Frees v. TiddAnnotate this Case
This water case involving neighboring property owners in Saguache County presented an issue of first impression for the Supreme Court: may the land owner whose property is burdened by an easement across his or her property for a water ditch obtain a junior conditional water right at the headgate of that ditch for non-consumptive hydropower use of water that the neighbor is diverting from the stream under a senior water right for irrigation use through that headgate? Applying the no material injury, water availability, and maximum beneficial use principles of Colorado water law, in conjunction the decision in "Roaring Fork Club, L.P. v. St. Jude’s Co.," (36P.3d 1229 (2001)), the District Court for Water Division No. 3 issued a declaratory judgment and a conditional water right decree in the amount of 0.41 cubic feet per second ("cfs") with a 2010 priority for hydropower use to Charles and Barbara Tidd for diversion from Garner Creek at the headgate of Garner Creek Ditch No. 1. The Plaintiffs–Appellants, David L. Frees, George A. Frees, Delmer E. Frees, and Shirley A. Frees, asserted that the water court lacked authority to decree this water right over their objection. After review, the Supreme Court deferred to the water court's findings of fact and upheld its conclusions of law. Under the circumstances of this case, the Court held that the water court did not err in issuing a conditional decree for a non-consumptive hydropower use water right with a 2010 priority for 0.41 cfs diverted from Garner Creek through the headgate of Garner Creek Ditch No. 1.