McComb, Staci A.

English

University of Denver

Water Law Review Volume 5 Issue 1 Article 36 9-1-2001 Farmers Reservoir & Irrigation Co. v. Consolidated Mutual Water Co., No. 00SA229 (Colo. Oct. 15, 2001) Staci A. McComb Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Staci A. McComb, Court Report, Farmers Reservoir & Irrigation Co. v. Consolidated Mutual Water Co., No. 00SA229 (Colo. Oct. 15, 2001), 5 U. Denv. Water L. Rev. 271 (2001). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSerred in automatically precluding evidence of lost future profits indetermining the applicable restoration costs. The court consideredseveral options to determine damages in a tort action. Ultimately, thecourt found the means of measuring damages flexible, and one thatwould vary with the particular circumstances of each case.Accordingly, the court remanded the case back to the trial court, notto require consideration of lost future profits, but because the trialcourt could not automatically preclude review of lost future profits.The court also reviewed the trial court's grant of summaryjudgment to Chowchilla on Santa Barbara's negligence claim. Inreversing the summary judgment decision, the court cited the trialcourt's failure to give a sufficient statement of reasons for granting themotion. The Code of Civil Procedure required the trial court tospecify the reasons for its determination in a written or oral order, andto specifically refer to the applicable supporting and opposingevidence. Here, although the trial court identified contradictionsbetween the declarations prepared for the motion and the testimonygiven in disposition, it failed to give written or oral documentation.Therefore, the court reversed the trial court's grant of summaryjudgment pertaining to the negligence claim.Christine EllisonCOLORADOFarmers Reservoir & Irrigation Co. v. Consolidated Mutual Water Co.,No. 00SA229 (Colo. Oct. 15, 2001) (holding historic consumptive usedeterminations non-reviewable under the retained jurisdictionprovision unless the case comes on appeal).Consolidated Mutual Water Co. ("Consolidated Mutual") originallydiverted water for irrigation purposes, but in the 1960s they beganusing the water for domestic and municipal purposes. They did notapply for a change of use application until 1991. This was Priority 12water transferred from the Lee, Stewart & Eskins Ditch ("LSE Ditch").In the 1960s, the Water Court allocated 287 acre-feet annually toGolden from the LSE Ditch. In 1993 proceedings before the WaterCourt, Golden relied on its expert Gary Thompson. He testified thatConsolidated Mutual received 124 acre-feet annually from the LSEDitch and an additional 302 acre-feet annually from the LSE juniorrights. The Water Court adopted the expert's calculations. No oneappealed the decision. Farmers Reservoir & Irrigation Co. ("Farmers")brought a second suit claiming that Golden consumed more waterthan allowed. The Water Court held and the Colorado SupremeCourt agreed that claim preclusion prohibited volumetric limits of the1960s change decrees. Finally, Farmers Reservoir filed petitionsrequesting the Water Court extend or invoke the period of retainedIssue IWATER LAW REVIEWjurisdiction.The Colorado Supreme Court in reviewing the Water Court'sdecision, looked to Colo. Rev. Stat. § 37-92-304(6) and determinedthat the General Assembly intended to preclude review of consumptiveuse determinations of the Water Court except through an appeal, andfurther intended the retained jurisdiction provision to address onlyinjurious effects resulting from placing the change of water rights oraugmentation plan into operation. The General assembly did notintend the retained jurisdiction provision to re-determine water courthistoric use determinations.This court looked to legislative history to determine the GeneralAssembly's intent. First, they looked to changes of water rights andaugmentation plans, and determined the retained jurisdictionprovision only applies to the Water Court's role in predicting futureinjurious effect and the measures to prevent injury, not to their fact-finding role for historic uses. Next, the court looked at the 1969 Actand its amendments. Initially, the Act allowed, but did not require thewater judge to include a two-year period for reconsideration. The1977 amendment required a retained jurisdiction provision, butallowed the water judge to determine its length. The 1981amendment extended the mandatory inclusion to retainedjurisdiction. Because the legislative history of the two amendmentspointed to potential conflicts and ambiguity, the court looked tolegislative hearings for further clarification. Based on these hearings,it was clear that the period of retained jurisdiction did not apply tohistoric consumptive use because evidentiary resolution was possible.The court then looked to case precedent and concluded that it wasconsistent with their construction of Colo. Rev. Stat. § 37-92-304(6).Finally, the court looked to the burdens of establishing non-injury andinjury. The court held that initially the persons seekingreconsideration bear the burden of proving injury, and then theburden shifts to the decree holder to prove non-injury.The court determined that because Consolidated Mutual did applyfor a change in use, did subject itself to volumetric limitations and didobtain a final judgment, the Water Court did not abuse its discretionin determining the amount of Priority 12 water allocated toConsolidated Mutual. Since no appeal was taken, the judgmentcannot be reviewed because the General Assembly did not create acontext for reviewing the adjudicated merits of consumptive usedeterminations the Water Court established. Farmers also contestedGolden's allocation. However, the court found the allocation toGolden non-reviewable because no one had appealed the decision. Inthe future, the Water Court must give effect to the methodology itused, based on the expert's testimony, to determine changes to theLSE Ditch based upon injury-producing effects in order to prevent anowner from enlarging its share of historic consumptive use.Staci A. McCombVolume 5

Farmers Reservoir & Irrigation Co. v. Consolidated Mutual Water Co., No. 00SA229 (Colo. Oct. 15, 2001)

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Farmers Reservoir & Irrigation Co. v. Consolidated Mutual Water Co., No. 00SA229 (Colo. Oct. 15, 2001)

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