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Home My WebLink About760364.tiff RESOLUTION RE: IN THE MATTER OF THE APPLICATION OF ALLARD CATTLE COMPANY FOR A DETERMINATION OF A REASONABLE MAXIMUM RATE OF COMPENSATION FOR DELIVERY OF WATER BY THE RIVERSIDE RESERVOIR AND LAND COMPANY. WHEREAS, this is an action concerning determination of a reasonable maximum rate of compensation for delivery of water, brought before the Board of County Commissioners of Weld County, Colorado, under the provisions of 37-85-101 et. seq. , C .R.S. , 1973; and WHEREAS, on or about the 24th day of March, 1976, Allard Cattle Company, a Colorado corporation, hereinafter called Allard made application to the Board of County Commissioners for a determination of a reasonable maximum rate of annual compen- sation to be paid by Allard to Riverside Reservoir and Land Company, hereinafter called Riverside, for the carrying of Allard' s decreed water rights for the year 1976 and all subsequent years thereafter; and WHEREAS, upon examination of the application and the supporting affidavits, the Board of County Commissioners found that the application was made in good faith and that there appeared to be reasonable cause for the Board to proceed to fix a reasonable maximum rate of compensation for the delivery of Allard' s water by Riverside; and WHEREAS, in accordance with the statutory requirements, the Board of County Commissioners on the 7th day of April, 1976, ordered that a public hearing be held on the 28th day of April, 1976 , at the hour of 2: 00 o'clock p.m. in the hearing room of the Board of County Commissioners, Weld County, Colorado, at 1615 Hospital Road, Greeley, Colorado 80631, at which time and place all parties interested in the Riverside Reservoir and Land Company or parties interested in procuring water therefrom might appear to present documentary or oral evidence or deposition taken accord- ing to law; and WHEREAS, this Board did on April 28, 1976, take evidence establishing the Board' s jurisdiction to hear this matter and did immediately thereafter hold a full public hearing for purposes of rendering a final decision; and WHEREAS, based on the evidence, testimony, exhibits, comments of public officials and agencies and comments from all interested parties, this Board does hereby find and determine: 1. That all of the requirements of 37-85-101, et. seq. , C.R.S. 1973 as amended, relating to the filing of the application to fix a reasonable maximum rate of compensation for delivery of water by Riverside to Allard in Weld County, Colorado, have been fulfilled. 2. That a copy of the Order, duly certified, was properly served as provided by law fixing the date of hearing for the Board of County Commissioners of Weld County. 3 . That the hearing before the Board was extensive and complete; that all pertinent facts, matters and issues were sub- mitted, and that all interested parties, as defined by law, were afforded an opportunity to be heard at said hearing. Persons appearing on behalf of Allard included Allard' s attorney, Charles frye°°10 760364 N 1,.� 1 $ A. Karowsky; partners of Allard, George L. Allard and W. D. Farr; and a retired professional engineer, Ken W. Dickey. Persons appearing on behalf of Riverside included Riverside 's attorney, Donald F. McClary; President of the Board of Directors of River- side, Glenn A. Christensen; Superintendent of Riverside, Cecil J. Osborne; Water Commissioner for District No. 1, Bob Samples; and Superintendent of Bijou Irrigation Company, James R. Pugh. 4. This Board makes no finding as to Riverside 's status as a common carrier with respect to any other party served by the ditch; however, the Board does find that Allard in entitled to use the facilities of Riverside as a matter of right. This finding is supported by Deed submitted at the hearing dated February 12, 1910, recorded in Book 233 at Page 583 , Weld County Records, which originally conveyed to the 70 Ranch and Farms Company (which is now the Allard Cattle Company) a right for 16 cubic feet flow per second of time, decreed to be Priority No. 32, Water District No. 1, Division No. 1 of Colorado, to flow through the Riverside ditch with headgate in South Platte River in Weld County, Colorado. The evidence further discloses that during February, 1917, Riverside granted to the 70 Ranch and Farms an easement for the diversion and transport of water under Priority No. 11 for 22 cubic feet flow per second of time, for one and two-tenths (1-2/10) miles from the diversion point on the South Platte River to the point at which Allard diverts said water from the Riverside ditch. 5 . That from the first of May through the first of October, Allard does not have an exclusive use in the Riverside ditch, but rather, over a seven-year period, out of a total average annual flow of 13,854 cfs, Allard runs an average of 2, 247 c£s, or approximately 16% of the average annual flow. In addition, Riverside traverses a distance of 11 total miles and Allard water is carried for a distance of only 1. 2 miles, or approximately only one-tenth (1/10) of the total distance. 6. Allard' s right to use the Riverside facilities bears a concommitant obligation to apy to Riverside a reasonable annual compensation for its proportionate share of maintenance, super- vision, and operational costs as such costs relate directly to Allard. Accordingly, the evidence and testimony reflect that the present rate of compensation of Six Hundred Dollars ($600.00) annually from Allard to Riverside appears to be inadequate in view of increased maintenance, supervision, and operational costs. 7 . That, based upon the following: a. Comparison of total cubic feet per second of water diverted by Riverside and by Allard in a given year; and b. Comparison of distances which Allard water is transported from the point of diversion as it relates to the total length of the ditch; and c. The amount of maintenance costs which may be allocated considering the relative volumes of water transported and the relative distances that the water is transported in the ditch; a reasonable maximum rate of compensation for use of Riverside' s diversion facilities and ditch by Allard is $ % COOL- per year. NOW, THEREFORE, BE IT RESOLVED, by the Board of County Commissioners, Weld County, Colorado, that the reasonable maximum rate of compensation for the use of Riverside' s diversion facilities and ditch by Allard is $ /,pna. e21- per year. The above and foregoing Resolution was, on motion duly -2- made and seconded, adopted by the following vote on the 7th day of July, A.D. , 1976. BOARD OF COUNTY COMMISSIONERS WELDCOUNTY, COLORADO tL KSS , .. 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COUNTY OF WELD Filed with the Clerk of the Board BEFORE THE COUNTY COMMISSIONERS of County Commissioners till i 1976 OF WELD COUNTY, COLORADO CD?,j()"Pr COUNTY cLe AND RECORDER [NeDUt' BY IN THE MATTER OF THE APPLICATION OF ) ALLARD CATTLE COMPANY, FOR A DETERMINATION OF A REASONABLE ) BRIEF AND ARGUMENT MAXIMUM RATE OF COMPENSATION FOR ) OF ALLARD CATTLE COMPANY DELIVERY OF WATER BY THE RIVERSIDE ) RESERVOIR AND LAND COMPANY TO: BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO Allard Cattle Company heretofore submitted an Application to the Board of County Commissioners of Weld County, Colorado, to fix a reasonable maximum annual sum to be paid to Riverside Reservoir and Land Company as reimbursement for use of its facilities which Allard Cattle Company utilizes to transport its decreed water rights for a distance of 1 2/10ths miles to lands owned and leased by Allard Cattle Company. The hearing was held on Allard ' s Application on April 28 , 1976 , and because of the length of the hearing, the Board of County Commissioners deemed it appropriate that a written brief and argument be submitted for its consideration. This document is intended to serve such purpose . The situation presented to the Board is unique , in that although Mr. Samples, a witness for the Respondent Riverside, testified that Riverside was a common carrier, it is not in fact a common carrier in behalf of Allard. Allard is entitled to use the facilities of Riverside (dam, diversion structure , headgate and 1 2/l0ths miles of canal) as a matter of right , and not as a matter of contract. To reinforce the foregoing statement, reference is made to Exhibit submitted at the hearing by Allard, consisting of a copy of a deed dated February 12 , 1910 , recorded in Book 233 at page 583 , Weld County, Colorado , Records . This deed, executed by Riverside, conveyed to the Seventy Ranch and Farms Company (now owned and operated by Allard) certain lands in Section 34 , Township 5 North, Range 63 West, and in Section 28 , Township 5 North, Range 63 West, Weld County, Colorado. The deed also conveyed "a water right for 16 cubic feet flow per second of time , decreed to be Priority No. 32 , Water District No. 1, Division No. 1 of Colorado, to flow through the Riverside ditch with headgate in South Platte River in Weld County. " In addition, the fact has been established, with- out dispute, that Allard is also the owner of a right to divert 22 cubic feet of water per second of time from the South Platte River from January 1 , 1976 , said right being Priority No. 11 in Water District No. 1 , as modified by Decree of the District Court of Weld County, Colorado, on June 23 , 1917 . Further, it was es- tablished, without dispute, that in February of 1917 , Riverside granted to the Seventy Ranch an easement through the Riverside Intake Canal, permitting water under said priority to be diverted at and by the headgate of Riverside for the purpose of carrying water received from the above described Priority No. 11 for a distance of approximately 1 2/10ths miles , to a point at which Allard diverts said water into a ditch owned by Allard, and known as the Illinois Ditch. This easement has been dignified by over sixty years of uninterrupted use. It is acknowledged by all of the parties that Seventy Ranch and Allard Cattle Company has paid Riverside $600 .00 a year, ostensibly "for use of diversion facilities of the Riverside Reservoir and Land Company canal to present headgate of Seventy Ranch owned by Allard Cattle Company" . Mr. Cecil Osborne, Super- intendent of Riverside, acknowledged in his testimony that the true reasons for the imposition of this charge are lost or uncertain because of the lack of records and the extensive passage of time, but it was assumed by Mr. Osborne and by Allard that this payment was calculated to reimburse Riverside on a pro-rata basis for -2- Allard' s share of "wear and tear" on the facilities used, and presumably for nominal services to be rendered from time to time in behalf of Allard by a ditchrider employed by Riverside. The testimony clearly established that the alleged service to be rendered by a ditchrider employee of Riverside were sadly lacking; that Allard was obliged to place and remove diversion boards, open gates , repair, install and remove , as the need required, fences which were in fact Riverside ' s legal obligation to perform (in this connection it was even established that from time to time Riverside employed George Allard at the rate of $2 .00 an hour to perform the duties which by law Riverside was obliged to perform) . Mr. Kenneth Dickey, Allard' s expert witness, whose qualifi- cations and experience are undisputed, testified that in order to satisfy their storage rights , accounting for seepage and evaporation loss, Riverside was obliged to run a minimum of 92 ,465 acre feet to fill the reservoir at an elevation of 321/2 feet, and would be obliged to run approximately 100 , 000 acre feet to fill the reservoir to an elevation of 34 feet. Dickey further computed that Allard would not have to run water exceeding a total of 9 ,000 acre feet during the entire annual use by Allard. Riverside attempts to overcome this large disparity of use by distorting the true facts and ignoring the quantities of water run by each of the parties to this dispute. Riverside asserts that Allard uses the ditch 33 . 8% of the time, and Riverside used the ditch 66 .2% of the time. In addition, Riverside in its testimony contended that only on "very, very rare" occasions did Riverside utilize its storage rights during the period of time from May 1st through September of each year when Allard was carrying water in the ditch. Riverside ' s own Exhibit 1 , which purports to be a record of Department of Natural Resources , Division of Water Resources, of water run each year from 1967 through 1975 totally disputes this fact. -3- To assist the Commissioners in this regard, in the 1967- 1968 season during the time Allard was diverting water, Riverside ran 2497 cfs. In the 1968-1969 season, Riverside ran 7740 cfs. In the 1969-1970 season, Riverside ran 11 , 830 cfs. In the 1970-1971 season, Riverside ran 16 ,635 cfs. In the 1971-1972 season, Riverside ran 13, 516 cfs. In the 1972-1973 season, Riverside ran 14 , 569 cfs. Apparently through inadvertence , the records have skipped the 1973- 1974 season, as there appears to be a duplicate of the 1972-1973 run. In the most recent year for which records are available, the 1974-1975 year, Riverside ran 14 ,467 cfs. In other words, not count- ing the 1973-1974 season, for which the record is missing, Riverside ran an average of 11, 764 cfs per year during the period from May through September. During the same periods of time that Allard was using the Intake Canal , for the 1967-1968 season, Allard ran 2 , 376 cfs; for the 1968-1969 season, Allard ran 2 ,253 cfs ; for the 1969-1970 season, Allard ran 1 ,942 cfs; for the 1970-1971 season, Allard ran 2 ,116 cfs; for the 1971-1972 season, Allard ran 3 ,074 cfs; for the 1972-1973 season, Allard ran 1 , 895 cfs ; and, for the 1974-1975 season, Allard ran 2 ,076 cfs. It must be emphasized that the figures immediately referred to above are concerned only with comparisons of water run by Riverside and Allard between the first of May and the end of September of each year. Further analysis of the figures discloses that between the first of May and the first of October, the total water run in the Riverside Canal by both Riverside and Allard is 14 ,011 cfs. During the period of time in which Allard is alleged by Riverside to have the exclusive right to run water, on the average , Allard actually runs 16% of the water that is transported through the Riverside Intake Canal, and Riverside runs the remaining 84% . In addition to considering the percentage of use , the Commissioners must also take into account that Allard runs a small -4- head of water (a maximum for a limited period of time of 33 cfs) , compared to an average transport by Riverside during the summer months of approximately 350 cfs . Additionally, Allard is trans- porting its water a distance of 1 2/lOths miles , and Riverside is transporting its water a distance of approximately 11 miles. The foregoing totally destroys any argument by Riverside that Allard' s use of the ditch in the summer months , compared to the contention by Riverside of its "rare, rare use" , is responsible for the alleged, substantial accumulation of sand. It must be remembered that Riverside is seeking to recover the cost of such sand removal on the assumption that Allard is solely responsible . Totally aside from the foregoing facts, it is Allard' s contention, as demonstrated by the evidence, that proper management of the location and timing of removal of boards in the diversion dam structure can effectively "scour" accumulated sand and wash it down the river. Mr. Dickey testified to such effect, as did W. D. Farr and George Allard. As proof that Allard 's contention in this regard is not only theory but is fact, is the evidence introduced by George Allard, that for the first time in many years, boards had been removed from bays on the headgate side of the dam, and even though the river was as low as it had been in Allard ' s memory, the bulk of the sand bar which had been built up, had been scoured away and washed down the river. The pictures introduced by Allard confirmed this fact. This event occurred in approximately a ten day period immediately prior to the hearing, and immediately after Riverside had stopped drawing water through its canal . Excellent evidence of total lack of management and super- vision by Riverside is the fact that after the major break in the Intake Canal in December of 1975 , Riverside drew no water through the Canal for a period in excess of two months, and made absolutely no attempt to remove boards and "scour" sand during this time. -5- It is , therefore , Allard' s contention that the evidence is eminently clear that Riverside ' s attempted claim of $3 , 000 .00 , or any amount, for sand removal is totally without merit, in fact or in law. Cross-examination of Mr. Osborne, Superintendent of Riverside, disclosed that maintenance expense for the dam and the headgate on an annual basis was nominal . The principal expense he testified to, was the cost of replacing boards , which he estimated would cost $200 . 00 to $300 . 00 a year. In this connection the Commissioners are reminded that Riverside is constantly and exclusively drawing water seven months of the year, and, as demonstrated above, is drawing 86% of the water during the summer months when Allard is running water in the canal. Before presenting a detailed discussion in this brief of the law supporting Allard' s contention that it has a basic right in the canal , as opposed to a contract right, there are a number of miscellaneous considerations to which the Commissioners ' attention should be directed: a. Certainly Riverside cannot be serious in asserting its contention that it is a common carrier for the benefit of a multitude of parties other than Allard, because , as pointed out by Mr. Dickey, any ditch company that transports water for someone else and makes a profit in transporting that water is not entitled to disaster relief, which Riverside acknowledges it has repeatedly received in the past. b. In 1975 , Allard obtained permission to operate a self- propelled sprinkler on part of its acreage , and, as a consequence, was obliged to reduce its draw of 22 feet to 19 feet. As a consequence, Allard will be running approximately 131/2% less water through the Riverside Intake Canal in the future than it ever has in the past. Riverside makes a point that it transports water for non- stockholders in Riverside Reservoir and Land Company for $1. 50 per acre foot. These non-stockholders have no basic right in the ditch, as opposed to Allard ' s established legal right by deed and -6- usage for over sixty years. Riverside is obliged to engage in all of the intricate negotiation of agreements and bookkeeping necessary to account for exchange of water, accounting for the shrink, the measurement on a daily basis , with constant supervision by the ditchriders, together with the massive expense of maintaining eleven miles of Intake Canal , the Reservoir and the elaborate distribution system which Mr. Samples testified extended in excess of 96 miles and benefits 22 ,500 acres. Riverside does not concern itself with shrink that is absorbed on Allard water; Riverside is not keeping any books in behalf of Allard; Allard is transporting its own water. In exchange for a deeded right-of-way through the Seventy Ranch, Riverside granted a right in the ditch. Riverside cannot be permitted at this point of time to disregard Allard' s established rights and attempt to make a profit on Allard ' s water. Riverside Reservoir and Land Company is a part of Riverside Irrigation District. The District operates and maintains an elaborate distribution system, operates wells for replacement water, purchases water, and has purchased land and is accumulating a capital reserve for development of a new reservoir system. Allard is not and never will be the beneficiary of this complex system. Based on the District' s budget for 1976 (which was submitted as an exhibit) , the proposed assessment per acre for landowners within the District was $3. 80 . (It was increased to $4 . 50 per acre to cover the expense of repairing the massive rupture in the ditch which occurred in December of 1975. ) IF Allard were included in the District , and if it would receive all of the benefits resulting therefrom, based on the 785 acres Allard irrigates , its 1976 charge would have been $2 ,983 . 00 , compared to $11,102 . 00 which Riverside seeks to charge Allard. How much more dramatically can the inequity of Riverside ' s attempt at an exorbitant charge and its lack of good faith be demonstrated? -7- c. In analyzing the testimony, it appeared that Riverside "protested too much" when it denied that the reason for its extortionate demand from Allard was based on any attempt on Riverside ' s part to recoup a substantial part, if not all , of the expenses Riverside has spent and is obviously going to be obliged to expend in future years in order to repair and restore its ditch in areas as it traverses the Allard Ranch, and at points far beyond the point where Allard terminates its use of the ditch. The expenses which Riverside is going to be obliged to expend were underscored by the major break in the Intake Canal which occurred late in 1975 and early in 1976 , and which Mr. Osborne admitted was occasioned by Riverside ' s neglect in supervision, and which resulted in substantial and as yet unrecovered damages by Allard. It was and is Allard' s contention that Riverside ' s dramatic and exorbitant claim for an annual rate to be charged Allard of $11 ,102 . 15 rather than the $600 . 00 that has historically been charged, is an unconscionable attempt to establish a capital reserve for restoration of ten miles of a ditch which Allard never has and never will have occasion to use. d. Allard' s Exhibit S, which is a statement of cash receipts and disbursements for the Riverside Reservoir and Land Company for the year ended December 31 , 1974 , demonstrates that their total cash receipts for operation of the entire Riverside Reservoir and Land Company system (exclusive of the expense of distribution through the Riverside Irrigation District) was $38 , 802. 00 . By demanding $11 , 102 . 00 as an annual rate to be charged Allard, Riverside is demanding that Allard pay in excess of 281% of the total cost of running the entire system. Nothing demonstrates the inequities more than comparison of the foregoing figures. The inequities become even more dramatic if the Commissioners consider Applicant' s Exhibit R, which is a statement of cash receipts and disbursements for the year ended December 31 , 1973 . The only true -8- sources of revenue listed in that exhibit are assessments on water rights in the amount of $20 ,096 . 00 , rights and pump rentals in the amount of $4 ,720 .00 , lease payment of $600 .00 , interest of $13. 00 , miscellaneous of $600 .00 , and refund of payroll taxes in the amount of $29 . 00 (for purposes of true cash receipts , it is not proper to consider a loan from Riverside Irrigation District in the amount of $10 ,000 . 00 , or a government grant for flood control of $14 , 027 . 00) . The true cash receipts for 1973 were $26 ,058 . 00 . Based on the 1973 records, Allard would have been obliged to pay better than 421/2% of the operation of the entire system. Riverside attempted at the hearing to demonstrate to the Commissioners that it was entitled to a return on its investment, which Mr. Osborne acknowledged probably could not have exceeded $30 ,000 . 00 . A totally illegal and improper attempt is made to obtain a rate of return on alleged replacement value. Even if Riverside were entitled to a return on its investment as far as Allard is concerned, its rate of return would have to be computed on the value of its investment, which, obviously, in a period in excess of sixty years has been totally depreciated. Despite the demonstration which has been previously given in this Brief as to the percentage of water transported through the Intake Canal during the period of time in which Allard is drawing water (86% by Riverside) , Riverside contends that between the first of May and the end of September, they would have no absolute need for a ditchrider, and that , therefore , Allard should pay the total expense incurred in behalf of such ditchrider. Although the Commissioners cannot concern themselves with whether or not the ditchrider is performing the duties he is legally obliged to perform in behalf of Allard, based on the services that Allard has received in the past, as demonstrated by George Allard ' s , W. D. Farr ' s , and Mr. Dickey' s testimony, it would appear that Allard should not be obliged to pay anything. -9- At this point in the Brief, it is deemed appropriate and necessary to discuss the status of the law in Colorado, and to refer to the cases which were cited by Riverside . Riverside cited the case of Board of County Commissioners of Jefferson County, et al , v. Rocky Mountain Water Company, 102 Colo. 351. This was a case in which the Water Company owned a ditch for the carriage of water to consumers under contract. It is quite clear in this case that not only did the ditch belong to the Water Company, but also the water itself. The case held that although the contract users could demand renewal of their contract, if they failed to do so on a yearly basis, the Company was free to contract with other parties. In the cited case , the Company was clearly acting as a common carrier and was entitled to a rate of return on its investment. One need not be a lawyer in order to observe the distinction between the cited case and the Riverside- Allard situation. Allard owns the water and Allard owns a right to carry the water through the Riverside Ditch. As has been repeatedly pointed out in this Brief, this right has been established by sixty years of usage , and of equal, if not greater dignity, by deed from Riverside itself. (At this point, it is appropriate to indicate to the Commissioners that, as subsequently acknowledged by George Allard, his testimony that Allard owned a part of the ditch was incorrect. What was intended to be said by Mr. Allard was that Allard owned an unattackable right in the ditch. ) Allard Cattle Company freely acknowledges that it should be obliged to reimburse Riverside for Allard' s pro-rata share of repair and maintenance (which is not reimbursed by government grants) for maintenance of the diversion dam, headgate and 1 2/l0ths miles of the Intake Canal . In making its case, Riverside totally failed to show a justification even for the charge of $600 . 00 that it has been receiving in the past from Allard. As evidence of Allard' s good faith, W. D. Farr, in his testimony, made it a point -10- to indicate that Allard was willing to pay its share of improvements and repairs as and when they were incurred and when costs were documented. Mr. Farr further acknowledged that if the ditchrider, in the employ of Riverside , performed the duties which he is required to perform in behalf of Allard, Allard should pay its fair and pro- rata share of compensation. The difficult task facing the Commissioners is to determine what percentage amounts to a fair pro-rata share for Allard to pay. Giving Riverside all the benefit of the doubt, the fractional share has to be so small that the revenue it produces would be nominal . Mr. Allard testified that he felt $600 . 00 was more than reasonable compensation. Mr. Dickey testified that he felt $1 ,000 . 00 would be more than adequate to compensate Riverside . Mr. Farr testified that he felt a sum between $1,000 . 00 and $1 ,200 . 00 would more than compensate Riverside for Allard' s pro-rata share of maintenance and repair expense of that portion of the system utilized by Allard. Allard understands there is a normal inclination to operate on the assumption that if Allard was content and agreeable to pay $600 . 00 in the past, and with substantial inflation that every- one is aware of, Allard should expect that some increase would be made in the annual charge. However, the Commissioners should recognize that it is Allard ' s contention that even the $600 . 00 was overpayment for the services it received and the repairs and maintenance that have been accomplished. The Commissioners should recognize that repairs and maintenance required of the diversion dam, of the headgate and of 1 2/10ths miles of ditch, in which there is a very nominal fall and therefore a slow flowing head of water, results in a very minimal expense . The principal expense in this regard is the replacement of boards , for which Allard should only pay a very small percentage share. The principal expense with which the Commissioners should concern themselves , on the assumption that the ditchrider will -11- perform the duties for which he is being compensated, would be Allard' s pro-rata share of the ditchrider' s compensation. Even if the Commissioners were inclined to double the annual compensation to a rate of $1 ,200 .00 , it would result in granting the benefit of the doubt to Riverside. Allard has clearly demonstrated its good faith by its willingness to pay Riverside, not for transporting its water, not for a return on Riverside ' s alleged investment, not for the water which is transported and which belongs to Allard as a matter of law, but for actual expenses which can be attributed to Allard ' s use of Riverside ' s facilities. Riverside has totally failed to document those expenses by either testimony or documentary evidence. Should the Commissioners grant Riverside a reimbursement compensation in the amount of $1 ,000 . 00 to $1,200 . 00 , it would be adjudicating a decision that would be more than eminently fair to Riverside , and certainly supportable in law and in fact. Respectfully submitted, ALLARD CATTLE COMPANY By: KAROWSKY-, WITWER & OLDENBURG Attorneys for Applicant By: Cc' c C) Charles A. 7Karowsky (4155) 550 Greeley National Plaza Greeley, Colorado 80631 Telephone : 352-3161 -12- STA E r cm oR4D0 ss. COUNTY 0. r,i:d w i ❑Y C2n of i:.e board d (:ounty Co rcL5=ll'nn•s PM/23 976 9 66 ,tfri COUNTY CLERIC AND RECORDER By Deputy BEFORE THE COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO IN THE MATTER OF THE APPLICATION ) OF ALLARD CATTLE COMPANY, FOR A ) BRIEF AND SUMMARY OF DETERMINATION OF A REASONABLE ) EVIDENCE SUBMITTED ON MAXIMUM RATE OF COMPENSATION FOR ) BEHALF OF RIVERSIDE DELIVERY OF WATER BY THE RIVER- ) RESERVOIR AND LAND COMPANY SIDE RESERVOIR AND LAND COMPANY. ) TO: BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO : I . AUTHORITY OF THE BOARD OF COUNTY COMMISSIONERS TO FIX THE MAXIMUM RATE OF COMPENSATION AND THE NATURE OF EVIDENCE WHICH IS LEGALLY PROPER FOR THEIR CONSIDERATION IN ESTABLISHING SUCH RATE . This matter was submitted to the Board of County Commissioners of Weld County , Colorado, upon a full hearing, Allard Cattle Com- pany being represented by Charles A . Karowsky, hereinafter referred to as Allard, and Riverside Reservoir and Land Company, being repre- sented by Donald F. McClary, hereinafter referred to as Riverside. As the Board will recall , the hearing took a considerable length of time and the Board evidenced broad lattitude in the sub- mission of evidence relating to the matter of its fixing the rate. The Board permitted Allard to offer considerable evidence and unsupported statements , which, while affording the Board an opportunity to hear everything that either side had to offer upon the matter, resulted in much evidence being admitted, which is not legally sanctioned or proper under the statutes and decisions of the State of Colorado concerning a hearing of this nature. For the purpose of this brief , Riverside will restrict itself to the evidence produced at said hearing in accordance with the statutes and rulings of the Supreme Court as proper evidence upon which the Board can base its decision in such matter. Allard and Riverside , for the purpose of this hearing, recog- nize the power and authority of the Board in this proceeding to determine the maximum rate to be charged for the carriage of the Allard water by Riverside . The constitution of the State of Colorado specifically provides that the legislature shall pass appropriate statutes vesting in the County Commissioners the power and authority to determine such charges and said statute, as en- acted by the legislature, in furtherance of the constitutional mandate prescribed the jurisdiction and the method of procedure for hearing and the evidence to be considered at any such hearing. The subject act is found in Article 85, Chapter 37, C.R.S. 1973 "charge for delivery of water" . We would invite the Board and their legal counsel to familiarize themselves with said article , if they have not already done so. Riverside will take the liberty herein of pointing out certain sections of said article, which are appropriate to this hearing and as the same have been construed by the Supreme Court of the State of Colorado. The first five sections of said article merely state the jurisdiction and the procedure preliminary to the hearing upon the setting of maximum rate. The section dealing with the "hearing-testimony-maximum rates" is found in 37-85-106 C.R.S. , 1973 , which states as follows : "Hearing-testimony-maximum rates . (1) The board of county commissioners may adjourn or postpone any hearing from time to time as may be found necessary, or for the convenience of parties or of public business. It shall hear and examine all legal testimony or proofs offered by any party interested concerning the original cost and present value of works and structure of such ditch , canal , conduit , or reservoir, the cost and expense of maintaining and operating the same, and all matters which may affect the establishing of a reasonable maximum rate of compensation for water to be furnished and delivered therefrom. It may issue subpoenas for witnesses, which subpoenas shall be served by the sheriff of the county, who shall receive the lawful fees for all such service; and said board may also issue a subpoena for the production of all books and papers required for evidence before it . (2) Upon hearing and considering all the evidence and facts and matters involved in the case , said board of county com- missioners shall enter an order describing the ditch, canal , conduit , reservoir, or other work in question with sufficient certainty and fixing a just and reasonable maximum rate of compensation for water to be thereafter delivered from such ditch or other work within the county in which such board of county commissioners acts, and such rate shall not be changed within two years from the time when it is so fixed, unless upon good cause shown . " -2- As can be seen from the above statute, the legislature has specifically provided the category of testimony and proof that must be considered by the commission in arriving at the total maximum charge for delivery of such water, which items are as follows : 1 . Original cost and present value of works. 2 . Cost and expense of maintaining and operating the same. This statutory language has been further considered and refined by the Supreme Court of the State of Colorado in appeals of previous commissioners ' rulings, which have arisen under this statute. Riverside believes that it would be of benefit and assistance to the commission to cite said cases in order to better understand the basis of legal testimony and proofs to be considered by the commission . We do not wish to unduly belabor the commission, however, we feel that the following few cases are controlling and are most germane upon the subject of the question of legal testi- mony and proof. One of the earlier cases dealing on this point , arising out of an appropriate appeal to the Supreme Court of the State of Colorado is McCracken vs. Montezuma Water & Land Company, 25 Colo. Appeals 280. This case arose in connection with determination of the maxi- mum rate to be charged, having been originally heard and determined by the County Commissioners of Montezuma County. The Court , in said case, covers the constitutional and statutory authority of the County Commissioners in determining the maximum rate, and in dealing with the question of the type of evidence to be considered by the commissioners in arriving at their decision states : "That the board was engaged three days, to-wit : February 24-5-6, in hearing the application and considering the testimony and proofs offered by all parties interested, concerning the original cost , the then value of the works and structures of the ditch, costs and expense of maintain- ing and operating the same , and all other matters pertaining to the subject matter under investigation . " While the above case does not particularily elaborate upon the -3- statutory provisions, it is cited for authority of the recogni- tion of this evidence as the legal and proper evidence to be considered by the commission . The later case, Board of County Commissioners of Jefferson County et al . v. Rocky Mountain Water Company, 102 Colo 351 , appears to be the latest and certainly the leading case on the question of the character of testimony to be considered by the commissioners in such matter . This was an action brought to enjoin as unreasonable and confiscatory, the rate fixed by the Board of County Commissioners of Jefferson County under the statute in question here . The Colorado Supreme Court , in said case, and in consideration of the evidence submitted in that matter to determine whether or not the same was confiscatory, states : "In arriving at its conclusion and judgment , the court found that the value of the physical property of the plaintiff devoted to a public use, including its struc- tures , excavation, tools and equipment , furniture and fixtures, was $72 , 735 .52 , and that the value of its ditch right of way was $45,000, making a total of $117, 735. 52 . " The court , in said matter , going on , based upon the valuations stated in said case that the company was entitled to a return upon the "value" , and the court further stated that it did not approve of a rate of return upon such valuation lower than six per cent . It is to be remembered that this case was a 1938 case and it is readily apparent that interest rates are considerably greater now than in 1938. The court , in said case, continues , and we quote: "(6) The landowner is protected from exorbitant charges for carriage by the provision of law authorizing the board of county commissioners to fix reasonable rates (for carriage) . The company is protected from having its investment confiscated by its right to have the courts enjoin the enforcement of a rate that will not yield an income at least sufficient to meet operation and mainten- ance costs and an additional income such as will provide a return on its investment which is reasonable in view of the nature, character and extent of the benefits, if any, that accrue to the users. -4- (8) The court found the present value of the company's in- vestment in construction , physical property and right of way to be $117, 735. 52 , and that such valuation should enter into the rate base . No error is assigned to this either as to the values found or as to their inclusion in the rate base . We think the inclusion was proper. We are further of the opinion that under the record in this case, the fore- going valuation constitutes the whole of the rate base on which the ditch company is entitled to a return. " The Supreme Court in said case in its final decision holds that the rate was apparently confiscatory in that the rate there- in set by the Board of Commissioners was clearly insufficient to pay the maintenance and operation costs, together with the six per cent return on the value of the structures and works. It thus clearly appears from the citation of the authorities above, being the statute and case law, as pronounced by the Colorado Supreme Court , the matters to be considered as legal and proper testimony and proof for the commission in arriving at its maximum rate of such charges is as follows : 1 . The carries' ditch and its investors and stockholders are entitled to receive an annual return of not less than six per cent on the value of the structures used to di- vert the Allard water. 2 . Also , an annual maintenance and operation charge attri- butable to the period of the exclusive use of the structures for delivery of Allard water for which the taxpayers and investors receive no benefit , but only the liability for those maintenance and operation charges attributable to such use. II . TESTIMONY ADDUCED AT SAID HEARING BEFORE THE BOARD OF COUNTY COM- MISSIONERS IN THE INSTANT MATTER PERTAINING TO THE LEGAL AND PROPER MATTERS TO BE CONSIDERED IN ARRIVING AT THE MAXIMUM RATE IN THE INSTANT MATTER. Riverside Reservoir and Land Company, through its various witnesses, and primarily Cecil J. Osbourn , registered engineer and -5- supervisor of the ditch company, offered to the commission and testified upon these matters that the courts and statutes have said are the matters to be considered by the board in arriving at its determination of the maximum rate. At said hearing, Riverside submitted to each of the commissioners and to opposing counsel a summary of that testimony, which, for the review of the commission, is attached as an appendix to this brief as Exhibit "A" . Much, if not all , of the testimony as appears on Exhibit "A" was uncontroverted and again not to unnecessarily burden the commission, we will only briefly review that testimony in light of the law and statutes of the State of Colorado . 1 . Riverside submitted the testimony of the water commission- er who verified the respective deliveries of the water of Riverside and the water of Allard over an eight year period. This yearly delivery breakdown is attached to appendix "A" . It would appear from even a cursory examination of said deliveries that the number of days devoted to the exclusive use by Allard of the ditch structures, maintenance and operation, is approximately one-third of the total time, although there is, in some years, a minimal amount of joint use. Counsel for Allard, early in his presentation, admitted to this approximate per centage of days of use. It is to be noted, and the testimony is clear, that when Allard is using these structures , ditches and rights of way are at a time when Riverside is not using it and, therefore, is devoted entirely to the use of Allard for the delivery of its very valuable water right . 2. The uncontroverted testimony is that the value of River- side' s physical property devoted to Allard use, which does not include the total value of all physical property of the district , but only that portion used by Allard, is $300, 000. That based upon a minimum rate of return of -6- six per cent on said value and their per centage of use of approximately one-third, equals a net annual amount of reasonable rate of return of investment of $6, 084. 3 . That the annual maintenance charges attributed to the period of exclusive use by Allard, are delineated in detail on appendix "A" , being primarily extra services and employment of headgate supervisor and other costs due solely to the exclusive use by Allard of the struc- trues, when the same is not needed for use by Riverside. Primarily this time of exclusive use is from mid-May to October, when the Allard priority, being of early date, received water and Riverside priority, of a later date, receives no water. The third matter included in said appendix and for which evidence was offered concerning maintenance and operation costs is the physical problem and expense in- curred by Riverside by virtue of running water during the summer months for the exclusive use of Allard and the attended sand collection in the ditch. Frankly, there was some attempted evidence offered by Allard in an effort to overcome the testimony of Mr. Osbourn , who is the superintendent of the ditch and has the closest knowledge of the cost of extra maintenance due to this physical occurrence. If there be any conflict in this testimony, however, we believe it can be easily resolved, considering all of the testimony, being that extra or excessive sand collections will and have resulted from this period of exclusive use. Allard' s position being solely that this excessive sand collection could be alleviated, if the parties cooperated to open the gates periodically during the summer months . There is no legal authority, or other basis by which Riverside can demand that Allard forego his call upon the water on any date . If there were to be any cooperation -7- on this matter, it would be solely Allard' s prerogative and once the rate has been set by the commission , we have no way of assuring, or no way of enforcing Allard to forego his valuable water right on any date in order to flush out the sand problem. Considering the record of use in the past , as shown on appendix "A" , it does not appear that this has been done. It should be noted that in accordance with the testimony , Allard had control of the diversions in 1969 and sometime prior thereto. That during the time of Allard' s control , the diversion and boards were not ad- justed so as to eliminate this excess and accumulation . This past record and performance points up further the necessity and extra maintenance and operation expense for the headgate supervisor to properly maintain these diversions for both parties during the time of use by Allard. It , therefore , readily appears that Riverside must be compensated in its maintenance costs for the removal of excess sands, which all admit does occur and the uncontroverted testimony of Mr. Osbourn is that the annual cost will be $3 , 000. Based upon said evidence, being the legal and proper evidence to be considered by the commission in arriving at the maximum rate to be charged for delivery of Allard water, the total annual rate is $11 , 102. 15, or based upon the average use by Allard over the last eight years, as shown on the records of the delivery of this water , kept by the water commissioner of the district , it would come to approximately $2 .25 per acre foot . III . THE COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO, IN THIS MATTER HAVE THE JURISDICTION AND RESPONSIBILITY OF SETTING A MAXIMUM ANNUAL RATE TO BE CHARGED FOR THE DELIVERY OF ALLARD WATER TO REASONABLY COMPENSATE RIVERSIDE FOR THE USE, MAINTENANCE AND OPERATION OF ITS FACILITIES . -8- Under the laws of this state , Riverside has no option of whether or not to carry the Allard water, but is required to do so under the appropriate statutes , regardless of their desire , or inconvenience and expense. The only matter that is left for anyone to determine is the reasonable rate of compensation due Riverside for running of Allard water for the time of exclusive use of Allard at a time when Riverside would not otherwise be using said structures, rights of way, nor have the additional expenses of maintenance and operation . In arriving at a just and equitable rate, the commission should not only consider a rate or charge to Allard, that appears just and equitable, but a rate to be charged as to adequately compensate Riverside, which in the last analysis is the taxpayers of that district , for the use of its facilities and to reimburse it for maintenance and opera- tion. Certainly, someone is going to have to bear this expense. If it not be Allard, it must be the taxpayers of the district . It would seem unjust and unfair to charge the taxpayers and owners of the company to run and deliver water for the sole use of Allard over which water the company and owners have no control or use. The taxpayers and owners of Riverside are entitled, in accordance with the law previously cited, to a reasonable return on the value of their structures, rights of way, together with an annual main- tenance and operation cost . This theory is fully supported by the statute and case law and is by all logic a proper basis of appor- tion of the annual charge . If the structures, or ditch right etc. were totally or partially damaged in any year, the company assumes all liability and all costs for repairing, restoring or even rebuilding the entire structure, as it cannot , under law, assess Allard for any proportion of these costs. Its only means of obtaining reimburse- ment for such matters is by way of an annual return on its present value of its investment . This can easily and readily be likened to a rental of a house , which has a present market value. The -9- owner of that house is entitled to a reasonable rate of return on the present value, the owner having to assume all responsibility for the loss of said house. Allard, on the other hand, has no responsibility for any loss or maintenance and operation, this being left solely to the taxpayers and owners of the company and they must assume this responsibility and the only possible offset is by an adequate and just annual rate for delivery of the Allard water. CONCLUSION In accordance with the statutes, laws and decisions of the Supreme Court of the State of Colorado, and based upon the legally admissable and acceptable testimony and offers of proof adduced at the hearing before the commission, the maximum rate to compensate Riverside for the use of its facilities, being a reasonable rate of return on the value of its structures and the annual maintenance and operation charges for the carriage of the Allard water , is $11 , 102 . 15. This maximum rate, or lesser rate that may be annually charged by Riverside must be borne by Allard, as the user of the facilities, or else it can only result in a confiscatory or unlaw- ful use and taking of the property of Riverside without just compensation . Riverside cannot exclude Allard from the use of these facilities, but the use thereof by Allard, without just com- pensation would be to the effect of condemning this use against the taxpayers of Riverside for the private use of Allard, without adequate reimbursement . The taxpayers and owners of Riverside, as Allard, are entitled to an annual rate or charge, which is just and proper under the laws , statutes and decisions of the Supreme Court . Respectfully submitted, GEO. A . EPPERSON, DONALD F. McCLARY & EDWARD—L\ ZORN A37 ttorneys fo Riverside Reservoir Land Compan 231 Main Street-P. O. Box 597 Fort Morgan, CO 80701 Telephone: 867 5621 -10- RIVERSIDE RESERVOIR & LAND CO. - ALLARD Costs in connection with establishing running fee rate to be charged for carriage of Illinois Ditch Priority No. 11 in Water District No. 1: 1. Rate determined upon 8 year average of the percent of usage of Riverside, diversionary works, ditch, right of way and physical property of Riverside *(See Schedule attached) . (a) Average number of days of use (1) Riverside 212. 5 (2) Illinois 108. 5 (b) % of usage (1) Riverside 66.2% (2) Illinois 33. 8% 2. Value of Riverside physical property devoted to Allard use, including its structures, ditch, right of way (approx. 1. 2 miles of ditch & right of way) , tools, equipment, furniture & fixtures: $ 300, 000. 00 (a) Rate of return on value of structures Value ($300, 000 x 6%) (reasonable rate) x (percent of usage( ( 33. 8%) equals net annual amount of reasonable rate of return on investment $_ 6 084. 00 3. Annual maintenance charges attributed to period of exclusive use of structures by Allard. (a) Average number of days of exclusive . / use by Allard 108. 5 (3.62 months) (b) Headgate supervisor compensation paid by Riverside during period of exclusive use. /A 11 ( 1) Salary $350. 00 (per month) (2) House, tele- phone & utilities supplied by Riverside $150. 00 (per month) (3) Travel Expense ( . 15 cents per mile at 150 miles per month) $ 22. 50 (per month) (4) Social Security; insurance & other benefits $ 35. 00 (per month) Total monthly expense of headgate super- vision $557. 50 Total extra expense of headgate super- vision during period of exclusive use by Allard 557. 50 (per month) x 3.62 = $ 2018. 15 (c) Extra maintenance cost due to sand collection in ditch during period of exclusive use by Allard � I 10, 000 cubic yards per year @. 30 cents per yard for removal $ 3000. 00 4. Recapitulation: (a) Annual rate for reasonable rate of Return on Value of Structures ( Item 2) $ 6084. 00 (b) Annual rate for exclusive use ( Item 3) - $ 2018. 15 (c) Annual rate - extra cost of maintenance $ 3000. 00 Total annual rate $11, 102. 15 Iu � on cd cd U) ti cd 0) w cd w CE ❑ 0 N 0) Co • N CO O it) Ifl 0 N CD Co °Ci• t~ z 0 CV rn rn o O1 0° � CV CD CO COC o H H 00 O O r1 N CO d' tr) CO CO h h h h h h O Cr) O) O) O O O O H H r-I rH H H r i ri 1 I I I I I I I H Fi N CO O) O r-I N CO d' cd cd CD CD CD h h h h h +) U Cr) 0) C) C) C) 6) C) C) 0 rl rl r-I ri ri r-1 El a) h0 0) cd 00 Ul U cd cd O A aS w w 4) 0 CO N H CA • N CO O Cl CO CO 00 CO CO H U 0 h O O O CO O CO [c] ,`G H Cl Cl ClN ri H Cl Cl CD O CD G)0) r-i CD CL H Qi 00 C) O r-+ N CO d' LO CD CD h h h h h h 6) CA O 6) C) O O) Cn r-I ri ri ri H r-i H rl I I 1 I I I I I '-I {.� N CO O O rH N C) d' cd cd I CD CD CD h h h h h +> 0) W C) C) 6) 6) a) C) O 0 'J+ r l r-I EXHIBIT BEFORE THE COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO IN THE MATTER OF THE APPLICATION OF ) ALLARD CATTLE COMPANY, FOR A DETERMINATION OF A REASONABLE ) AFFIDAVIT MAXIMUM RATE OF COMPENSATION FOR DELIVERY OF WATER BY THE RIVERSIDE ) RESERVOIR AND LAND COMPANY STATE OF COLORADO) : ss . COUNTY OF WELD ) CHARLES A. KAROWSKY, of lawful age , being first duly sworn upon oath, deposes and says : That pursuant to the provisions of 37-85-105 , C.R.S . 1973 , Affiant received from the Board of County Commissioners of Weld County, Colorado, on April 9 , 1976 , a certified copy of Resolution establishing a hearing on the Application of Allard Cattle Company for a determination of a reasonable maximum rate of compensation for delivery of water; such hearing to be held on April 28 , 1976 at the hour of 2 : 00 o'clock P.M. in the hearing room of the Board of County Commissioners of Weld County, Colorado, located at 1560 Hospital Road, Greeley, Colorado. Affiant further says that on April 9 , 1976 , he caused to be directed to Riverside Reservoir and Land Company, at 215 East Kiowa Avenue, Fort Morgan, Colorado 80701 , attention of the President, Secretary or Treasurer , a certified copy of the Resolution above described, and mailed such Resolution with a letter of transmittal by Certified Mail , Return Receipt Requested, the original of which is attached hereto and by reference made a part of this Affidavit. Said Return Receipt indicates that it was received on April 12 , 1976 by the addressee , Riverside Reservoir & Land Company. Affiant further says that in addition to the foregoing service, a copy of the letter of transmittal to Riverside Reservoir & Land Company and a certified copy of the Resolution was mailed to Donald F. McClary, Attorney at Law, Counsel for Riverside Reservoir & Land Company, at 231 Main Street , Fort Morgan, Colorado 80701. A xerox copy of the letter of transmittal above de- scribed is also attached hereto and by reference made a part hereof. Subscribed and sworn to before me thisthis , gY,Dday of April , 1976 . �e.,"11/3-7 NOTARY PUBLIC My commission expires: 4fi /97 9 April 9, 1976 Riverside Reservoir and Land Company 215 East Kiowa Avenue Fort Morgan, Colorado 80701 Attn: President, Secretary or Treasurer Gentlemen: Enclosed herewith is a duly certified copy of a Resolution adopted by the Board of County Commissioners of Weld County, Colorado, on April 7, 1970' , establishing the time, date and place of hearing of the Application of Allard Cattle Company, for a determination of a reasonable maximum rate of compensation for delivery of water by the Riverside Reservoir and Land Company. Very truly yours, KAROWSKY, WITWER & OLDENBURG Charles A. Karowsky CA:{/J m Enclosure Certified Mail No. 80735 Return Receipt Requested cc. Donald F. McClary, Esq. RECEIPT FOR CERTIFIEr MAIL-300 (plus postage) SENT TO POR DARiverside Reservoir & Land C mpany TERN STREET AND NO. u) 215 East Kiowa Avenue 00 P.O. STATE AND ZIP CODE ti .__Fort Mnr (`nTnrar9n 2f17f11 OPTIONA SERVICES FOR ADDITIONAL FEES co RETURN t. Yhow5 to wham nS date Oellvere0 15$ RECEIPT ' With delivery to addressee only 65f SERVICES Z. Shows to whom,date and where delivered 35t With delivery to addressee only 85t• _DELIVER TO ADDRESSEE ONLY __ e SPECIAL DELIVERY re 504 (exfra 4w r. ire " Z PS Form NO INSURANCE COVERAGE PROVIDED— APr. 1971 3800 NOT FOR INTERNATIONAL MAIL (See ether s-743 n GPO;1972 O-•e0-Ted ry � k�« 4'+ 1= � 9� 44v is i t g#3' 4 w 4.:9* PA" 41i71V41A11„4,1111":"-rITVPt• is r, Ey+ 1 4 .. _. • *I.rt_ L'c. • LAW OFFICES ' EXHIBIT GEORGE A..EPPERSON a DONALD F. McCLARY A STANLEY I. ROSENER / EDWARD L. ZORN 231 MAIN STREET • P.O. BOX 597 TELEPHONE FORT MORGAN, COLORADO 80701 3031887-5821 March 5, 1976 Mr. Charles A. Karowsky Attorney at Law Suite 550 , Greeley National Plaza Ninth Avenue and Eighth Street Greeley , Colorado 80631 Re : Riverside - Allard Cattle Company Dear Charles : I have reviewed the contents of your letter of February 18 and other correspondence with the Board of Directors of Riverside at their regular meeting on March 5. Based upon their resolution adopted at said meeting, I have been instructed to advise you that they feel that considering all the attendant costs for running of your client ' s Illinois Ditch right , that said running fee for 1976 should be $6, 000 for said year. According to the resolution this is the fee to be set for the year 1976 , and the matter would be reviewed annually. There was considerable discussion concerning the matter of the running fee, and, frankly, they feel that they have the necessary facts to substantiate this fee as a reasonable cost to the District . The Board also instructed me to advise you that they would be willing to meet with you and your clients on March 18 at 1 : 00 P.M. at the District ' s office to negotiate the details of the manner in which River- side will carry your client ' s water for the year 1976. Let me assure you that they are not being autocratic about this, but feel that this is their position, but are anxious and willing to meet with your clients to discuss the agreement for the year 1976. The meeting on the 18th is to be limited on the 1976 running fee situation . As to the other matters contained in your letter of the 18th, I have been instructed to advise you on behalf of the District as follows : 1 . As to the matter of the Irrigationists Association protest on the New England decree, the Board is in the position that they are only one of the many ditch companies in the association and, therefore, could not agree to with- draw any objections, and would suggest that any such request be made to the association. Mr. Charles A. Karowsky Page Two March 5 , 1976 2. As to the question of the damages claimed to have occurred to your client ' s land for the recent ditch flooding, I would advise you that the District has insurance on this matter through our local agent , "Art Johnston 's Berryhill Insurance Agency" , Post Office Box 398, Fort Morgan, Colorado 80701. This matter has been turned over to the insurance company and is, therefore, totally out of the Board' s hands . The Board is anxious to cooperate with your clients in regard to their claim and I will be glad to put you in contact with the insurance adjustor, but I am sure you appreciate that the insurance company has the ultimate decision on the amount of damages to be paid. I wish you would confirm the meeting of March 13 at your earliest possible convenience. Yours very truly, -'1) ag-- --7 d&scA--7" 7" DFM/by C EXHIBIT The Riverside Reservoir and Land Company a' STATEMENT OF CASH RECEIPTS AND DISBURSEMENTS For the Year Ended December 31, 1972 Cash balance, January 1, 1973 $ 8,263 Cash receipts: Assessments on water rights $20,096 Rights and pump rentals 4,720 Loan from Riverside Irrigation District 10,000 Government grant for flood control 14,127 Lease payment 600 Interest 13 Miscellaneous 600 Refund payroll taxes 29 Total receipts 50,185 • Total cash to account for 58,448 Cash disbursements: Intake materials $15,1691 Intake labor 1,1437 Reservoir labor 116.-- Flood control 3,444 Salaries 7,980 Directors 500 Payroll taxes 546 Rent 910 Office expense 373 Utilities 242 Telephone 445 Water replacement 1,148 Insurance 605 Flood damage 973 Miscellaneous 50 Rights rental 4,203 ,E Rights assessments 140 Mileage 536 Pump 6,622 Total disbursements 45,145 Cash balance, December 31, 1973 $13 303 n mpay � The Riverside Reservoir and Land ConTS STATEMENT OF CAS. SCEIPTS AND Dg BSp E I For the Year Ended December $13,302 January 1, 1974 a EXHIBIT Cash balance, $25106 12,771 cash receipts: water rights 10 Rights on rentals 12 915 Rights and pump 38,802 Interest 5— 2 4 Miscellaneous I Total $13,320 I disbursements: 142 Cash 4,987 Intake materials Intake labor 6,254 1 Reservoir g materials g�9 °. ,--- Salaries damage 78 Sarerier 525 243 60 i Directors 1,200 Payroll taxes Rent expense 409 0 497 Rent esg 084 '� Telephone 1 07 Telephone inp expense 250 w 3,339 58 Insurance 750 Professional fee 89 Rights rental. 3,339 -- Employees health insurance 375 Mileage 32 84 Dues etc. 228 Recording, gg�404 Electric line ---- Miscellaneous $` 3,700 Total Cash balance, December 31, 1974 I I ! DETITIoNER'S EXHIBIT sr F'-v ,rcid ri ati I t tt j7 ,1 - � II_ _?..., O[i 7'.s••..r 1•�.. ✓ tom"` Pulp,t J.-76 Expwnats paid 1973 197/. to Sept.' Bal.'?st. Total Est, Est. 1975 1975 1975 1976 F_rtr nileage 2436.34 3365.16 1911.60 955.00 2866.60 4000.00 . Fider salaries 10457.50 11781.8O 6617.50 3496.00 14113.50 15000.00 extra labor 1061.25 1220.00 1018.10 2000.00 Materials 2066.60 12656.60 15327.26 10000.00 Supt,& Sec. 4980.00 5602,56 3268.16 1067.52 8485.00 10000,00 Directors 310.00 340.00 180.00 350.00 530.00 800,00 W.H.Tax 1048.52 619.16 245.00 864.00 1000.00 insurance 25.00 603.00 742.00 1000.00 Leagal 495.81 2000.00 Equipment 187.94 161.27 200.00 Office exp. 419.42 745.50 132P.11 700.00 2028.00 2500.00 ooc._ec.paid 1872.43 2106.92 1107.47 487.00 1604.00 2500.00 Miscel. 13165.75 9895.26 10122.12 12000.00 :;.Oolo.Cons.Dist 9000.00 9000,00 9000,00 9000.00 Emp.Eealth 1050.00 612.50 350.00 962.00 1100.00 ES?reu.-Jackson 25402.00 12829.50 2836.25 19000.00 22000.00 Treas. : Et Weld Co. 125.00 125.00 125.00 125.00 `:'i.Cat Reservoir 21/+/,4.30 15500.00 41621.68 35000.00 83939.67 69811.38 86918.77 36575.50 123494.27 133225.00 Source of Incore Dua District Treas.Pa1.12/31/74 20398.73 Running fees 2330.00 Dist,Levy collected 53976,92 Morgan Co.Treas. C.C. 13174.26 _^v.Rxclu.°- Incl. 21.45 Lateral gates 679.13 'lrzinq fees 50;.50 16183.3E Less i Office exp. 676.F9 Caneva bssmt. 5-9/20 W.1.Rts. 136.2`+ 15506.50 Iaskso "aka Fanches 450.64 '-es :!ot-a "10000.00 Est —,,?'even_, 7"'7(— .c _._ Int . 1449.''=0 11449.00 85500.00 ' Assrnt,?.: SpG torn!: --- - - L__ 86935.00 O,F.,S,a, — 12000.00 Farm rental 12000.00 P C S— T' Miscel. --?500,00 �4,' 112000.00 O T161975 .lr� i- STn i E r,.,,,: i rir'S OFF1C CEr. . i. LOrADO I 1 '!' . . I I F- -I LA C i r a 3- t9 (i O o 6 c.% , kiN re cis a o .., c^ o P1 t-, t't C< tt c,, ct ti' '.1 t :t t`- Ci .t yi. i 1y H O, 'Q\L t'i. rc rt 4t O. :^4 i;1 '4 bV '''i D. i-i, t.t ci C4 it it Sl iii, tt :1 •t St up 1 oi+ tt 'n P Cr cq c-, ti :9 ri s, r'. ,.; %'• r( (� `� vA A A V V y y v 1 G {\ C4 c:, ti 1.:, 41 iti d+ ci .: `.r. Ivc � \� � \ \ �, \ � �� ci w 1 a tvc4, rkc1 ti0, 41tt itti t( ctc1 c1t1t( °ri c. tl ', et ttcCt{ c, :t :k. c'- 'C i'i \t Cl it t4 'rs ct +i tt VI ti et ii ., . 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Q Z a V f tit" N r ccV ce o_ rc `' O O ¢ lIJ h cc C [C in u -. J ce u OCR ��A•. ...- vAV..- -. L't N..&., -._•SS.Q` t, ct._.(1 ',- ^_ 11 u. cc �r ) \ ` ti r-•4.'• r%. .r r-rte r r- r---- c z� a Cr- r ;y' 1 T J ti v v .� w ,,n . 0 E-O ri. cc_ 0 ,,, QN 0 d r�,. 0 0_— < a O— v U O ` ��` r.- \S z.CI``��`` \,)J}'�M `'' l? 1101\,`' \; ...... r •--•:,--)--:-.:/-cv V'r ,Y O ,r. r� r �),, �. L*' t`a` '' ct ��t C'� Cr —C_x /. r. - ca c`t ri Iy c4 L., 4 _ t $�` o n) �" " - J w / 4 -- ` (---, -z.A rn a erg'S^�i`:,p,.n- I Ivy 0 vl {yam`,.Q Si 1-- .x LL, - L \i •.s, `!,.., i n 1\ h-l.. '. .:T. _ Qc'1 C. C)"- j O o6 kr `+I n, ^ij 1�.'N N' c .. N\ 1 r .;\- .-',1---r.----�„ :-e.-� -, `V, t: ;:r d.r „n z vi v t•r. ,. cm, �' �;"�� . .. �_ •`. _ _. � e - rw e�� vie w c' r o 7 C r\ S c, c,S c J t...r.0 rn ).r y1 4- If''r L.,JJ ' Jf 2„^ n'1 -- cr ._*2.3.,), .....--_-(--_,J-.._'-,,,`_ 4 c} 4 el NT.c-:i C 6A M - r' t)r i-.c t 'CC`„ C4- ..-' �i `.1 _ . , < a- (\N C4 c C, 2 ty. _ ". 1� r` ry d0 ••'N M r in r �" , M it ,;' or or kr, 1S,1r_V n +` , l = J cC .. -'. 0 ' N - ' -", Nn r` M \ L l Li 4. is It CI ,,i f t r . . �r ct C C IL _ in ,- I ` NI(” O La coif ‘co',O] O',—. N m \V t) h Nf� (O 1� N4N N NfN N N �[mVLc?, 7, Q u J- 'Nr �"3)` r ! - __ -{- s. 1R� f__ � � 1t �-.-u--ta-O'-� K� Ft !c`, I- w C I, I v J ". C \ Iti t ~ a a O a Y. Fort Mor;ran,Colore4o. August jth,1918. ,,: The Board of Disc:tors of the Riverside Reservoir and Land Company met njournei session this date with James Hurley, J.R.Mylander and E.F.Smith a->r.t' dispensed with. PIA, minutes of the last meeting were dis pe P : r'c.jlowirg Bills were then read and ordered paid. hats" Ir: c, : , c- Chas.F.Tew 251.20 i A ;,,, J.M.Dille, (Freight) r 128.00 2 The Morgan County Herald, * 9,e' .1 y J.M.Dille 75.00 E.B.F oster, 129.:0 k : Carroll Mohr 28.00 : �} . The Mountain States T.&.T.Co. 18.40 . '7 E.M.Daughtry, 167.20 t 1 ,s ; • . Joseph Jones, 81.00 a K3 Lee Smith, 6.50 ;1 Clatwortby Rdwe.Co. 11.49 .5)1 The Platte Valley Lbr.&.Supply Co. 475.5 6 1572 E.G.Everly Agent. 0I 3 The Riverside Irrigation District. 56.53 j No further business coming up at this time the meeting adjourned $ subject to the call of the President. -- 1j' ° Secretary. j' # �� t Tort Morgan, Colorado, f .. September 10th,1918. ^ e Born-id of Directors of the Riverside Reservoir & Land Company met in adjourned 1 s =,-ion this date with James Burley, J.R.Mylander and E.F.Smith Directors and J.1.10111e, Supt. present. The minutes of the last meeting were and approved. i The following bills were then read and ordered paid:. } Name Acco 75unt C o i;o 00 i . J.M.Dille, • 2 55 , Roscoe Brantley, 28.16 a ,...4,) The Mountain States T.&.T.Co. 167.20 4 4137 E.M.Daughtry, 120.00 r ._n E.B.Foster 20.00 - ..y-, Joseph Jones . 4.00 i; E.M.Beeeanir '0 32.00 i s Tony,Lamount 150.00 c ? Roacoa, Hrantley, Donnen Brothers, 36.09 :14.i N.A.Blodgett, 19.6 i,,,*y The Riverside Irrigation Dist. 9 t The Secretary then read a letter from the Brooke Land & Cattle Co. otciooing a check for $600.00 as rental service of the Intake Canal for the ,, .r• 1916. A motion was made, seconded and carried that the $600.00 be accepted , 1 the Secretary be instructed and directed to deposit the $600.00 in the e ':ns.ral Fund of the Riverside Reservoir & Land Co. No further business coming up at this time the Board adjourned • r-Uj.act to the call of the President. 7 Secretary. (/ I i Y r -- u 517( oI� X33 t < , . WARRAMT D,0.--_ _...ATt011. __ _. -vmawv�sewe+ sire awv ' '" - _ _ - Cbfe IDeea Mode this �i ' `tf ��//J).'!' � der of _- -�—J^,^(j_.//ate the J➢jay, of our Lord oat thousand nit hundred 1 e rect- s� ,lMween" / 'h fr_ir'J✓/, e.<-.Q�e,AL( _ f Oe _.". ._To C a--;.- Q_ •aorporartim slaty armored ed and existing ender sod by virtue of the laws of the State of Colorwlo of the Ant pert. and_.__...-__.. The 7e--Rsneh-enA-Fn r,e-Company a -sorparatioa aul-y..apptwined-and--esleiirei Audio and by virtue- - of--the--laws-if--the__ i ells_--- •'—'J £- - . . . . . - - 'tea of Colorado,of the second pert: ... WltletpgT , That the id pert'of the Bret part,for• d in coneidebtlna of the rem of __.._.. I i the sell party of the firm pert a is hand paid by the meta part *col the second part, the receipt whereof is hereby confessed and acknowledged, lath granted. her- gaol.Geld d storeyed, by these preemie doth grant,bargain,sell,convey and confine onto the 'hid pert . —of the second pert,1444,e�aet}/enet!►1Fin end ns I grim ca ,all the Slowing described lot 14 or parcel tot tantalum*,a,lying and being b the.... / tCouoty of i-.7-.--A ad SOY el Colorado, to watt_—. _ The north east quarter of the northeast quarter sad the west half of the northeast (Darter and the northeast quarter of the northwest quarter of section thirty four township five north of range sixty three west 6th P.M. containing one hundred end sixty sores more or less. AM also the northwest quarter of the north west quarter, and the east half of the northwest Oar— ter, and the west half of the northeast quarter, and the south east quarter of' the northeast quarter aid the north east quarter of the south east quarter of section twenty eight township five north of range sixty three west 6th P.K. Also a water right for sixteen pubic feet flow per second of tins decreed to be priority No. 32 water district No. 1 Division No. 1 of Colora- do, to flow through the Riverside ditch with head gate in north bank of South Platte river in Weld County Exeepting and reserving from said premises a strip of land, for right Of way, ter the Riverside catsl, or ditch, one hundred feet wide being fifty feet on each side of the center line of said ditch as enlarged, constructed and extended through mid premises in said section twenty eight. TOeWTNER we all and Mognlar the hereditamnt@ and eppaMga.ese thereinto bebeging.or in anywise appertaining,and the reversion and reversion, re- mi4r cod reWderr,renb,linen end profits thereof;and all the estate,right title,ahem,claim and demand whatsoever of the maid party of the fir[pert,either S law or malty,of,a sod to the above bargained premises,with the hereditament,and eppertesences. TO NAVA AND TO NOl0 the maid pens above [gained and des ribed,with theappurtenances,veto the sr,d part-the second " ' � � ' �,, paw{ ...___ We sod neaps loess. And the said ➢ -- --:-r.---ease .( Ztlw-w s---r -4--t- a_� , (U party of the Bret part, for itself, ite a wee oca sod amigos. dtb •eerier[rare!, bargele and agar to and with the mid part !1.N the rmad part, laSaesa e-tellbeire end amigos, that at the lime of die Aeneas delivery of 77 `e p ease It is well seised of the premises above conveyed,Ase of a gmd,eon, perfect,abtolme end ledefertble estate of inheritance,in law, in fee simple, and heth preS eD paver sad lawful authority to grant.bargain,sell and convey the era le manor end fore dorraid, and that the r e are free end cleat from all former � �tr I a,bar em,.aaMeab and ixtmbrauve of e ewhetterk{od GranDev sorer;i a�rha -4 2tA�V Z_ - - ` `"4 ' "____________ ._ _. .. -. _. ._ _.and the above bargained premier in the quiet and peaceable p.aeeaaio N the said part of the . p t*mpnlmbalm ad reipe,sent all end every person or pore really claiming or to claim the',bolo or any part thereto.the said pa I the Sat pert*ell adwlD WAILANT AND PORRVER UP.PSND. IN WI wMNM RP, The said party el the first pert bath same armed ha corporate to he herniate aubeeribed by its Cr11117"."!?:), Imelde•t.and its eurianata b be b affixed,attoated by km Secretary,the day mad ➢e first above trifle.. n _egSff atrL.. + a.{ f \( Preside. de. &nn or Cony , a. ,1" 1.. • _. - ._- —_'.✓_J . Is Gad ter male) l _County,le the este aim. ..'eire`aYW►eY11ff - ._ qty fine t//LP's• '!ft ewpngaelly r ls e the sere parse tobPw ear an nbudbed to the as beet seated the come respectively r.-_._ . pWldset .S eteerwyel>ti _ r_ f"r*0:Vt.:_Y `t4......._ _exr1--s,,ee_.__Cry;�,�..f�_j`+e- -7--__ _.____ _-. _._ .-g teepel�led who are knows to v(to be such officrs nTctively, appeared . . area or able day emperor,S a•e• ly•dae•trdpt4er: T the rei eared to the foregoer retreat la the ewes col ad ere se.Ne lets;that the as ere eneerte aaaed by the eaehefit� o/fdW corporation; seed eteres sees X.,:.. e `! by Ile Shaft arheedad ell ha epee semi that the cold_ �'Ci - _.' It the — — - r N N e+ NO en ,Nea,ad dr _. --.^ter t!�._.- _— f.,.r' •`. Y these tae ISet:far by the Sheet,el add_. .,. se they respectively ntoceted their are*threte ------ rk f ?wOTART __ *attic. .. S, pyre ad�y Gad Chet they fit,steel r deemed the cold Ytneat N wiser as their free wad Sear me - (- 0 sed deed,sad r the free S venter col sad deed N cold serayeratba toe the and pe N en y rp• three set bah. '' Ohms we �y Ohms ea had _ `a`�`'`__ware _-- ..__ -. day 0.rots__ ?' y lower _ ..__N � � � . _ l _—__---...:IiIiiiin • p1 - neatV+.teeill._.. -._��eleeh.-_C1 • .. �L^�� dry inessi _ __ mar. N y _ __---Der. ya M�u�,... e, 1N 11 NO:.a-.. • - ALLARD CATTLE CO. PETITI('T'ER - RIVERSIDE RESERVOIR ,"c1D LAND CO. — RESPONDENT A T . E N D A N C E R E C O D Applicant : Time ; 2:00 P. M. Docket ;` Date : April 28 , 1976 Request ; NAME • ADDRESS _ :2 ./e 2 ...' ,],e. ,.../7 „/ ._ 27/7 /(G--7 f : ' , i•_ft2.'1-e..(f J 7 e Zi_�✓_e i /p ;' 4.,( '4/ / Lip .,: iF".1 /"-3 `jC-41L772t. Z-4R/-Z/41 4..4 It,4`{e�i -10V-.• ' ira/7*- /4-7I tea / 77 )24- A-Z 71 , 4, I, . .( (, /p .,7.,(/i,,_.----- 8- I if vy irlii 7.. emi r; Z/ - ,- e /7 . if- .i>i,evx ::::.> '2/ .- -''- & :Ey /1/"%ei 4k-7-W.,"-y-,-..-2 (i ‘ _/� / / `✓:;:-/: G�-r ' mil- �,7%�11 C -k3 2k4,.(2 C 1 -td,;s1.--e-',-14.451-,,,-, 1 i'R ( C_,7_,Ijoid,,, e()62 --‘i.' 7.7 •tl / . '3e-443/ ---Y7 414" ;:e7 4-4 d'f '-- -4..4_ .r. P7 7 e--2--0 -4/ii i(.:64}-- aim) .e�. je.,-• V :k // %14 `2i -e--(011 � - . I • i BEFORE THE BOARD OF COUNTY COMMISSIONERS IN AND FOR THE COUNTY OF WELD AND STATE OF COLORADO SUBPOENA THE BOARD OF COUNTY COMMISSIONERS , WELD COUNTY, COLORADO TO ROaERT SAMPLES, FORT MORGAN, COLORADO AND JAMES PUGH, _ FORT MORGAN, COLORADO GREETING: YOU AND EACH OF YOU are hereby ordered to attend and give testimony in the Chambers of the Board of County Commissioners of the County of Weld on the 28th day of April , 1976 , at 2: 00 o'clock P. M. , as witness for respondent in an action between Allard Cattle Company, petitioner, and Riverside Reservoir and Land Company, respondent. And this you shall in nowise omit, under penalty of the law. Dated April 28 , 19 76 (Seal of County) Chairman, Board of County Commissioners Attest: County Clerk and Recorder and Clerk to the Board By: Deputy County Clerk Attorney for /��j� �/J i� /r �1Z �7y ace jfj 4A _ z VV` Address of Attorney_ „ ,r ` 1/1 ,if.„( G r' This subpoena is issued pursuant to 37-85-106, Colorado Revised Statues, 1973, as amended. 1 /. A STATE OF COLORADO, ss. County of I hereby certify that I have served the within subpoena in the County of . Colorado by • and paid witness fees and mileage as follows: Wee_._.__ ._ _ Mileage $_ Total $ Name Wee Mileage $ _ Total $ Name :Fee Mileage $-__.. .. .. __.'Total $ -- Name :Fee Mileage $.__ __- .__ ---Total $ Name SHERIFF. By.... DEPUTY. STATE OF COLORADO, �w. County of , the affiant, being sworn, says: that affiant is over the age of eighteen years and is not a party to this action;and that affiant has served the within subpoena in the County of , Colorado by • and paid witness fees and mileage as follows: :Fee Mileage$ Total $ Name :Fee Mileage$ Total $ Name :Fee Mileage$ Total $ Name :Fee Mileage $ Total $ Name Subscribed and sworn to before me this day of , 19 My commission expires (Seer,or NOTARY) NOTARY PUBLIC. *State date and manner of service. :Witnesses are entitled to a fee for each day's attendance in Court according to class of the County, and mileage at the rate of 15 cents per mile one way. They shall be tendered the fees for one day's attendance and mileage when served,except when the subpoena is issued on behalf of the State of Colorado or an officer or agency thereof. EXPENSE OF SERVICE Fees $ Mileage — — — — Fees and Mileage of Witnesses — Total — — — — $ BC0006 760364 FILE CONTAINS PHOTOS AND MAPS - SEE ORIGINAL FILE Hello