2012 COA 95
Colo. Ct. App.2012Background
- In 1990 the United States granted a conservation easement to Mesa Land Trust encumbering 140 acres in Mesa County and preserving all water rights at conveyance.
- The deed stated that all water rights held at the date of conveyance would remain with the land; the Big Creek mutual ditch shares are water rights.
- The Allens bought the property in 1993, subject to the 1990 Easement, and later attempted in 2007 to exempt the Big Creek shares from conveyance.
- Mesa Land Trust sought declaratory and injunctive relief for violating the easement by severing the water rights from the land; the trial court entered summary judgment for Mesa Land Trust and issued a permanent injunction.
- The central legal issues concern whether the 2008 amendments to conservation easement statutes apply retroactively, and whether the Big Creek shares were validly encumbered.
- The appellate court affirmed, holding the 2008 amendments were intended to clarify and apply retroactively to pre-existing easements, and that the 1990 Easement validly encumbered the Big Creek shares.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2008 amendment to the conservation easement statute applies retroactively. | Mesa Land Trust argues the amendment clarifies and applies retroactively. | Allens argue the amendment does not apply retroactively or changes existing law. | Yes; the amendment applies retroactively. |
| Whether the 60-day notice requirement for mutual ditch shares applies to pre-existing easements. | Mesa Land Trust contends notice is not retroactive to pre-existing easements. | Allens argue notice applies to all easements regardless of creation date. | Notice applies prospectively to easements created after 2008; not retroactively to pre-existing ones. |
| Whether mutual ditch shares are securities subject to UCC requirements. | UCC does not govern mutual ditch shares; real property law applies. | UCC applies to securities in the context of encumbrances. | UCC does not control; mutual ditch shares are real property interests. |
| Whether the 1990 Easement validly encumbered the Big Creek shares under pre-2003 law. | Pre-2003 statute allowed water rights to be encumbered in gross easements. | The 1990 Easement may not encumber water rights under prior law. | Valid encumbrance under the 1976 statute and 1990 conveyance. |
| Whether notice to Big Creek or its shareholders was required pre-conveyance. | Proper recording of the conservation easement provides constructive notice. | Shareholders must be notified before encumbrances attach. | Constructive notice via recordation suffices; no pre-conveyance notice to shareholders required. |
Key Cases Cited
- Powell v. City of Colorado Springs, 156 P.3d 461 (Colo. 2007) (intent of retroactivity clarified by statute interpretation)
- Academy of Charter Schs. v. Adams Cnty. Sch. Dist. No. 12, 181 P.3d 1129 (Colo. 2007) (clarifying vs. changing statute; retroactivity indicators)
- Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo. 2000) (retroactivity presumption and statutory interpretation)
- Vensor v. People, 151 P.3d 1274 (Colo. 2007) (legislative history as evidence of intent)
- People v. Rockwell, 125 P.3d 410 (Colo. 2005) (legislative intent and clarification of statutes)
- Great Western Sugar Co. v. Jackson Lake Reservoir & Irrigation Co., 681 P.2d 484 (Colo. 1984) (mutual ditch shares treated as real property interests)
- Jacobucci v. District Court, 189 Colo. 380 (Colo. 1975) (water rights conveyance and land ownership analysis)
- Hernandez v. People, 176 P.3d 746 (Colo. 2008) (legislative intent to avoid illogical results)