May 22, 2013

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Colorado Supreme Court: Adverse Possession of Interest in Water Right Affirmed but Water Court Order Reversed In Part for Reconstruction of Easement to Ensure Water Rights Respected

December 4, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Archuleta v. Gomez on Monday, December 3, 2012.

Water Law—Adverse Possession of Legal Interest in Water—Enlargement of Consumptive Use—Injunction—Costs—CRCP 54(d)—Attorney Fees—CRS § 13-17-102(4).

This adverse possession dispute is between neighboring property owners—Ralph Archuleta  and Theodore Gomez—over legal interests in water and easement rights for three ditches diverting water from the Huerfano River in the Arkansas River Basin. The Archuleta Ditch extends across Gomez’s upper (westernmost) parcel of irrigated land but does not reach Gomez’s nonadjacent lower parcel or Archuleta’s parcel, which lies immediately to the east of Gomez’s lower parcel. Manzanares Ditch No. 1 cuts across the southeastern corner of Gomez’s lower parcel and the southern part of Archuleta’s parcel. Manzanares Ditch No. 2 runs across the northern part of Gomez’s lower parcel and previously extended to the northern part of Archuleta’s adjoining parcel until Gomez plowed it under, severing the connection to Archuleta’s property.

The Supreme Court affirmed the judgment of the water court in part, concluding that (1) Gomez adversely possessed Archuleta’s legal interests in the Archuleta Ditch and Manzanares Ditch No. 1; (2) awarding costs to Gomez was within the trial court’s discretion under CRCP 54(d); and (3) each party was responsible for its own attorney fees because the water court could reasonably find that Archuleta’s position in the litigation was not substantially frivolous, groundless, or vexatious pursuant to CRS § 13-17-102(4). Because Gomez wrongfully interfered with Archuleta’s water and easement rights for Manzanares Ditch No. 2 and enlarged the use of that ditch’s water, the Court reversed the water court’s judgment in part, directing it to enter an injunction for reconstruction of Manzanares Ditch No. 2 and an easement across the northern part of Gomez’s lower parcel to Archuleta’s adjoining parcel, so that Archuleta will receive the flow of water his legal interest in this ditch entitles him to divert.

Summary and full case available here.

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Tenth Circuit: Owner of Oil and Gas Leasehold Rights Can Validly Grant Permission Authorizing Another to Conduct Seismic Exploration of a Mineral Estate

October 16, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Kimzey vs. Flamingo Seismic on Monday, October 15, 2012.

Plaintiffs own surface estates in Oklahoma. Defendant is a company engaged in geophysical data services for the oil and gas industry. Owners of undivided interests in the oil and gas and/or mineral leaseholds underlying Plaintiffs’ lands granted permission to Defendant to conduct seismic exploration. Plaintiffs argued that the owners of the leaseholds had no right to grant Defendant permission to enter the properties, and that such permission was further invalid because the seismic exploration did not benefit the mineral estate. In granting Defendant’s summary judgment motion, the district court noted that it is well-established under Oklahoma law that an owner of mineral interests and/or oil and  gas leasehold rights can validly grant a permit authorizing another person to conduct  seismic exploration of a mineral estate. The district court further found that there was no support in the case law for Plaintiffs’ assertion that there must be a benefit to the mineral estate in order for an owner to have authority to assign his right to conduct seismic operations. The district awarded also Defendant $71,560 in attorney’s fees.

The Tenth Circuit agreed with the district court that  Oklahoma law clearly permits owners of mineral estates to grant access to the surface property in order to conduct seismic exploration. In Oklahoma, the owner of a mineral interest has the right to enter the land to explore for oil and gas. As to attorneys’ fees, after establishing jurisdiction, the Tenth Circuit found no abuse of discretion by the district court in its award of attorneys’ fees. District court’s grant of Defendant’s summary judgment motion and award of attorneys’ fees AFFIRMED.

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Colorado Supreme Court: General Assembly Did Not Grant Condemnation Authority to Companies to Construct Petroleum Pipelines

May 21, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Larson v. Sinclair Transportation Co. on May 21, 2012.

Real Property—Eminent Domain—Condemnation.

The Supreme Court held that the Colorado General Assembly did not grant, either expressly or by clear implication, condemnation authority to companies to construct petroleum pipelines. Accordingly, Sinclair Transportation Company was not entitled, under CRS § 38-5-105, to immediate possession of easements for the construction of its gasoline pipeline. The judgment of the court of appeals was reversed.

Summary and full case available here.

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Tenth Circuit: Statute of Limitations for Government Easement Tolled Well in Advance of Plaintiff’s Lawsuit

March 5, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in George v. United States on Monday, March 5, 2012.

Plaintiff Ann George wanted to build a fence across her property, but the fence blocked a federal easement road accessing the Gila National Forest. The government objected to the fence based on federal regulations. In 2009, Ms. George filed a quiet title action to build the fence. The District Court ruled in favor of the government, holding that the statute of limitations had run on plaintiff’s claim. Plaintiff appealed.

A quiet title action has a statute of limitations of 12 years, and begins to run when “the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” 28 U.S.C. § 2409a(g). The Secretary of Agriculture published regulations in the Federal Register in 1977 prohibiting anyone from “placing . . . [a] fence . . . without a permit” anywhere in the “National Forest System” or on its “[f]orest development road[s] or trail[s].” 36 C.F.R. §§ 261.10(a); 261.1(a) (1977). Publishing a regulation in the Federal Register must be considered “sufficient to give notice of [its] contents” to “a person subject to or affected by it.” 44 U.S.C. § 1507.

The undisputed facts established that Mr. Hamilton, plaintiff’s predecessor in interest, reached an agreement with the federal government in 1979, in part establishing the easement road across which plaintiff wished to build a fence. Therefore, the statute of limitations began to run in 1979, when Mr. Hamilton “knew or should have known” about the regulations that had been published in 1977 prohibiting the construction of a fence on a forest road. Therefore, in 2009, plaintiff brought her claim 18 years too late.

The case was not decided on the merits. The court’s ruling had only to do with the statute of limitations. The judgment was affirmed.

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