White Jankowski Lawyers

Colorado Supreme Court reaffirms that water rights are limited to the terms of their decrees

June 29, 2017

The Colorado Supreme Court recently interpreted a decree entered pursuant to Colorado’s simple change statute in the context of a trespass claim.  Select Energy Servs., LLC v. K-LOW, LLC, No. 16SA166, 2017 CO 43 (Colo. May 15, 2017).  The Court considered whether the simple change decree approving a new point of diversion at a pump eliminated any continuing right to divert water from an old ditch.  The Court reviewed the plain language of the decree and found that it only granted a right to divert water from the new downstream pump, not the old ditch, and thus K-LOW did not have the authority to assert a trespass claim regarding the ditch.

Background

The dispute involved two water decrees entered a century apart: (1) a 1914 decree establishing a right to divert water from the South Platte River through the Sterling Drain and Seepage Ditch; and (2) a 2014 decree relocating the point of diversion for that right from a headgate on the South Platte River to a pump farther downstream.

Faith Tabernacle Church (Faith) obtained the 1914 right and applied in 2014 to move the diversion point downstream from the original headgate and the terminus of the ditch, to a pump on Faith’s property.  The water court approved the application and entered the 2014 decree, memorializing the change in the right’s surface diversion point from the headgate to the downriver pump.

After changing the point of diversion, “Faith quit-claimed to K-LOW whatever property interest and rights it may have retained in the ditch itself.”  ¶ 8.  K-LOW then asserted that Select Energy Services (Select) had trespassed on K-LOW’s ditch easement by placing a pipeline across the ditch.  Select declined to remove the pipeline, and K-LOW filed a trespass claim in Weld County District Court.  The parties agreed that the validity of K-LOW’s trespass claim depended on whether the 2014 decree allowed continued diversions through the Sterling Drain and Seepage Ditch in addition to the newly approved pump.  “At the parties’ joint request, the court dismissed that action, and Select filed a new suit in the water court for Water Division No. 1 seeking a declaratory judgment as to whether the 2014 decree extinguished the right to divert water from the ditch.”  ¶ 9.  Select then moved for partial summary judgment, and the water court concluded that “because the 2014 decree moved the [water] right’s only diversion point to the pump on the South Platte, there remained no independent right to divert seepage, waste waters, or accretions elsewhere.”  ¶ 10.  K-LOW appealed that decision.

Colorado Supreme Court’s Decision

The Court considered the plain language of the simple change decree and noted that it identified a single point of diversion—the pump on the South Platte River—and thus did not recognize a continuing right to divert water from the ditch.  The Court reasoned that a water right is limited to what appears on the face of the decree.

The Court concluded that “[b]ecause, by its plain language, the decree defining the water right allows its holder to divert water only at a pump downriver from the disputed ditch, and that language is not susceptible to any other reasonable interpretation, we conclude the decree does not include a right to divert water from the ditch at issue.”  ¶ 21.  The Court declined to consider extrinsic evidence to clarify the 2014 decree’s meaning.  Given this reasoning, the Court affirmed the judgment of the water court, and K-LOW’s trespass claim failed.

This case reaffirms that water rights are limited to the terms of their decrees.  In making a simple change of a water right to a new point of diversion, if an applicant’s decree does not describe a continuing right to divert through the original point, then diversions will be limited to only the new point of diversion in the future.

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