Colorado § 37-92-306 - Priorities junior to prior awards - when.

§ 37-92-306. Priorities junior to prior awards - when.

With respect to each division described in section 37-92-201, the priority date awarded for water rights or conditional water rights adjudged and decreed on applications for a determination of the amount and priority thereof filed in such division during each calendar year shall establish the relative priority among other water rights or conditional water rights awarded on such applications filed in that calendar year; but such water rights or conditional water rights shall be junior to all water rights or conditional water rights awarded on such applications filed in any previous calendar year and shall also be junior to all priorities awarded in decrees entered prior to June 7, 1969, or decrees entered in proceedings which were pending on such date; except that, with respect to water rights which are diverted by means of wells, the priorities for which have not been established or sought in any such decree or proceeding, if the person claiming such a water right files an application for determination of water right and priority not later than July 1, 1972, and such application is approved and confirmed, such water right, subject to the provisions of section 37-92-305 (1), shall be given a priority date as of the date of actual appropriation and shall not be junior to other priorities by reason of the foregoing provision.

Source: L. 69: p. 1212, § 1. C.R.S. 1963: § 148-21-22. L. 71: p. 1333, § 1.

ANNOTATION

Law reviews. For article, "Adjudication of Indian and Federal Water Rights in the Federal Courts", see 46 U. Colo. L. Rev. 555 (1974-75). For comment on determining the priority of federal reserved rights relative to the water rights of state appropriators, see 48 U. Colo. L. Rev. 547 (1977). For article, "The Effect of Water Law on the Development of Oil Shale", see 58 Den. L.J. 751 (1981). For article, "Water Rights — How to Avoid Getting in Over Your Head", see 11 Colo. Law. 2143 (1982). For article, "Colorado's Law of ‘Underground Water’: A Look at the South Platte Basin and Beyond", see 59 U. Colo. L. Rev. 579 (1988).

Annotator's note. Although there is no section similar to § 37-92-306 in the former Colorado codes, relevant cases construing repealed § 147-9-25, CRS 53, CSA, C. 90, §§ 189(24) and 195, and laws antecedent thereto, have been included in the annotations to this section.

This section sets up the priority system of "first in time-first in right" in Colorado. Se. Colo. Water Conservancy Dist. v. Shelton Farms, Inc., 187 Colo. 181, 529 P.2d 1321 (1974).

Priority of appropriation shall give the better right as between those using the water for the same purpose. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

The rights of a prior appropriator from a stream cannot be impaired by subsequent appropriations from its tributaries. Strickler v. City of Colo. Springs, 16 Colo. 61, 26 P. 313; McClellan v. Hurdle, 3 Colo. App. 430, 33 P. 280 (1893); Bruening v. Dorr, 23 Colo. 195, 47 P. 290 (1896); Platt Valley Irrigation Co. v. Buckers Irrigation, Milling & Imp. Co., 25 Colo. 77, 53 P. 334 (1898); Buckers Irrigation, Milling & Implement Co. v. Farmers' Independent Ditch Co., 31 Colo. 62, 72 P. 49 (1903); Clark v. Ashley, 34 Colo. 285, 82 P. 588 (1905); La Jara Creamery & Live Stock Ass'n v. Hansen, 35 Colo. 105, 83 P. 644 (1905); In re German Ditch & Reservoir Co., 56 Colo. 252, 139 P. 2 (1914).

Postponement doctrine provides that water rights adjudicated in a previous decree are senior to water rights adjudicated in a subsequent decree on the same stream, regardless of their dates of appropriation. Because the North and South Forks of the South Platte River are separated by a high mountain range, there can be no conflict between the North and South Fork users, and therefore it would be improper to use the postponement doctrine to treat a 1913 adjudication of North Fork rights as supplemental to an 1889 adjudication of South Fork water rights. S. Adams County v. Broe Land Co., 812 P.2d 1161 (Colo. 1991); City of Denver v. City of Englewood, 826 P.2d 1266 (Colo. 1992).

The postponement doctrine governs the administration of water rights adjudicated in different decrees or applied for in different years. The doctrine does not affect the actual priority dates of such water rights. City of Denver v. City of Englewood, 826 P.2d 1266 (Colo. 1992).

The postponement doctrine applies to two or more water rights concerning sections of the same ditch that derive from the same common source. Unlike discrete tributaries of a river separated by a mountain range, two sections of a ditch separated by a driveway are from a common source, thus warranting application of the postponement doctrine, especially given the fact that the water in the ditch routinely overflowed the driveway and rejoined the ditch downstream. Water Rights of Huffaker, 2019 CO 28, 439 P.3d 1224.

Postponement doctrine does not apply to vested water rights in exempt "602" wells. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).

All water decrees of any kind are bound to the call of the river, subject to any specific exemptions found within the law. Se. Colo. Water Conservancy Dist. v. Shelton Farms, Inc., 187 Colo. 181, 529 P.2d 1321 (1974).

Salvaged waters are subject to call by prior appropriators. Se. Colo. Water Conservancy Dist. v. Shelton Farms, Inc., 187 Colo. 181, 529 P.2d 1321 (1974).

Developed waters are free from the river call and are not junior to prior decrees. Se. Colo. Water Conservancy Dist. v. Shelton Farms, Inc., 187 Colo. 181, 529 P.2d 1321 (1974).

By contract a person can make his priority inferior to another. In re Application for Water Rights of Ft. Lyon Canal Co., 184 Colo. 219, 519 P.2d 954 (1974).

Valid adjudication decrees in the same water district take rank and precedence in order of time of rendition, the doctrine being, first in order of time, first in priority of right. Huerfano Valley Ditch & Reservoir Co. v. Hinderlider, 81 Colo. 468, 256 P. 305 (1927).

Water court properly considered the more than seventy years of consistent administration by state water officials of the North Fork of the South Platte River water rights according to their date of appropriation. S. Adams County v. Broe Land Co., 812 P.2d 1161 (Colo. 1991).

Decreed well rights are superior to undecreed diversions of water as well as being superior to junior priority rights. SRJ I Venture v. Smith Cattle, Inc., 820 P.2d 341 (Colo. 1991).

A judicial decree confirming a conditional or absolute water right is not the source of the right but simply a determination that the right has been established. Abandonment of a right precludes reliance on the acts and intent that gave rise to that right as a basis for establishing a new right. Purgatoire River Water Conservancy v. Witte, 859 P.2d 825 (Colo. 1993).

Parties claiming priorities of right to the use of water under a decree which adopts and confirms an earlier decree may not assert superior rights to those awarded in the earlier decree. Huerfano Valley Ditch & Reservoir Co. v. Hinderlider, 81 Colo. 468, 256 P. 305 (1927).

Under Colorado law there can be no apportionment of available supplies of water in times of short supply, instead, junior appropriators may be shut off if necessary to supply the priorities of senior appropriators, except where juniors who are so situated that shutting them down would not result in improving the water supply of senior appropriators. City of Colo. Springs v. Bender, 148 Colo. 458, 366 P.2d 552 (1961).

The right to use in times of scarcity a definite volume of water, in a fixed order or priority, from the natural streams, is one of the most valuable property rights known to the law of this state, which in no way depends on the place of its application, and is not confined to the land upon which the right came into existence; but may be sold separate from the land and changed from one place to another. City of Colo. Springs v. Yust, 126 Colo. 289, 249 P.2d 151 (1952).

A claim for mere speculative purposes by parties having no expectation themselves of actually constructing works and applying the waters to some useful purpose gives them no rights against subsequent appropriations made in good faith. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

When an appropriation has been diverted, used, and returned, it becomes again a part of the stream in which junior appropriators below acquire a vested right. City & County of Denver v. Colo. Land & Live Stock Co., 86 Colo. 191, 279 P. 46 (1929).

Withdrawal of water must be orderly, and to be orderly it must come under the priority system. Se. Colo. Water Conservancy Dist. v. Shelton Farms, Inc., 187 Colo. 181, 529 P.2d 1321 (1974).

Federal reserved water rights. The United States possesses reserved rights for its federal reservations in Colorado in waters unappropriated upon the date of reservation of the federal lands from the public domain, and in the amount necessary to achieve the primary purposes of the reservations. United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982); Park Ctr. Water Dist. v. United States, 781 P.2d 90 (Colo. 1989).

Federal rights determined by Colorado law. Colorado law governing the determination of water rights is properly applied as the rule of decision by which the courts will determine the contours of the reserved rights asserted by the United States. United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982); United States v. Bell, 724 P.2d 631 (Colo. 1986); Park Ctr. Water Dist. v. United States, 781 P.2d 90 (Colo. 1989).

Seniority of federal rights. The federal government's position is similar to the holder of a conditional senior water right who can step ahead of junior appropriators causing a diminution of the amount of water available for diversion. Navajo Dev. Co. v. Sanderson, 655 P.2d 1374 (Colo. 1982).

For extent of federal reserved water rights on different categories of public lands, see United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982).

For effect of federal reserved water rights, see Navajo Dev. Co. v. Sanderson, 655 P.2d 1374 (Colo. 1982).

Postponement doctrine applied to United States reserved water right application amendment claiming water from the mainstem of the Colorado River. United States v. Bell, 724 P.2d 631 (Colo. 1986).

Applied in Kuiper v. Atchison, T&SF Ry., 195 Colo. 557, 581 P.2d 293 (1978); State Dept. of Natural Res. v. Sw. Colo. Water Conservation Dist., 671 P.2d 1294 (Colo. 1983); Bd. of Comm'rs v. Crystal Creek Homeowner's Ass'n, 14 P.3d 325 (Colo. 2000).