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1909 Water Rights ‘Decree’ Overturned by Colorado Supreme Court for Lack of ‘Indicia of Enforceability’

The Colorado Supreme Court has held that, because a priority date is the most important element of a water right, a 1909 water decree lacking that detail was unenforceable. The complex facts of this case confirm a basic tenant of Colorado water law—a decree must set forth certain required “indicia of enforceability” to be valid against other water rights users. [Yamasaki Ring v. Dill, 2019 CO 14 (Colo. 2019).]

Background and Water Court Decision

This case relies on a string of 100-year-old decisions, and therefore a detailed recitation of the factual history is necessary to understand the Colorado Supreme Court’s recent decision. In 1909 Messrs. Horton and Alexander were in the District Court of Fremont County litigation a 1905 decree to the Campbell Ditch. Because of errors in that decree, the 1909 court annulled that decision and entered a new decree, declaring that the Campbell Ditch, in addition to receiving water from Cherry Creek is “entitled to received and conduct water” from nearby springs.

Turning to the present dispute, appellant Yamasaki Ring (Yamasaki) owns certain water rights in the Campbell Ditch. Appellees the Dills and Pearces (Dills) own property upon which spring water has been put to beneficial use since at least 1903. In its semi-natural state, water from the springs would flow (via a 1903 ditch extension) directly into Cherry Creek and shortly thereafter to the Campbell Ditch headgate. Along with that extension, a 40-foot culvert was constructed upstream of the Campbell Ditch that carries water from the springs over Cherry Creek into a series of ditch that serve what is now the Dills’ land. The pertinent question, then, is whether that 1909 decree granted the Campbell Ditch an enforceable right to that spring water, specifically as against the Dills.

The 1905 decree (later annulled) importantly split its definitions of the Campbell Ditch water rights. Regarding the Cherry Creek rights, the court included appropriation dates, priority numbers (for both Cherry Creek and the Arkansas River which is fed from Cherry Creek), and quantification information. For the springs, the court said only that the Campbell Ditch was entitled to “receive and conduct water.” The 1909 correction decree similarly did not include that specific information but only the “receive and conduct” language in relation to the springs.

This 100-year-old issue first resurfaced in 2011 when the Division Engineer for Water Division 2 (Arkansas River) issued the Dills a cease and desist order instructing them to stop using water from the springs, thereby allowing that water to flow to the Campbell Ditch where it was used by Yamasaki. The Dills then sued the State and Division Engineers seeking a declaratory judgment that “water from [the springs] have always been treated as separate and distinct” from Cherry Creek water rights. The Dills concurrently filed a water rights application to adjudicate their springs’ water rights. Yamasaki filed both an answer and statement of opposition to these claims.

In January 2016 the Water Court issued two identical orders for both cases ruling that:

“The 1909 Decree fails to establish a priority number, date or flow rate for this supplemental water source. Therefore, [Judge Bailey] did not confirm a specific water right attributable to the springs but only decreed an entitlement to receive and conduct the springs’ water without adjudicating any appropriation date or priority enforceable or administrable for a water right in the springs.”

Therefore, the Water Court held, Yamasaki does not have an enforceable right to the spring water. The water rights application then went to trial in 2017 where the court ruled that: 1) the springs’ water is actually tributary to Stout Creek, not Cherry Creek, 2) the Dills’ predecessors had been using that spring water since 1903, six years before the 1909 decree, and 3) the Dills were therefore “entitled to a decree for 0.46 cfs absolute and 0.54 cfs conditional, for irrigation and domestic purposes.” Yamasaki appealed that ruling leading to this current Supreme Court case, questioning whether the Water Court was correct in determining that “the Campbell Ditch water rights have no legally enforceable right to the springs.”

Water Rights in Colorado

As a brief overview of Colorado water doctrine, a water decree does not confer a right but rather “confirms a pre-existing water right.” Shirolav. Turkey Canon Ranch Ltd. Liab. Co., 937 P.2d 739, 748 (Colo. 1997). Critically, a water right “is not legally enforceable until it is adjudicated.” Id. at 749. A decree is then first reviewed by analyzing its plain language, and extrinsic evidence may only be introduced if it is ambiguous. Select Energy Servs. LLC v. K-LOW LLC, 394 P.3d 695, 698 (Colo. 2017). That plain language must “measure, limit and define both the nature and extent” of the water right,” including such essential elements as “priority, location of diversion at the source of supply, and amount of water for application to beneficial uses.” Orchard City Irr. Dist. v. Whitten, 361 P.2d 130, 135-36 (Colo. 1961); Empire Lodge Homeowners’ Ass’n. v. Moyer, 39 P.3d 1139, 1148 (Colo. 2001). Perhaps the most critical statement in regards to this case: a water right’s priority is “the most important stick in the water rights bundle.” Empire Lodge, 39 P. 3d at 1148.

The Colorado Supreme Court’s Decision

In the present case, both parties agreed that the 1909 decree was clear and unambiguous, therefore the analysis should be limited to the plain language of the decree. Agreeing with the Water Court, the Supreme Court noted that the 1909 decree lacks “typical decree language” and “is wholly lacking in indicia of enforceability” regarding the springs. Although water rights were governed by a different statutory scheme in 1909, the statutes then still made clear that “adjudication was required in order to obtain the benefits of priorityadministration.”Id. at 1149 (emphasis added by Colorado Supreme Court). Therefore, the Water Court reasoned, the Campbell Ditch’s entitlement to the spring water:

“. . .cannot be deemed an adjudicated water right that can be enforced or administered against other adjudicate water rights.”

On appeal, Yamasaki countered this finding, arguing that the springs’ water is merely supplemental to Cherry Creek, and therefore a separate water right was never necessary for the springs because that water was tied to the clearly adjudicated Campbell Ditch claims on Cherry Creek. To make this argument, Yamasaki relied on the 1909 language that the springs were “adjudged.” Importantly, the 1909 decree discussed the springs in a stand-alone paragraph (separate from the Cherry Creek water rights) starting with the phrase “And it is further adjudged.” This distinction mattered, the Supreme Court ruled, because clearly something was different in the two water rights to necessitate two separate distinctions.

Further, and perhaps more pertinent, “that something was ‘adjudged’ is not what matters most to use; it’s whatwas ‘adjudged.’” Even if the 1909 decree adjudged some right to the springs on behalf of the Campbell Ditch, it was lacking a priority number, appropriation date, and quantification information and therefore fell well short of anything that could be called an adjudicated water right.

As an aside, the Court noted that Yamasaki tried to raise claims of extrinsic evidence. For the reasons discussed above, the Court held that that evidence not appropriate (the decree was unambiguous) but that even if it were admissible, the evidence would support the Dills’ claims.

Conclusion and Implications

In sum, the Supreme Court doubled down on the idea that a priority date, among other pertinent information, is the “most important stick in the water rights bundle.” Any court decision lacking this critical indicia of enforceability is therefore moot when a party attempts to enforce a claim against other water rights users. Therefore Yamasaki “does not have an adjudicated water right in the springs; instead it has ‘an unenforceable entitlement to water from the springs when the two [Cherry Creek] water rights are not fully satisfied.’” The Dills’ spring water rights were consequently adjudicated, dating back to 1903, and they now have the superior claims to the springs with respect to Yamasaki.

(Paul Noto, John Sittler)