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Empire Lodge Homeowners' Association v. Moyer

39 P.3d 1139 (2001)

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Empire Lodge Homeowners’ Association v. Moyer

Colorado Supreme Court

39 P.3d 1139 (2001)

Facts

Anne and Russell Moyer (defendants) owned a ranch on a creek tributary to the Arkansas River in Colorado with decreed water rights for irrigation. Empire Lodge Homeowners’ Association (ELHOA) (plaintiff) diverted water above the Moyers’ ranch to fill two ponds for fishing and recreation. While ELHOA filled the ponds, no water returned to the creek. ELHOA owned a right for irrigation and domestic use, but it was rarely “in priority” because it was junior to other rights in the overappropriated Arkansas Basin. Instead ELHOA relied on the state water engineer’s approval to fill its ponds out of priority. The engineer told ELHOA it needed an augmentation-plan decree from water court but continued periodically approving the pond-filling conditioned on ELHOA filing an application. The Moyers placed frequent calls on the creek to stop the pond-filling. After not filing an augmentation-plan application for 12 years, ELHOA sued in water court, invoking the futile-call doctrine and alleging the Moyers had enlarged their use and wasted water. The Moyers counterclaimed to stop the pond-filling, which the engineer testified lost water from evaporation and decreased the Arkansas River system. The water court dismissed ELHOA’s complaint and enjoined the pond-filling. ELHOA appealed.

Rule of Law

Issue

Holding and Reasoning (Hobbs, J.)

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