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February 27, 2019  |  Written by Sarah A. Klahn

Colorado Supreme Court Confirms Necessary Elements of an Enforceable Water Right

Earlier this week the Colorado Supreme Court ruled that in order for a water right to be enforceable, the decree must contain specified elements that measure, limit and define the nature and extent of a water right.  See Dill v. Yamasaki Ring, LLC, 2019 CO 14, 2019 Colo. LEXIS 165.

Don and Cathie Dill, and their neighbors Frances and Jerry Pearce, purchased adjoining property in Fremont County, Colorado, decades ago.  Their parcels were irrigated by springs arising in the mountains above their property, and delivered in an open ditch and then flumed across Cherry Creek in a culvert.  They believed the springs had been adjudicated for irrigation uses on their property, and continued to irrigate with the springs.

In 2011, after many years of irrigating with the spring water source, the Division 2 Water Engineer (Division Engineer) curtailed Dill and Pearce’s use of irrigation water from the spring based on an interpretation that the 1909 decree had adjudicated the springs as a source of water for the Campbell Ditch, which irrigated property nearby.  In the view of the Division Engineer, delivery of the springs for irrigation on the Dill and Pearce properties was unlawful because it was inconsistent with the underlying decree.

In 2013, after the  Division 2 Water Court found that the 1909 decree did not adjudicate the springs at all, the Dills and Pearces filed an application in the water court to adjudicate the springs for irrigation uses on their properties, claiming a 1903 appropriation date.  The owner of the Campbell Ditch objected to the application.

The water court held a trial in 2017 on the claims to adjudicate the springs for irrigation uses on the Dill and Pearce properties and subsequently entered a decree—the first one—adjudicating the springs to the Dills and Pearces for irrigation uses and specifically finding that the springs were not an adjudicated source of water for the Campbell Ditch.  Mr. Ring, the Campbell Ditch owner, appealed to the Colorado Supreme Court.

The Supreme Court affirmed the water court and found that in the “absence of indicia of enforceability,” an appropriation could not be considered an adjudicated enforceable water right even if it was mentioned in a decree.  The Supreme Court agreed with the water court that the indicia of enforceability included a priority date, the amount of water, and the type of use.  In the language of the 1909 decree, which the Division Engineer originally interpreted as having adjudicated the springs as a source of water to the Campbell Ditch, those indicia of enforceability were missing.  The Court explained that “[a] decree must measure, limit and define both the nature and extent of a water right.  The priority, the location of diversion at the supply’s source, and the amount of water for application to a beneficial use are all essential elements of the appropriative water right.”  Therefore, the Campbell Ditch owners did not possess an enforceable right to the springs under the 1909 decree.

This case sets forth two rules for Colorado water users who value their right to use this precious resource.  First, a water right is essentially useless without a decree confirming it—water appropriations, even very old ones, are unenforceable and subject to complete curtailment at any time without a decree confirming their existence.  This decision confirms that a careful reading of the water court decree is important in order to ensure an understanding of the nature and extent, if any, of an entitlement to a particular quantity of water.  Second, even where a water user does have a decree, that decree must contain the priority, the location of diversion at the supply’s source, and the amount of water for application to a beneficial use in order to be enforceable.  This case puts all Colorado water users on notice that they should review their decrees, particularly older ones, to ensure that the decrees contain sufficient detail to actually confer an enforceable water right.

Somach Simmons & Dunn Shareholder, Sarah Klahn, represented the Dills and Pearces in this matter.  For more information, contact Sarah Klahn at sklahn@somachlaw.com.

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