Supreme Court Throws Out Photo in Water Case
For a ditch in the San Luis Valley, vague language and aerial photograph bring up questions

by Avery Martinez

History often plays a role in water rights cases, and many tools are used for determining that history. But for the history of the Rocky Hill Seepage and Overflow Ditch, located in the San Luis Valley, what historic tools can be used in determining water rights isn’t cut and dry.

The case, Mike and Jim Kruse Partnership v. Craig Cotten, Division Engineer, Water Division 3, dealt with the question of whether water flowing into an irrigation ditch owned by the partnership was identified by the water court nearly 90 years ago. The Colorado Supreme Court on Jan. 25 reversed the decision of the lower court and effectively stopped the partnership from using an irrigation ditch. The court also eliminated the use of a 1936 photograph as evidence. The photograph was a large part of the water court’s determination of who owned the water rights, but for the Supreme Court, that photo was .

The use of era photos in water cases are “absolutely” common, according to Steve Bushong, of Porzak Browning & Bushong and the ditch owner’s counsel. Testimonies, statements of claim, maps and filing statements are routinely used as evidence, and Bushong says he often uses aerial photos when he’s lucky enough to find “old enough versions.”

The aerial photo in question was taken three years after a 1933 water court decree surrounding the ditch and allows the viewer to see where the ditch was built, according to Bushong. While the court in 1933 may not have had the photograph, “it sure gives context to the testimony and decree in 1933 and the intent of the appropriators.” Both the 1936 photo, and a second photo taken in 1941, were given as joint exhibits by both parties in case. The 1941 photo was taken in a wet year and more clearly shows some of the water sources involved in the case.

This complete article appears in the Feb. 1 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.