Harrison v. Simpson
2012 CO 35
| Colo. | 2012Background
- Harrison, as personal representative and trustee, appealed two water-right rulings from the Water Court in Division No. 2 involving a 1.04 cfs Mexican Ditch right.
- The water court dismissed Harrison's change-in-point-of-diversion application for failure to prove historic use of the right.
- In the related protest concerning abandonment, the water court granted the Engineers’ motion for abandonment as the stipulated remedy for failing to prove historic use.
- A stipulation dated May 31, 2006 required Protestants to file a change application reflecting historic use or face abandonment; protestants allegedly complied with the filing date.
- Harrison challenged both rulings directly to the Colorado Supreme Court, arguing the change was inappropriate and the abandonment remedy was improper.
- The Supreme Court held that failure to prove historic use does not automatically abandon the right, and that the abandonment order based on the stipulation must be reversed, while the dismissal of the change application was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to prove historic use justifies denying a change | Harrison argued Flasche-created exception applies to historic use. | Engineers contended no exception; failure equates to no change | Change denied; no constitutional taking |
| Whether failure to prove historic use constitutes abandonment | Harrison did not stipulate abandonment as a consequence of failure. | Engineers asserted abandonment under stipulation for failure to reflect historic use | Abandonment not proper; reversal required for abandonment |
| Whether the stipulation mandating abandonment was interpreted correctly | Stipulation required timely change reflecting historic use; abandonment not automatic | Stipulation allowed abandonment as remedy for failure to succeed in change | Stipulation must be interpreted consistent with its terms; abandonment reversed |
Key Cases Cited
- State Eng'r v. Bradley, 53 P.3d 1165 (Colorado Supreme Court 2002) (historic use limits on change right; not enlargement)
- Williams v. Midway Ranches Prop. Owners Ass'n., Inc., 938 P.2d 515 (Colorado Supreme Court 1997) (historic use as a measure for change)
- Flasche v. Westcolo Co., 149 P.2d 817 (Colorado Supreme Court 1944) (representative period for historic use; prior doctrine context)
- Kobobel v. Colorado Dept. of Natural Res., 249 P.3d 1127 (Colorado Supreme Court 2011) (rationing of water rights as usufructuary; not absolute)
- Santa Fe Trail Ranches v. Simpson, 990 P.2d 46 (Colorado Supreme Court 1999) (historic use and change in point of diversion principles)
- Cherokee Metro. Dist. v. Upper Black Squirrel Creek Designated Ground Water Mgmt. Dist., 247 P.3d 567 (Colorado Supreme Court 2011) (contractual goals in stipulations; interpretation governs outcomes)
- City of Golden v. Simpson, 83 P.3d 87 (Colorado Supreme Court 2004) (interpretation of stipulations in water-right matters)
- Trail's End Ranch, L.L.C. v. Colorado Div. of Water Res., 91 P.3d 1058 (Colorado Supreme Court 2004) (change in point of diversion; proof of historic use required)