through" the Horton Extension, which began to be constructed on or about September 25, 1903; and (2) the evidence supported all the allegations in Horton's Statement of Claim. But these findings were omitted in the concluding paragraphs of the 1905 decree, which set forth Judge Bailey's final orders:

It is by the Court considered, ordered, adjudged and decreed that there be allowed to flow into the said The Campbell Ditch out of the waters of Cherry Creek under and by virtue of an appropriation of date March 1st, 1882, being Cherry Creek Priority Number 1.5 and Arkansas River Priority Number 263.5, 2.34 cubic feet of water per second of time for the use and benefit of said W. S. Horton;
That there be further allowed to flow into said ditch under and by virtue of an appropriation by enlargement and extension through the Deever[']s Extension out of the waters of Cherry Creek under an appropriation of date March 1st, 1890, being Arkansas River Priority No. 384.7 and Cherry Creek Priority No. 3[, ] 2.34 cubic feet of water per second of time for the use and benefit of said W. S. Horton;
It is further adjudged that the said The Campbell Ditch is entitled to receive and conduct from a certain spring situate . . . and water from all springs along the line thereof, which runs thence Northeast 7380 feet to the original headgate of The Campbell Ditch . . . .
It is further adjudged and decreed that the said W. S. Horton is the sole owner of said ditch and entitled to receive the water appropriated thereby.

(Emphases added.)

         ¶9 Notably, as to the two Cherry Creek water rights (the "Cherry Creek water rights"), the 1905 decree specified that the water was "allowed to flow into" the Campbell Ditch, and then included appropriation dates, priority numbers (for both Cherry Creek and the Arkansas River), and quantification information. In stark contrast, with respect to the springs, the 1905 decree simply mentioned that the Campbell Ditch was entitled to "receive and conduct" water, and did not include an appropriation date, a priority number, or any quantification information. Even the format of the decree seemed to distinguish between the Cherry Creek water rights, on the one hand, and the entitlement to receive and conduct water from the springs, on the other. The paragraph setting forth the first Cherry Creek water right started with a declaration that the right was "considered, ordered, adjudged and decreed" by the court. The next paragraph, which addressed the second Cherry Creek water right, seemed to be a continuation of the first paragraph-it started with "[t]hat there be further allowed to flow into said ditch." But the paragraph discussing the springs' water was drafted as though it was meant as a separate order that addressed a different subject matter; it started with "[i]t is further adjudged."

         D. Like the 1905 Decree, the 1909 Decree Does Not Include Any Indicia of ...


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