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Home My WebLink About972165.tiffDISTRICT COURT, WELD COUNTY, COLORADO Case No. 91 PR 257, Dividion I NOTICE. IN THE NATTER OF THE ESTATE OF EVELYN S. CARLSON, Deceased TO THE BOARD OF COUNTY CONUiISSIONFRS CF COUNTY OF WELD: Greeting: Please take notice that the attached Petition has been filed in the District Court of Weld County, Colorado, this 11th day of September. A.D. 1997. A hearing will be requested concerning the Petition, to which you may respond and attend. Dated this II day of September, A.D. 1997 4/y274 illiam. Southard, ifeg #1223 Attorney for the Personal Representatives of the Estate of Evelyn S. Carlson, Dec. 1025 9th Ave #309 Greeley, Colo 80631 Phone (970) 353-1292 oe7,5 972165 DISTRICT COURT, WELD COUNTY, COLORADO Case No. 91 PR 257, Dividion I PETITION IN THE MATTER nF THE ESTATE OF EVELYN S. CARLSON, Deceased. Come now Barbara J. Hungenberg and Caroline F McNamara, Personal Representatives of the above captioned estate, and respectfully repre- sent and show: 1. That one item of real estate remains to be liquidated, before the estate could be finally distributed and closed, being: SWi of SW4 of Section 17-6-66, Weld County, Colorado. 2. That said 40 acre tract is bi-sected from east to west by the canal of The New Cache la Poudre Irrigating Company (known as No. 2 ditch); so that approximately 1/3 of the area lies west of the canal, and 2/3 below or east of the canal. This physical barrier through the 40 acre tract divides the tract into two distinct parcels. The problem is described in three letters directed to the Weld County Planning Department, which letters are attached, as is a plat showing location of the course of the No. 2 ditch. 3. Current planning and other regulations as administered for Weld County require a Subdivision exemption or a Recorded exemption; unless, among other things, a court by order exempts the particular property from such subdivision regulations, under Sec 30-28-101 (1O) (c) (Ii) C.R.S.. 14. Efforts to sell the 40 acre tract so split by the wide canal have been unsuccessful due to the County regulations which require the parcel to be sold as a single tract. WHEREFORE, Petitioners pray for the Court to hold a hearing, upon 2O day notice to the Board of County Commissioners of Weld County, pursuant to statute, and to give opportunity to join in such proceeding for the purpose of raising the issue of evasion of this County rule or regulation, that the Court issue an order that this 40 acre tract is exempt from application of the Weld County Planning Regulations, and that the No. 2 ditch does in effect, and in fact, divide the 110 acre tract into two separate parcels and can be sold separately by the Personal Representatives of the above entitled estate. Dated this 11th day of September, A .D. 1997. Barbara Jungenber STATE OF COLORADO ) ss County of deld c // l Caroline E. McNamara As Personal Representatives of the Estate of Evelyn S. Carlson, Dec. Barbara J. Hungenberg and Caroline E. McNamara, Personal Representa- tives of the Estate of Evelyn S. Carlson, Dec., depose and say that they have read the above and foregoing Petition and well know the contents thereof, and that the matters and things therein stated are true of their own knowledge, save and except those stated upon information or belief which they verily believe to be true. / Barbara J./Hungenbe/ Caroline E. McNamara As Personal Representatives of the Estate of Evelyn S. Carlson, Dec. Subscribed and sworn to }, ef ore me this //lt" day of September 1997. My Commission expires: ;..,.� G, /997 Notary Public 'R 08-28-1997 10:48RM FROM AUSTIN & AUSTIN TO 3537504 P.02 AUSTIN & AUSTIN March 3, 1997 REAL ESTATE 515 13th Stem, Greeley, CO 50&31 (970) 3sa-ono SINCE rew Ms. Shani Eastin Department of Planning Services Weld County Administrative Offices 1400 N. 17th Avenue Greeley, Colorado 80631 Dear Shani; As per your request I am submitting he information I have available to me concerning the Union Colo y aka Cache La Poudre Irrigation Company. As we have previousl discussed this is the canal which runs through a property owned y the estate of Evelyn S. Carlson located in the SW 1/4 SW 1/4 171.6-66. The original Union Colony ditch and all water flowing through it was built and owned by the Union Colony on land granted to them by the United States of America. At the time there was no private ownership of land in the entire territory. When property was homesteaded and deeded into private ownership sometime during the 1870's the Union Colony did convey a part of the right to the water in the canal to each landowner but never relinquished ownership of the ditch itself. I have included a copy olf the MAP OP THE COLONY LANDS AS LAID OUT BY UNION COLONY OF COLORADO 1871 which shows the land on which the Union Colony Ditch was built. I believe that at some point in the 1890's the ditch became known as the New Cache LaPoudre No.2 Canal. The canal runs through the property dividing it into two separate and distinct parcels on either side of the ditch. The subject property was first conveyed ;and deeded on April 5, 1893 by Patent Deed from the USA to Asa Decker. The ditch was existing on the property prior to the time of the patent deed according to the original abstract which begins in the late 1800's and is found there today. I am asking that! each of the parcels on either aide of the ditch be designated al legal lots given the facts and documentation provided from the original abstract of the property. The parcel lying east and nbrth of the canal is approximately 23-25 acres with the parcel that lies west and south of the canal being approximately 8-10 acres in size. Please let me know if you have any questions. I would appreciate your quick response on this matter as we are trying to finalize and close out this estate. Thank you for your help and efforts. Ted E. Carlson CLS CRS GRI 08-28-1997 10:49AM FROM HUSTIN & AUSTIN ;THE NEW CACHE LA POUDRE IRRIGATING COMPANY THE CACHE LA POUDRE RESERVOIR COMPANY • TO 3537504 P.03 (303) 352-0222 ! Weld County Planning Services Attn: shani Bastin 1400 N. 17th Avenue Greeley, Co 80631 RE: Evelyn Carlson, etal,. Farm as per request of Ted Carlson Ms. Bastin: The New Cache La Pouilre Irrigating Company (NCLPIC) exists in Larimer and Weld Counties for the purpo a of servicing stockholders with irrigation waters. The basic p�roperty•tights under which NCLPIC operates are those granted by he'United States of Amer ea to the Union Colony in 1871. The canal of NCLPIC begins et the river diversion structure located nortwest of Windsor. From the river, the canal runs southeast to Windsor where it turns east 4nd serves moat of the irritated land between highway 392 and the river. The canal of NCLPIC-enters-Section 17,'T6N, R66W approximately 4460 east of the southwest corner of sectioh 17 and runs northwesterly to the west line of Section 17 approximately 1300 feet north of the southwest corner of•8ggiion 11 where the canal makes a sharp bond and runs easterly ;app yximately through themiddle of the south half of section 17.' NCLPIC has maintained this location since its beginning. . The property right which NCLPIC has inMost areas is a right-of-riay granted by' the United states of America to build, maintaiin, operate, etc. a canal far agricultural. rrigation and various other uses. This right-of-way is often ref�rred to as a presoriptijve easement. This right-of-way is as wide as need be to perform the duties of NCLPIC and mast often does not have a specific width stated. The canal does frequently sever a parcel of land into two tracts. When this conditiontexists, the property right 'of NCLPIC and the sine of the canal create a property boundary very similar to what would exist if a .county road passed' through the parcel. in applications for residential exemptions in recent years, the -condition of an irrigation ditch dividing a parcel into two tracts 'has been used numerousr times to explain why these tracts already 33040 Railroad Avenue • P.O. Box 104 • Lucerne, Colorado 80648 0.04 06-28-1997 10:50AM FROM AUSTIN & AUSTIN TO 3537504 P.04 exist. Even though a parcel exists as a whole, its practical use may be divide by the existence of irrigations ditches and canals. In recent years, as NCLPIC has reviewed applications for residential exemptions and other planning applications. some sections of the canal have had the prescriptive easement with its broad property right'reduced to a right-of-way with specific width. This has been done in cooperation with the Department of Planning Services and the need today to have: more detailed platting of record. A major concern of NCLPIC is access to the canal for maintenance and operation. This at times requires wider access than a mere roadway for the use of heavy equipment, a place to temporarily store maintenance material and adequate space to allow excavation operations with minimal interference.. We have become especially concerned about this issue due to poor access that exist along current residential sections. NCLPIC typically requests a seventy five (75) foot easement on both sides of the center line of the canal when reviewing plats. Another concern is the additional exposure of the canal system to people. Exposure to water delivery systems creates a considerable amount of risk. NCLPIC•is of the opinion that development along the system should not increase the liability of the canal company. It is the hope of NCLPIC that those whoichoose to develop along the canal and those whochoose to neighbor along the canal will 'take such precautions SS' are -reasonable to develop safety measures within their own real property and accesses. NCLPIC supports the rights of neighboring property owners to develop their property in an orderly manner consistent with the county and local master plans. It is necessary for any services crossing the canal right-of-way, such as utilities, to contact NCLPIC office for a crossing agreement. For those crossings which are apparent during the planning process, crossing agreements have to be in place before NCLPIC signs off. For. those crossings which are initiated after the approval of plans„ crossing agreements must be in place before any work is initiated.t I appreciate your takingithe time to review the position of NCLPIC. Please keep NCLPIC informed regarding any meetings or plans pertaining to development. ..4I Sing el y, on Magnuson uperintendent Ir TOTAL P.04 WILLIAM H. SOUTHARD ATTORNEY AT LAW NORWEST BANK BUILDING 1025 NINTH AVENUE, SUITE 309 GREELEY, COLORADO 80631 August 31, 1997 Weld County Department of Planning Services Weld County Administrative Offices 1400 N. 17th Avenue Greeley, CO 80631 Re: SW1/4SW/14 17-6-66 Evelyn Carlson Estate Gentlemen: P.O. BOX 449 GREELEY, CO 80632 (970) 353-1292 FAX (970) 353-7504 The canal of The New Cache la Poudre Irrigating Company courses through the above 40 -acre tract, and is one of the major irrigating ditches in Weld County. In this reach of the ditch, it is 25 to 30 feet wide, and carries a running head of water from 3 to 5 feet deep, (decreed for 605.42 cfs on 5 decrees). The ditch courses through the Carlson 40, and is accessible only from County Road 27 on the west side, or on the south from State Highway 392 (Lucerne to Windsor). The bridge over the ditch on State Highway 392 is the only nearby bridge over the wide ditch. The ditch is like a moat as a barrier from that portion below and east of the ditch to the portion above and west of the ditch. This physical barrier divides the use and occupancy so that without the use of the Highway 392 bridge, one cannot get from the east to the west portions. The ditch company controls the entire surface of the space occupied by the ditch and the necessary and reasonable adjacent area sufficient to maintain and operate the ditch. If a pipeline is installed under or over the ditch, they have to gain permission for such installation from the ditch company, not the landowner on either side of the ditch. If the landowner wants to install any type of footbridge or vehicle crossing over the ditch, the landowner must get permission from the ditch company. To ignore the paramount position of the ditch company which divides the 40 -acre tract into two parcels fails to recognize the subservient position of the landowner. True, the landowner owns the mineral interests under the ditch, but nothing to do with the space occupied by the canal and its space necessary to operate and maintain the canal. In the law, the ditch company easement or right-of-way (in this context both terms are synonymous) are paramount and superior to the surface rights of the landowner whose rights are subservient and subordinate to the rights of the ditch company in the limited space occupied by the canal and its support area to maintain and operate the ditch. It is the position of the landowners here that the stand taken, without thorough analysis, by the County Planning Department forsakes the actual facts involved. This is a BIG ditch, not a small lateral ditch. Weld County Department of Planning Services Weld County Administrative Offices Page 2 August 31, 1997 The law developed in Colorado fits this problem squarely, as like most ditches, including the larger irrigation systems in Weld County, their easements and rights -of - way have very few deeded and specifically described boundaries. To my knowledge, the only major system with deed rights -of -way is the Farmers Reservoir and Irrigation system developed from the old Denver Greeley Valley Irrigation District, where the ditch was installed around 1912 and was surveyed and got deeded land for the course of its ditches (Milton, Barr, and Stanley Lake Divisions). Although the ditch right-of-way can be established by deed, most of it was put in by consent of the interested parties to divert water great distances from the natural streams. The early case of Yunker v. Nichols, 1 Colo 551 (1872) established that a ditch installed across one's land and so operated without stealth or concealment, became a license to use so much of the land as is necessary for the ditch to operate, and that the license is irrevocable. The statute of repose (§ 38-41-101, C.R.S.) makes such a ditch into a prescriptive easement on passage of 18 years. Thus the canal in question does not need a deed to operate and exercise full dominion over its necessary surface area to be operated and maintained. Yunker v. Nichols is enclosed with some points highlighted. It would thus appear the County Planning Department should reverse its position to comply with the facts and recognize the canal is a true barrier between the two portions of the Carlson estate 40 -acre tract. Yours very truly, � 4h- .;. �/. 2j/1 H. Southard WHS:kj Enclosure MAP 19 R66W JOINS MAP 9 J ED B CAROL I L LIND BK BANKS RH FARMS, INC. HENRY SCHAEFER FARM LLC ^ EDWA D JR a 1 MAR V W0 WARD 52 On_ CL etle ROBERT J ■ WALKER etol z O TI GGES PROPER- TIES LTD etal US.A 0 U< Za Yw oZ as USA — KA EVAN R. B DEBRA M. ZKING I - JOHN a MARILYN ORTH GRIM MILTON ErLO rB COLEEN S. BARTMAN N RE BD DOUGLAS LEN MA BOOTH LAND a LIVESTOCK CO GUT TER SE B Co PIRI5IOPHER cam. J. DOERING KEVIN 8 VICKI MILL R H. FARMS, INC. MARIDON 4-L EH etal RE.Nisaw:o"xa� HERGERT LAND B CATTLE CO HENRH� SCHAEFER etol 7 ALAOAS L ;LAO uoN J Is I — o - d EV BL a HAYTHORN EMS!, BROS. air HAZEL M. SEVERIN a CO. THOMAS 0.8 BEVERLY TROSTEL DOROTHY EOVELY eNl JOHN MILLER WA BB.A PERUSES RA R H. FARMS, I INC. RS I WAYNE A. 8 DARRELL JAMES G te➢TLKMAN SULLJVAN U sRMLR B la Mx lawn AMESSATICIASULLIVAN GEORGE L.81- sa"^^ MARCIA L. FELL LAURA A. GILL PATRICK L. Mc NEAR EDWARD & MABEL SCHNORR 1 GENE W B DONNA M OBLANDER PATRICK L .e HAR CLAIRE E. Mc NEAR JOYCE C ANDERSON KAYERIHARD C. A elol MONTERA THOMAS S OPDYKE 3 LESTER E. 8 SHERRILL R. HARDESTY DON ANDERSON, INC CARPENTER ENT. HOFF r. Mo A."E a J. - 3� )- IGIURAiiE" N Ow aa� YZ 'KEITH R SHARON LL. BURMAN PAUL a BERTHA • FRITZLER TRUST law DR°ON RICHARD C B - NORMA K. DUNN VIC LEFFLER a SONS, INC. DON ANDERSON, TED E. a SHERI L. CARLSON AB N PP HEDWIG W SCHNEIDER I HURLE A B DONNA M SCHNEIDER RICHARDA B KAYE C MON TBRA jat OrSUI LL A O_ ^ BURMAN CHEVROLET CO. .Jo gOZ LIZABE H GILL WANDA R HUGHES Mal JOHN A. B. RUSSELL 0 LEFFLER II I Yv NORWEST BANK l OF GREELEY Trustee etal ANN S 8 CHARLES E. BEARD AT LEEN u14G1;Uut GREELEY NATAL BANK Truft,e RICHARD B KAY C MONTERO HOME MST BELEC CO SMITH RANCHO LTD. 114 TR S PINNACLE PARK B-DIV WILL AM H. SOUTHARD Trustee EVERETT P OTTOSON m z O LYNN T z W Fo ELLEN Y wwo OTTOSON DONALD D. & MAR WINDER trustees a tom OJ0 S Y� MUGLAS HENRY DAVID LIZABETH IR AOETZEL LFH:ilicitt ROBERT R ARNBRECHT ALLY A PARSON S SIERRA WILBERT WB �SELLME M RUTH FIRE STIEN HALL-IRWIN CONSTRUCTION CO 3 HARKS TOOTH PIEUNE CO RUBY L. NASH etol EARLS SUZANNE &S C & M AGGREGATES LTD ED & SUSIE A ORR 2 LYDIA WIEDE- MAN CHARD TTE GSJ WR— LM2LL- • LAND Lawn -a ho NDJSIME5, PAUL UAIRR lIc. 01151INt. DANIEL BMILDRED BU%MAN B. ACRES SLIB-DIVISOR fEj 27 29 JO FAILS a EDITH [EDITH F PAYNE le IPAYNE Jac. C E LLOYD =A KINDSFATER 5? ROLgN B CLEDNA DAVID A. JR. a MI JUNE I. OF FAGERBERG Cc IN" WESTERN- WESTERN -MOBILE NORTHERN INC. 83rd 03 JOINT VENTURE 5 EG SCOW 24 JOHN C GERRY JOHN D C BARBARA GERRY 25 MC COI INt FLATIRON g SAND & GRAVEL CO. 36-- ECIL pLNE ARMS 31 a `0REP1JER MARILYN BUNN PUTNAM FARM PTSHP TWA mA LY E M 9EIER CAL , JOINS MAP 24 33 5 Hello