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Mike & Jim Kruse Partnership v. Cotton.

2021 CO 6. No. 20SA32. Water Law–Water Decree Interpretation—Extrinsic Evidence.

January 25, 2021


A partnership filed an application with the water court asking it to interpret a 1933 water decree as assigning certain creek water to a ditch. The water court relied on a 1936 aerial photograph to find that the decree is ambiguous as to whether the creek water is a decreed source. To resolve the ambiguity, the water court relied on further evidence extrinsic to the 1933 proceedings. Ultimately, the water court concluded that the water at issue is decreed to the ditch.

The Supreme Court identified some tension in its jurisprudence on decree interpretation but did not resolve that tension because the three available approaches produce the same outcome in this case. Whether the Court examined just the text of the decree, or the decree plus the 1933 testimony and statements of claim, or the decree and all the materials from the 1933 proceedings, the results are identical: The creek water at issue is not decreed to the ditch. Further, under any of the possible methods of decree interpretation, evidence extrinsic to the original proceedings is admissible only to resolve an ambiguity, not to create one. Therefore, the water court erred in relying on the 1936 photograph to find the decree ambiguous.

The water court’s order was reversed and the case was remanded for further proceedings.

Official Colorado Supreme Court proceedings can be found at the Colorado Supreme Court website.

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