Are Century-Old Water Rights Enough to Preserve Easement Rights?

The Supreme Court of Colorado determined whether the easement exists in Select Energy Services, LLC v. K-Low, LLC, (2017 CO 43).

Select Energy Services (“Select”) wants to run a water pipeline across an old irrigation ditch alongside the South Platte River. An easement arising from a water right associated with that ditch stands in its way. With that easement, K-LOW, LLC  (“K-LOW”) is trying to block Select’s pipeline as a trespass. However, K-LOW’s easement may no longer exist. Whether the easement exists will be determined by the underlying water right.

At issue are two water decrees: a 1914 decree establishing a right to divert water from the South Platte River that was then conveyed through the Sterling Drain and Seepage Ditch (“SD&SD”), and a 2014 decree relocating the point of diversion for that right from a headgate on the South Platte to a pump farther downstream. The 1914 decree changed hands over the years. Faith Tabernacle Church (“Faith”) was the last owner of the decree. It applied for and was granted the 2014 decree that changed the right’s surface diversion point from the headgate to the downriver pump. Faith quit-claimed the decree to K-LOW, granting K-LOW whatever interest and rights it retained in the ditch. Quit-claim deed in hand, K-LOW confronted Select about a pipeline the latter had laid across the ditch. Select declined to remove the pipeline, and K-LOW, relying on its easement, filed a trespass claim in the district court. Both parties requested dismissal, and Select re-filed in the water court. Select wanted a declaratory judgment as to whether the 2014 decree extinguished the right to divert water from the ditch. Select then moved for partial summary judgment on that determination. Neither party argued that a factual dispute precluded summary judgment, and instead, each introduced extrinsic evidence to support its interpretation of the 2014 decree. The court granted partial summary judgment to Select. K-LOW appealed.

The Supreme Court of Colorado examined the 2014 decree to determine whether it expressly recognized a right to divert water from the ditch. The Court looked to the decree’s plain language. The 2014 decree identifies a single point of diversion—the pump on the South Platte. It does not recognize a right to divert water from the ditch. If, as K-LOW asserted, the pump represented one of several diversion points, the decree would describe it as “a” point of diversion. The 2014 decree does neither. The decree is unambiguous. The Court concluded the decree did not include a right to divert water from the ditch at issue. The Supreme Court of Colorado affirmed the water court’s judgment.

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