Colorado Supreme Court Oral Arguments: November

by Julia Cardi

Concerning the Application for Water Rights of Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce in Fremont County

  • Argued Nov. 13
  • Case Type: Water court
  • Arguing for Petitioner: David Shohet, Monson Cummins Shohet, for appellant Yamasaki Ring, LLC
  • Arguing for Respondent: Sarah Klahn, Somach Simmons & Dunn, for appellees Donald & Cathie Dill

ISSUE

Whether the water court erred when it ruled a decree given in 1909 awarded the Campbell Ditch water rights “unenforceable entitlement” to the whole water flow from a series of springs when diversions from Cherry Creek don’t fully satisfy those rights. As a result, the court ruled the Campbell Ditch water rights do not have a legally enforceable right to the springs against any other water right holder. The appeal consolidates two cases presenting identical issues.

BACKGROUND

The water rights at issue were allocated by the Fremont County District Court in 1909. W.S. Horton received 2.34 cubic feet per second with an 1880 priority date, and an extra 2.3 cubic feet per second with an 1890 priority date for the irrigation of land Horton owned. The decree also states the Campell Ditch is entitled to conduct and receive water from a group of adjacent springs.

PETITIONER

Key Dialogue

Shohet: “When you read all of the language together in the decree, when it says, ‘It is further adjudged that the Campbell Ditch is entitled to these springs,’ then the natural extension of that is that the Campbell Ditch water rights … have an entitlement to these springs.”

Justice Melissa Hart: “To what from these springs? All the water at all times?”

RESPONDENT

Key Dialogue

Klahn: “This is the first decree that adjudicated the water rights in the springs.”

Hart: “What do you make of the word ‘adjudged’ in the third paragraph of the 1909 order?”

Klahn: “I think that ‘adjudged’ is a way for a court to say, ‘I’m finding this.’ I don’t think it’s a magic word that gives any more or less meaning to what follows it in terms of giving content to that.”

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