McComb, Staci A.

English

University of Denver

Water Law Review Volume 5 Issue 2 Article 51 1-1-2002 Strole v. Guymon, 37 P.3d 529 (Colo. Ct. App. 2001) Staci A. McComb Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Staci A. McComb, Court Report, Strole v. Guymon, 37 P.3d 529 (Colo. Ct. App. 2001), 5 U. Denv. Water L. Rev. 613 (2002). 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 REPORTSresulting.The court found that Empire Lodge's out-of-priority diversion,required, but did not have a decreed water right. Empire Lodge reliedon a right to divert via a State Engineer approved temporaryaugmentation plan. However, the court determined that water courts,not the State Engineer, have the sole authority to approveaugmentation plans. With no water right, Empire Lodge lackedstanding to assert either its futile call argument or its enlargementclaim. On the other hand, since the Moyers possessed a decreed waterright, they had standing to assert their counter claim.In Empire Lodge's appeal to the Water Court's injunction, itargued that the Moyers did not prove injury by Empire Lodge'sdiversion. The court stated, first, there was a presumption of injuryand second, the Moyers provided actual proof of injury. The courtfurther found that Empire Lodge's substitute supply plan was not anexchange because the replacement source entered the river systembelow the Moyer's diversion point. The court clarified that theinjunction had the effect of directing Empire Lodge to obtain a courtapproval for the out-of-priority diversion. Additionally, the courtstated that the injunction did not inhibit Empire Lodge's ability tostore water under "free river" conditions, and it could appropriateunappropriated water. Thus, the court held the injunction enjoinedEmpire Lodge's out-of-priority diversions that required a decreedaugmentation plan authorizing them to do so. The court affirmed theWater Court's judgment.Holly KirsnerStrole v. Guymon, 37 P.3d 529 (Colo. Ct. App. 2001) (holding an oralwater rotation scheme unenforceable; a court may limit the use of apre-existing ditch to resolve an equitable dispute).The Stroles owned property directly north of the Guymon's. Eachparty held water rights from the Uncompaghre Valley Water UsersAssociation; the Stroles maintained an interest of .17 cfs for their 8.6shares of irrigation water, and the Guymon's maintained an interest of.22 cfs or 2.8 shares at 100 percent. There were two ditches involved,the eastern ditch, and the western ditch. Each party's water enteredthe Guymon's property through the eastern ditch on the southeasterncorner of their property. Starting in 1979, when the Stroles purchasedtheir property, they retained an agreement with the Guymon'spredecessor (the Guymon's purchased their property in 1995). Assuch, the parties had rotated their water shares; the Guymon's usedthe party's combined water one half of the time, and the Stroles usedthe combined water the other half of the time. Because of the contourof the land and the middle ditch, the Price ditch, it was imperative theStroles received the combined water for their hay crop. However, in1999, the Guymons decided to discontinue the water rotationarrangement.Issue 2WATER LAW REVIEWAs a result, the Stroles filed suit alleging the Guymons interferedwith their water rights, and obtained a preliminary injunction thatallowed for their continued use of the water rotation agreement. Thetrial court held the Stroles maintained an easement over the Guymon'sproperty, but the Stroles had no right to impose a water rotationsystem over the Guymons. Thus, the trial court ordered the Strolesreceive all of their water through the eastern ditch; a diversion splitterbox be installed on the Guymon's property to ensure each partyreceived the proper allocation of water; a flume system be installed onthe Strole's property easing the water flow from the eastern ditch tothe western portion of the Strole's property; and, finally, all partiesshare the cost based on their water allocation.The Stroles appealed claiming the trial court erred in concludingthere lacks a contractual basis to impose a water rotation system. Theappellate court concluded a water rotation agreement does not defeata claim of continuous and exclusive possession with respect to theadverse possession of water rights, and thus the trial court did not err.The Stroles further claimed the trial court erred by severely limitingtheir right to use the western ditch based on a balancing of equitiesapproach to easements, and their long existing use of the ditch shouldhave allowed them its continued use. The trial court determined theStroles maintained only an easement over the eastern ditch, howeverthe Guynons submitted two easements existed, ones over the easternand western ditches. The appellate court concluded the trial courtadequately weighed all the evidence and provided an adequateremedy, and thus did not abuse its discretion. Furthermore, theappellate court concluded a court may limit the use of a pre-existingditch in order to resolve a dispute equitably. Lastly, the Strolesclaimed the Guymons must bear the financial burden of building thenew irrigation system, and the Guymons appealed claiming theyshould not bear any of the financial burden. However, the appellatecourt held the trial court fashioned an equitable and fair remedy, itdid not abuse its discretion, and each party must share the cost.Finally, the Guymons maintained the preliminary injunction allowingthe Stroles continued use of the rotation scheme should be dissolved.The appellate court held that the injunction remained in effect untilthe new irrigation system was completely installed.Staci A. McCombMount Emmons Mining Co. v. Crested Butte, 40 P.3d 1255 (Colo.2002) (reversing the water court's denial of Mount Emmons MiningCompany's application for a conditional water right by determiningthat a beneficiary of a subordination agreement is not required tosatisfy the water availability test).Mount Emmons Mining Company ("Mount Emmons") filed anapplication for a conditional water right in 1988. Mount Emmonsplanned to use water from the tributaries of the Gunnison River aboveVolume 5

Strole v. Guymon, 37 P.3d 529 (Colo. Ct. App. 2001)

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Strole v. Guymon, 37 P.3d 529 (Colo. Ct. App. 2001)

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