April 17, 2009

Judgment on Elk Creek water gives neither party a right
Will-O-Wisp and Dunwoodys both ineligible for 1 cfs of water

By Lynda James

AREA OF CONTROVERSY This map, obtained by The Flume in March 2007, shows some of the area of controversy with respect to Elk Creek water. The dot-dash line is the 1913 survey of the decreed Glasmann ditch. (Courtesy Map provided by Robert Nevadomski)

“Use it or lose it,” the number one rule in water rights, has put one cubic foot per second of Elk Creek water back in the stream as free water, not belonging to either of the two parties that claimed it.

The decision on the 1913 Glasmann Ditch water right was handed down by Division One Water Court Judge Roger Klein on April 3. The water right had an appropriation date of 1885.

A three-day hearing was held in November 2008 in which both parties — Drayton and Vera Dunwoody on the one hand and the Will-O-Wisp Metropolitan District on the other — argued their cases as to why the water right belonged to them.

Dunwoodys bring case

The Dunwoodys brought the case against the district in

March 2007 in water court to obtain a quiet title to the water right. They claimed their chain of title through land deeds of the Elk Falls Ranch property they purchased recently from Elk Falls Ranch Development Co. — and dating back to original owner Antone Glasmann — included the water.

The original ranch straddled Park and Jefferson counties north of Shaffers Crossing and U.S.. 285. Glasmann’s son-in- law adjudicated the water right in 1913.

The actual decree shows the head gate on land that, became the Scott Ranch- in the southwest quarter of Section 25, Township 6 South, Range 72 West. The ditch was used for irrigation on the Glasmann land in the southeast and northeast quarters of the same section, according to the decree.

Will-O-Wisp counters

The metro district counterclaimed to quiet the title through a chain of land and water deeds from North Fork Associates, which bought it from Woodside Ltd.

George Hurst. and Kenneth Cumming purchased portions of the William Schott Ranch in 1971 and developed Wood- side Park subdivision, which is north of Pine Junction, straddles Mount Evans Blvd. and is in both Jefferson and Park counties.

Before that, the ranch had belonged to the Schott family since 1915 and 1916.

At trial, Woodside developer Hurst testified that he understood the purchase from Schott included all water rights connected with the ranch, including the Glasmann Ditch water right.

The district •also claimed that the 1913 water right had been abandoned by Elk Falls Ranch Development Co. — the company that sold to the Dunwoodys — in the 1960s when irrigation was discontinued.

In support of an adverse possession claim by the district at trial, testimony was presented that Schott had used the Glasmann water right to irrigate since the late 1940s through the 1960s.

But irrigation records exist for only eight years between 1970 and 1980, mostly after Schott sold the ranch.

The district also claimed adverse possession of the water right based on a 1983 water decree that changed the water right from irrigation to augmentation water for evaporative losses from the Woodside Reservoir. The reservoir hasn’t been built yet.

Tanglewood Reserve

The reservoir is part of the district’s water supply plan that will supply water to future Tanglewood Reserve residents, just west of Pine Junction. Water will be provided by diverting water from Elk Creek using a junior water right decreed in the 1980s, called the Glasmann Ditch #2 water right.

In the 21-page judgment and decree of the water court, Judge Klein supported the Dunwoody claim of ownership by land deed of the 1913 decreed Glasmann ditch and water right because it was expressly listed in a 1920 deed to John Jensen, who bought the land from Glasmann’s son- in-law.

But Klein also supported the metro district’s claim that the water right had been abandoned when irrigation ceased by the Elk Falls Development Co. and it made no attempt to preserve the water right. Therefore, the Dunwoodys have no right to use the water, ruled the judge.

The judge denied the district’s quiet title claim because the Glasmann water right was never mentioned until 1981 in any deed conveying the Schott Ranch, which was first homesteaded by Charles Stockdale.

Klein denied the district’s claim of adverse possession because no state records exist proving the water was used’ adversely y Schott before it was abandoned. He stated that one can not claim a water right that no longer exists.

Even if it hadn’t been abandoned in the 1960s, the adverse possession claim could not stand because records showed use for less than the 1.8 years required by law to claim adverse possession.

Judge Klein also wrote in the judgment that the change in use of the Glasmann ditch water in the 1983 decree could not be counted toward the 18- year requirement because the decree was conditional. “The decree... did not constitute actual beneficial use... only an intent to put the water to beneficial use.”

Rights go to the stream

Since neither the Dunwoodys nor the metro district have a right to the water, it now officially belongs to the stream. But if any party wants to adjudicate the one cubic foot of water per second, the senior appropriation date is also gone. The water would become very junior, with an appropriation date in the year when a new decree is approved.

Dunwoody reaction

Vera Dunwoody told The Flume that she was happy that they had won two out of three of the claims in the case (the adverse possession and chain of title claims by the district).

“The water is back in the stream and that’s a benefit (to Elk Creek),” she said.

Dunwoody also added that if anyone sought a new decree for the 1 cubic foot per second of water, it would be junior to all other senior rights including an instream flow right. A reservation of water for instream use protects specific instream water uses, such as fish spawning or recreation.

According to the Colorado Water conservation Board’s Web site, that instream flow water right has an appropriation date of 1984 and requires 5 cfs remain in the stream for protection of the stream’s environment.

Will-O-Wisp reaction

Rick Angelica, president of the Will-O-Wisp metro district, agreed that any new water right would be too junior. “The water wouldn’t be worth going after,” he told The Flume.

Angelica said the district was happy with the judge’s decision. The decision would not affect its ability to provide water to Tanglewood or the augmentation plan for that water, he said.

Angelica said it would have little effect on the Woodside Reservoir (when it is built) except during dry times, when the reservoir could not be kept full with the junior 1983 Glasmann Ditch #2 water right. He said the senior right would have been used to top off the reservoir due to evaporation and keep it full.

Because the junior water right has the same diversion point on Elk Creek as the senior water right had, Angelica said the district’s real concern was how both water rights could have been monitored and managed if the Dunwoodys had won their claim to the 1913 water right.

The Flume asked Angelica if the district had any alternatives to augment the evaporative losses from the future reservoir.

He said it could not use the water from its well field, which is now supplying water to Will-O-Wisp residents for augmentation. The district’s water attorneys are now researching if the water decree requires augmentation for the Woodside Reservoir’s evaporative losses. “We will need to look at our options then,” he said.

Dan Drucker, president of the Center of Colorado Water Conservancy District, told The Flume: “With water resources so limited, the state has become stricter. Under current law, all builders of reservoirs and ponds must provide augmentation for the annual evaporative losses from the surface of any new reservoir or pond.”

If the law took affect before the district’s 1983 water decree, Drucker said, it would have to find augmentation water from somewhere if the reservoir is built.

The Center is currently building a reservoir south of US. 285 between Jefferson and Como in South Park. Drucker said the conservancy district was required to replace evaporative losses from the reservoir surface.

Angelica noted that Will-O-Wisp will look at its options.

“We don’t anticipate needing the reservoir in the near future. It will be based on when the houses (in Tanglewood) are built and the amount of water used,” he said: “There are a lot of options for water storage. Some would require augmentation and some wouldn’t.”

Angelica also said the district will not appeal Judge Klein’s April 3 order and judgment.

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