Concerning the Application for Water Rights of Huffaker

          Appeal from the District Court Alamosa County District Court, Water Division 3, Case No. 13CW3012, 16CW3013 Honorable Pattie P. Swift, Water Judge.

          Attorneys for S. Cade Huffaker and Bradley H. Huffaker: Erich Schwiesow, PC Erich Schwiesow Alamosa, Colorado\

          No appearance on behalf of Lee Crowther, Conejos Water Conservancy District, or Craig Cotten.

          OPINION

          MÁRQUEZ JUSTICE.

         ¶1 The appeals in these cases from Water Division 3 concern a dispute over rights to irrigation tail and waste water that collects in a borrow ditch^[1] along a section of County Road 19 in Conejos County. S. Cade Huffaker and Bradley Huffaker (collectively, the "Huffakers") and a neighboring landowner, Lee Crowther, filed competing applications for rights to this water. The Huffakers filed their application in 2013; Crowther filed his in 2016.

         ¶2 The Huffakers argue that under the postponement doctrine, they are entitled to the senior right in the borrow ditch water because they filed their application first. Under that doctrine, two dates are critical in determining the priority of rights adjudicated on the same source of water: (i) the date the application was filed, which sets the calendar year the water right was filed and establishes priority over filings in subsequent calendar years, and (ii) the date the first step toward appropriation was taken, which establishes the relative priority of water rights applied for in the same calendar year. § 37-92-306, C.R.S. (2018); Matter of Bd. of Cty. Comm'rs of Cty. of Arapahoe v. United States, 891 P.2d 952, 964 (Colo. 1995); see also Dallas Creek Water Co. v. Huey, 933 P.2d 27, 35 (Colo. 1997).

         ¶3 The water court held that the postponement doctrine does not apply here because it concluded that the water rights claimed by the Huffakers and Crowther do not derive from the same source. A dirt and gravel driveway blocks the ditch as it flows north and channels water into a culvert that Crowther uses to deliver the water under County Road 19 to his fields. Although the water frequently overflows this driveway, runs down the road, and flows back into the ditch, eventually reaching the Huffakers' point of diversion farther north, the water court reasoned that because the driveway directs much of the water into Crowther's culvert (thus preventing it from reaching the Huffakers' point of diversion), the section of borrow ditch south of the driveway is not a source of the Huffakers' water. The court further concluded that the collection area for the Huffakers' right begins north of the driveway, not farther south at the same point as Crowther's right. Having concluded that the postponement doctrine does not apply because the rights claimed do not derive from the same source, the court held that Crowther's right to divert water at the culvert was not junior to the Huffakers' right, even though Crowther's application was filed two and a half years after the Huffakers' application.

         ¶4 The Huffakers appeal, again contending that the postponement doctrine applies to determine the priority of the applicants' competing rights to the water in the borrow ditch, and that they are entitled to the senior priority because they filed their application first. They further argue that the collection area of their absolute water right begins not at the driveway, but farther south (upstream) at the same point as Crowther's right. We agree with both contentions.

         ¶5 We hold that the water court erred in concluding that the postponement doctrine does not apply in this case. The water that collects in the sections of the borrow ditch at issue here generally derives from irrigation of the same fields; moreover, this ditch water frequently overruns the driveway, floods the road, and returns to the ditch on its northward course. In short, the water in the borrow ditch south and north of the driveway constitutes the same source of water, irrespective of the driveway. Because the Huffakers and Crowther seek competing rights in the same source of water, the postponement doctrine applies, and the Huffakers are entitled to the senior right. We further hold that the water court erred in concluding that the collection area for the Huffakers' absolute right starts north of the driveway and not farther south at the same point as Crowther's right. Accordingly, we reverse the judgment of the water court, and remand these cases with directions to revise the applicants' decrees consistent with this opinion.

         I. Facts and Procedural History

         ¶6 The irrigation tail and waste water at issue here accumulates in the L.N. Bagwell and Sons Seepage and Drainage Ditch ("borrow ditch"), located along the western edge of Conejos County Road 19. The water in the borrow ditch varies from year to year, depending on the irrigation practices upgradient of the ditch on the west side of County Road 19. County Road R (which runs west to east) intersects County Road 19 to the north of the ditch water collection area. Lee and Grace Bagwell (collectively, the "Bagwells"), Crowther, and the Huffakers each own parcels of land to the east of County Road 19, and all deliver water from the ditch to their respective properties through culverts under County Road 19 as the water flows south to north.

         ¶7 The Bagwells' property lies farthest south, upstream of Crowther's and the Huffakers'. The Bagwells have a decree for the tail water that collects in the section of the borrow ditch across County Road 19 from their property. They deliver this water through a series of culverts, the northernmost of which is located about 3, 377 feet south of the intersection of County Road 19 and County Road R.

         ¶8 Crowther owns 160 acres directly north of the Bagwells' property. His property extends north up to County Road R. Crowther has delivered the borrow ditch water to his land using three culverts that run west to east, two of which are relevant here. Culvert Number 1, the southernmost of Crowther's culverts, is about 2, 630 feet south of County Road R. The middle culvert, Culvert Number 2, was approximately 1, 350 feet south of County Road R. Several years ago, Conejos County removed Culvert Number 2 at the request of the Huffakers, but the County has indicated it is willing to reinstall the culvert if Crowther is granted the right to divert water from the borrow ditch at this location.

         ¶9 The Huffakers own property immediately north of County Road R, namely, the southwest quarter of Section 8, Township 34 North, Range 10 East, N.M.P.M. (the "Huffakers' property"). In 1952, the Huffakers' great-grandfather, Luther N. Bagwell, filed a map and filing statement for the L.N. Bagwell & Sons Seepage and Drainage Ditch-the borrow ditch at issue here. Luther Bagwell owned the Huffakers' property until 1977, when he conveyed it to the Huffakers' parents. The Huffakers acquired the property in 2010. The Huffakers deliver the borrow ditch water to their land by fluming water under the intersection of County Road 19 and County Road R. From there, the water runs east in a ditch that previously was flumed over the Ephraim, Richfield, and Sanford canals to irrigate the entirety of the Huffakers' property. The flume system has since deteriorated, and only about 75 acres west of the Ephraim Ditch are currently irrigated.

         ¶10 On December 24, 2013, the Huffakers filed an application in Case No. 13CW3012, seeking absolute and conditional rights in the ditch water to irrigate their property. At this point, the Huffakers seek an absolute right to 8 cubic feet per second ("c.f.s.") from the borrow ditch to irrigate the 75 acres west of the Ephraim Ditch, and a conditional right to use the same 8 c.f.s. to irrigate another 85 acres east of the Ephraim Ditch.^[2] The Huffakers measured peak flow in the borrow ditch near their point of diversion at 9.1 c.f.s. in 2016, and 7.3 c.f.s. in 2017.

         ¶11 The Huffakers' application seeks to use water that collects in the section of borrow ditch reaching from the Bagwells' previously decreed point of diversion at their northernmost culvert-about 3, 377 feet south of the intersection of County Road 19 and County Road R-up to the Huffakers' point of diversion at that intersection. The Huffakers claim they are entitled to the water that collects in this 3, 377-foot stretch of borrow ditch because the 1952 map of the L.N. Bagwell Seepage and Drainage Ditch appears to indicate that all of the water collected in the borrow ditch for one mile (or 5, 280 feet) south of the intersection of ...