Concerning the Application for Water Rights of S. Cade Huffaker and Bradley H. Huffaker in the Conejos River or its Tributaries in Conejos County.
Lee Crowther, and Concerning Opposer-Appellee S. Cade Huffaker and Bradley H. Huffaker, Applicants-Appellants Craig Cotten, Division Engineer, Water Division 3. Appellee
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\
appearance on behalf of Lee Crowther, Conejos Water
Conservancy District, or Craig Cotten.
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 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.
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
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.
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
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.
Facts and Procedural History
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.
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.
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.
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.
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. 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.
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