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Colorado Supreme Court Opinions
May 31, 2011

No. 09SA133. Burlington Ditch, Reservoir and Land Co. v. Metro Wastewater Reclamation District.
Determination of Historical Consumptive Use of Water Rights—CRS § 37-92-305—Unlawful Enlargement of Water Rights—“One-Fill” Rule—Preclusive Effect of Water Court Orders and Decrees—New Structures and Points of Diversion.

Appellants Burlington Ditch, Reservoir and Land Company (Burlington), Farmers Reservoir and Irrigation Company (FRICO), United Water and Sanitation District (United), Henrylyn Irrigation District (Henrylyn), and East Cherry Creek Valley Water and Sanitation District (ECCV) challenged the order and decree of the water court regarding its determination of historical consumptive use of water rights, the effect of prior decrees and new structures related to the Burlington Canal, the application of the “one-fill” rule, and the impact of these decisions on appellants’ senior rights to use the waters of the South Platte River. 

This case arose from two applications seeking changes in points of diversion and storage of water rights, as well as changes from irrigation to municipal use for Burlington and FRICO water rights with 1885, 1908, and 1909 priority dates. These changes were precipitated by the United–ECCV Water Supply Project, aimed at providing a renewable source of water to replace Denver Basin groundwater on which ECCV previously relied.

To prevent an unlawful enlargement of the Burlington–FRICO water rights, the water court limited appellants’ 1885 Burlington direct flow water right to 200 cubic feet per second, historically diverted and used for irrigation above Barr Lake. Likewise, the 1885 Burlington storage right was limited to annual average reservoir releases of 5,456 acre-feet. The water court further determined that seepage gains into the Beebe Canal, water collected through the Barr Lake toe drains, and diversions at the Metro Pumps could not be given credit in the calculation of historical consumptive use. The court determined that historical releases from Barr Lake, rather than a pro rata share of the one-fill rule,constitute the proper measure of storage rights. The water court concluded that its system-wide analysis of historical consumptive use was not precluded by the orders and decrees issued in FRICO Case No. 54658 and Thornton Case No. 87CW107. The court imposed conditions to prevent injury to other water rights by the heretofore undecreed diversions via the Globeville Project. The Supreme Court upheld the water court's judgment and decree.

No. 09SC627. Lucht’s Concrete Pumping, Inc. v. Horner.
Continuing Employment of an At-Will Employee—Noncompetition Agreement.

The Supreme Court reversed the court of appeals’ decision finding that continued employment does not constitute adequate consideration for a noncompetition agreement. Forbearance of a legal right may serve as consideration. When an employer forbears from terminating an existing at-will employee, the employer is forbearing from exercising a legal right. Thus, continued employment of an at-will employee may constitute adequate consideration for a noncompetition agreement.

No. 09SC652. Townsend v. People.
Criminal Law—Escape.

The Supreme Court upheld the judgment of the court of appeals, affirming the conviction of petitioner Terry Townsend for escape by means of failing to remain within the extended terms of his confinement as established under his participation in an intensive supervision program (ISP) as a condition of his parole. The Court concluded that the trial court’sjury instructions did not include any reversible error and that the ISP escape statute is not unconstitutional either as applied to Townsend or generally under the separation of powers and non-delegation doctrines of the Colorado Constitution.

No. 09SC879. Day v. Johnson, MD.
Jury Instructions—Medical Malpractice—Exercise of Judgment.

The Supreme Court affirmed the court of appeals’ judgment. The Court held that the portion of Colorado Jury Instruction—Civil 15:4 (2009) stating that “[a]n exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent” accurately states Colorado law. The instruction does not impose a subjective standard of care on a physician whose exercise of judgment results in an unsuccessful outcome or does not immunize the physician from liability. Rather, it informs a jury that a bad outcome that results from a physician’s exercise of judgment does not by itself constitute negligence. The jury must look to the elemental negligence instruction and the objective standard of care instruction to determine whether the defendant was negligent.

No. 10SA361. People v. Klinck, Jr.
Custodial Interrogation—Miranda—Voluntariness of Statements.

The Supreme Court held that Wayne Klinck was not in custody for Miranda purposes during his initial interview with police, which took place on the porch of his girlfriend’s home. Thus, the trial court erred in suppressing the statements made during this interview.

The Court found that that Klinck’s statements to detectives during the five-hour jailhouse interrogation were voluntary. Despite their suppression from the prosecution’s case-in-chief, the statements are admissible at trial for impeachment purposes.

Colorado Supreme Court Opinions