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SOMACH SIMMONS & DUNN congratulates its clients Don and Cathie Dill, and Frances and Jerry Pearce, on prevailing in a Colorado Supreme Court decision that arose from a water rights dispute involving a spring water source for irrigation. Colorado shareholder Sarah Klahn successfully defended the appeal.

Don and Cathie Dill and their neighbors, Frances and Jerry Pearce, purchased adjoining property in Fremont County decades ago. Their parcels were irrigated by springs arising in the mountains above their property, delivered in an open ditch and then flumed across Cherry Creek in a culvert. Prior to purchase, Mr. Dill investigated the water delivery system and discovered that the culvert dated from the 1960s and found, buried in the side of the creek bank, an even older culvert that appeared to date from the turn of the 20th century. The Dills 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. The Division Engineer interpreted the 1909 decree to have adjudicated the spring 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.

The Dills and Pearces disagreed, and in 2012 they sued for declaratory judgment in Division 2 Water Court, asking the Court to interpret the underlying decree and sought an injunction against the curtailment. The Water Court held a hearing and declined to enter an injunction, finding that the 1909 decree did not adjudicate the springs at all, but merely mentioned the springs in the language of the decree. As a result of that ruling, in 2013 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.

It might have ended there but for the owner of the Campbell Ditch, Mr. Ring, for whom the 2011 curtailment had briefly given hope that the springs were a water source for his ditch. He objected to the application and also continued to litigate the first declaratory judgment action by filing a motion for summary judgment, seeking to modify the Court’s ruling on the injunction to be consistent with the Division Engineer’s decree interpretation—specifically, for a finding that the springs were an adjudicated source of water for the Campbell Ditch. At that point, the Dills and Pearces hired water rights attorney Sarah Klahn to assist them with prosecuting the remainder of the Water Court application and their declaratory judgment case.

The Water Court ruled in favor of the Dills and Pearces, and against the Campbell Ditch owner, Mr. Ring, in its motion for summary judgment, and in August of 2017, after a trial to consider the claims in the Dills and Pearces’ water rights application, the Water Court entered a decree affirming its prior ruling that the springs were not a source of water for the Campbell Ditch and adjudicating the springs to the Dills and Pearces’ for irrigation uses.

Mr. Ring appealed to the Colorado Supreme Court.

The Supreme Court affirmed the Water Court decision and found that in the “absence of indicia of enforceability,” an appropriation could not be considered an adjudicated enforceable water right. The Supreme Court agreed with the Water Court that the indicia of enforceability included a priority date so that the water administration officials would know when the water rights had priority, the amount of water, and the type of use. In the language of the 1909 decree that was at issue in the original matter and which was interpreted by the Water Court on at least three occasions, those indicia were missing. The Supreme Court cited previous rulings to further explain 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 1909 decree did not create an enforceable right to the springs water. The Court rejected Mr. Ring’s argument that the 1909 decree treated the springs not as a separate water right but as a supplemental source for the ditch rights and was, therefore, not required to independently satisfy the elements of an enforceable decree. Further, because the language of the decree was clear and unambiguous, the Court refused to consider extrinsic evidence as to its meaning—that is, the plain language of a decree and nothing more governs its interpretation.

This case confirms two rules for Colorado water users who value their right to use this precious resource.

• First, a water right is unenforceable without a decree confirming it—water rights, even very old ones, are subject to complete curtailment at any time without a decree confirming their existence.
• Second, a mere reference to a water source in a decree, without more, may be insufficient to confer an entitlement to a water right.

“We were very pleased with this outcome. The springs that were the subject of this dispute are the only source of supply for the Dills and Pearces’ property and securing an enforceable, administrable water right for them was of critical importance. The court confirmed that the language used in a decree controls whether or not a water source has been adjudicated as an enforceable, administrable water right.” said Sarah Klahn.

See Dill v. Yamasaki Ring, LLC, 2019 CO 14, 2019 Colo. LEXIS 165.

Key Colorado Office Contacts:

Sarah Klahn (sklahn@somachlaw.com)

Ramsey Kropf (rkropf@somachlaw.com)

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