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HomeMy WebLinkAbout1.0 ApplicationBITORE TIII] I]OARD GART I ELD P ETITIOI.l OT COUi.]TY COIiMISSION *oL,' c0uNTY, C0t,0RAD0 rOR EXEMPTION I PursusanL Lo C.R.S. (1g73) Secl-i.on 30-28-101 (10) (a) - (d) as amencled, ancl t-he subclivisj.on Regulat-i.ons of Garfiel<1 cottnt-.y, colorado, aclopt.e<l Aprll 23, 1984 SccLion 2:20.49, Llte uudersig ne,.l Boland Ranch Prop. Ass. Brinkley B. Brown III, Gen Partner respecLfully pr:tiLj.ons Lhe Ilr:ard of count.y colnmissj.oners or Garfietcl courrt:y, colorado, t-o e)(empL by ResoluLion L.he division of 20 ,5 acr e tracL of land inl-c"' approximaLely_18.1-g-3-=-acres eac'lx, more or less, f rom tlrc dcf j niLions of nsubdi.vision'ancl sLrb<liviclecl lancln as Lbe Lerms are usetl aild deJ'ined in c.R.s. (I973) sectioir J0-28-I01 (10) (a) - (d) arrcl t.he Gar.[i.e1d counby Subdivision Regulatiorrs for Lhe reasons sta';ed belolt, llNno3 013IJUW' SIE ATTACI{]1D LETTER 2 LracLs of SUBMITTAL RE U I RL-MENTS Lhe reviet+ crit-eria musl- bc sublnit't-ed wiLIt ^'n ;pprIAeE all t-he fo1 l.on w I .1or+i rtg ch saLisfies inf ormat-i.on. A. Sl<r:tc5 map at- a mitrimutn scal-e of 1'=200' showing Lhe 1ega1 descriph-ion oll the properLy, c'ljrnerrsion and are.t of illl 1ot:s or separal-e int-eresl-s iro be creat-ed, access t-o . ;rttblic r ight.-of -wayr ,tr)d any prol:ose<1 easetnetit-s l-or drai nage, irrigatjon, access or ut-ili.bjes; B. Vi.cinity map aL a mi.nimurn scerler of 1"-2000' shorving Llre gr:tteral t-opograpt',ic anci geographj.c relaLj.o;r of tlle pl'opo:;ed exempLj'on to Lhe surrogpdipg irea witiLin Lvto (2) miles, for wllicit a copy of U.S.G.S. quaclrangle rnap may be used' C. Copy of fl-," tlced shovring o,',ners5ip b1' tlie ap1;1j'c;trtt' or a '[et-t-er from bhe properLy ovrner(i) if oL.l:er l-5an t-he appli.cant-; anrl D. Narnes anci adclr:esSeS of OI,{ners Of r ecortl OI" liittd irnmetl Lal:e1y adjoining ancl wit-5in 200 ft':e[: of t-lrt: proposer.l exclnpt-ion, tnLneral o\,/ners ona Iessces of mineral ovJners of recorcl of l-lle propct:t-y t-o be exempt-ecI, ancl t-enanL.s of ally sl-rucl-rtrc proposerl for conver sion; and E. Ev j.clence of t.he soil t-ypes arrtl characLer j st-ic:.; of eacll type; and g. proof ol= Iegal and aclequate sour ce- of cloinesl-it: e73l-Gr f ot corli'i 1ot' creat-ed, *eLf,o,l of ""ruige disposal, ancl 1ei:Ler of approval o'f fjre probection plan from appropriaLe fire dj-r;b.ricl-; attd G. If COnneCLiOn LO a conmunity or rnunicipal'rl;tLer or {iev/er syst-ent j.s proposecl, a leLLer I=rom [-l'tt-' governilrl botly sl-ating a uj 11 ingness Lo serve; and II . Narrat-ive e:(plaining why e)iempt: jon is being rcqrlest-cd; and I. IL s5al1 be clernopstratecl Lhat- Lhe parcel exir;t-ed as clescribed oIl January 1, 1973 Or the parcel as it. exis'cs presenLJy j s one of noL more Lhatr tilree parcels CreaLed f rom a iarger Irarce'[ aS i t: J existed on JanuarY 1, 1973 - A ltl00.00 fee tnusl- be submi.t-t-e K d vrit-h he appl i.cai- j.on. t-i.t-roner -2:3{-5-I-aL-u-e+-6o k) r,1a l_i.ng Adr ess Gl enye31|_ Sp:jng-s , CO-- Ci. Lv9'4'5-5463 81601--StaEe I'el" e F:ltotr e I'l umb e r lond desion portnershYp RB June 21, 1991 ATTENTI0N: Mark Bean Planning Director Garfield County Planning Department 109 8rh Glenwood Springs, CO 81602 Boland Ranch Properties Associates Subdivision Exemption Canyon Creek Dear Mark: Attached, herewith, please fincl the appropriate supplemental information, check for the application fee and application form for a subdivision exemption for a 20.5 acre parcel of lancl owned by Boland Ranch Properties. Brinkley B. Brown III is the General Partner of Boland Ranch Properties Associates. The property is bounded on the west by County Road 137, on the east by Canyon Creek, the south by the I-70 frontage road and on the north by the Canyon Creek School House, The applicant proposes to create two parcels of approximately 18.5 acres and 2 acres. The 2 acre parcel is located in the southeast corner of the property and includes an existing single-family residence and a cabin, both of which are occupied. Both residences apparently were in existence prior to L970. According to the owners, this parcel has been in the present configuration since before 1960 without any tracts being split from it. The existing residences are accessed by the State Highway frontage road. The 18.5 acre parcel wor.rld be accessed from County Roacl 137. Both are served by and will continue to be served by a well located on the proposed 18.5 acre parcel (see attached permit). Agreements for the joint utilization of this well by both properties up to a maximum of three households will accompany any property ownership transfer. The existing house and cabin are on a septic tank and leachfield. A future residence on the larger tract would also be served by an individual wastewater treatment system. The easterly edge of the property is affected by the Canyon Creek flood plain. P.O. Box 517 . Glenwood Springs, Colorado 81602 918 Cooper Avenue (303) 94s-2246 a a page 2 Mark Bean A visit to the site and a review of the attached SCS Soil Descriptions will clarify the appropriateness of the site for single-family homes. The larger tract is anticipated to be sold for a single family residence. If you require any additional information or have questions, please cal1. Sincerely, Ronald B. Liston Attachment .,,) .rl '/., .-. l: I .. .r l. i /i it l)t, 1l ( l I I I I L.\ t(;. '.a t!t1 l1 ,,''' (i,(llt.t .,od'" t\ ,tl \ I ,/i f.rl ,] i'. \ I 6oLAhtD ZAN6H ?AoP. A>t. VI CINITY MAP,<-/5Le l" z Zooo' r1 ,l ll I o -*.".:.r t. \ t. ': ,. l 1. -.) ,,,:. .:,' .:.{ \r:, 10lIf '{.: t.t t 0.ltt. OO0.tH.},.N,oll.9!r '' :. p,{j tui;.! ll.,(: .r.(. '. J!.!r{i. ortNf .ti,, u)rrw.t','t t -& i((oli.oJird()ro4o,o{t-' : 1.i',lFrl 1f: 5','.,:i. :'.1:;'.'.'r.}l:u' nrsd !tr'.';rt!10x f q.rsr,5r M,fi..ry!n.9:1_.:+.!.x 9,qr qx \ u rer { rijh:r !rtt Ill S$rl{+n1lErr{r'}}{ .'.i :ItH rtt'l r;a{'rtt :E-UlfWl.ffiEfFqf01I r.,.. -:.! .r ' !i ili\i @;,:r .1:l .: .. .i ,.!,i. '.: :) :...,t,: , !.t';. A: ,,{ !- rr " ior ,,.. -...i...r: l.' ,tr l' r @ LN.i. .1. t. f. i. r-,::' i: /]r':i-. li. i, '1' t.nL ., I rx!. @ c x o t ':,r:.;i''i ,, (ffi),':;, ' ,. i ..r...'l llr{k. :.f, r)' .i.: .. J0:t 68A.N0 L ,CQLORA.D.O yL tt. a. 1o r ij Tp :' .. .11' ' "'.:r;v:].:' l'" i"'..1., .:,:j:'- :' 1.,1,1 ;i .. ' ,"jI:- "." Cse e :,r..-' , ..,i r:r..i. .r. [3o I a^ d TZq.n.\ proyr. Ass . blTE ?t-Arl D PLAT\ ,. ;i,i "'r':,,...1r',i tl ls,.l. . tll , 1 L'iti"'.,..1...,rr'..r1.,-..t,r.,., b* .67 i69 .,'] ..:, rli. : - i''r 60 66 bola^"| fb,w)+ ?*p Ass SC 5 Ssi[s M^p , RTFLEAREA, coLoRADo stt D€scr'l?Tlol: 1 to 6 percent. The Morval soils are in higher lying areas and have slopes of 3 to 12 percent. These areas make up 10 to 15 percent of the map unit. Permeability is moderately rapid, and available water capacity is moderate. Effective rooting depth is 60 inches or more. Surface runoff is slow, and the erosion hazard is moderate. This soil is used mainly for wildlife habitat, timited grazing, and some irrigated hay and pasture. Tl,e native vegetation on this soil is mainly wheat- grass, needleandthread, and sagebrush. . When range condition deteriorates, forbs and shrubs increase. When the range is in poor condition, undesira- ble weeds and annual plants are numerous. properly managing grazing maintains and improves range condi- tion. Fleducing brush improves the range. Seeding im- proves range in poor condition. Crested wheatgrass, western wheatgrass, and Flussian wildrye are suitable for seeding. Preparing a seedbed and drilling the seed are good practices. Mule deer, cottontail rabbit, squirrel, and wild turkey find habitat on this soil. Community development is limited by the large stones. This soil is in capability subclass lVe, nonirrigated. ep, Iton channery loam, 6 to 12 percent slopes. well drained, rolling soil is on alluvial fans and sides of valleys. Elevation ranges from 5,000 to 6,500 feet. This soil formed in alluvium derived from red-bed shale and sandstone. The average annual precipitation is about 14 inches, the average annual air temperature is about 46 degrees F, and the average frost-free period is about 120 days. Typically, the surface layer is reddish brown channery loam about 13 inches thick. The substratum is reddish brown, light brown, and pink very channery sandy loam and very cobbly sandy loam to a depth of 60 inches. lncluded with this soil in mapping are small areas of Begay and Morval soils. The Begay soils have slopes of6 to 12 percent. The Morval soils are in higher lying areas and have slopes of 3 to 12 percent. These areas make up 10 to 15 percent of the map unit. Permeability is moderately rapid, and available water capacity is moderate. Effective rooting depth is 60 inches or more. Surface runoff is slow, and the erosion hazard is moderate. This soil is used mainly for wildlife habitat and grazing. The native vegetation on this soil is mainly wheai- grass, needleandthread, and sagebrush. When range condition deteriorates, forbs and shrubs increase. When the range is in poor condition, undesira- ble weeds and annual plants are numerous. properly managing grazing maintains and improves range condi- tion. Reducing brush improves the range. Seeding im-proves range in poor condition. Crested wheatgrass, western wheatgrass, and Russian wildrye are suitable for 15 seeding. Preparing a seedbed and drilling the seed are good practices. Mule deer, cottontail rabbit, squirrel, and wild turkey find habitat on this soil. Community development is limited by slope and large stones. This soil is in capability subclass Vle, nonirrigated. hilton channery loam, 12 to 25 percent S This deep, well drained, moderately steep to hilly soil is on alluvial fans and sides of valleys. Elevation ranges from 5,000 to 6,500 feet. This soil formed in alluvium derived from red-bed shale and sandstone. The average annual precipitation is about 14 inches, the average annual air temperature is about 46 degrees F, and the average frost-free period is about 120 days. Typically, the surface layer is reddish brown channery loam about 13 inches thick. The substratum is reddish brown, light brown, and pink very channery sandy loam and very cobbly sandy loam to a depth of 60 inches. lncluded with this soil in mapping are small areas of Begay and Morval soils that have slopes of less than 12 percent. These areas make up 10 to 15 percent of the map unit. Permeability is moderately rapid, and available water capacity is moderate. Effective rooting depth is 60 inches or more. Surface runoff is medium, and the ero- sion hazard is severe. This soil is used mainly for wildlife habitat and grazing. The native vegetation on this soil is mainly wheat- grass, needleandthread, and sagebrush. When range condition deteriorates, forbs and shrubs increase. When the range is in poor condition, undesira- ble weeds and annual plants are numerous. Properly managing grazing maintains and improves range condi- tion. Reducing brush improves the range. Seeding im- proves range in poor condition in the less sloping areas. Crested wheatgrass, western wheatgrass, and Russian wildrye are suitable for seeding. Preparing a seedbed and drilling the seed are good practices. Mule deer, cottontail rabbit, squirrel, and wild turkey find habitat on this soil. Community development is limited by steep slopes and large stones. Cut slopes should be revegetated im- mediately to reduce erosion and prevent gullying. This soil is in capability subclass VIe, nonirrigated. 16-Cimarron loam, 2 to 12 percent slopes. This deep, well drained, nearly level to undulating soil is in narrow mountain valleys and drainageways. Elevation ranges from 7,500 to 9,000 feet. This soil formed in alluvium derived from basalt. The average annual precipi- tation is about 18 inches, the average annual air tem- perature is 39 degrees F, and the frost-free period is less than 75 days. Typically, the surface layer is dark grayish brown loam about 4 inches thick. The subsoil is grayish brown silty o o 36 SOIL SURVEY Use of this soil for community development, for sani- tary facilities, and as a source of construction material is limited by steep slopes, high clay content, low strength, depth to bedrock and shrink-swell potential. Road con' struction and building foundations can be designed to reduce the effects of shrinking and swelling. A good drainage system reduces soil slumping. This soil is in capability subclass Vlle, nonirrigated. orrifluvents, nearly level. This broadly defined co nsists of deep, well drained to somewhat poorly drained, nearly level soils on flood plains adjacent to the Colorado and Roaring Fork Hivers and their major tribu- taries. Slope is 0 to 6 percent. The soils formed in alluvium. These soils are stratified and vary widely in texture and depth. The surface layer ranges from loamy sand and fine sandy loam to silty loam and clay loam' The underlying layers are generally sandy loam or loam strati- fied with sand, gravel, and cobbles. ln some areas gravel and cobbles are on or near the surface. The water table fluctuates between depths ol 2 and 4 feet and in some years is near the surface during spring runoff from snowmelt. These soils are subject to brief, occasional flooding late in spring and early in summer. lncluded in mapping are small isolated areas of Wann soils that have slopes of 1 to 3 percent. Small areas ol soils that are moderately to severely affected by alkali are identified by an alkali spot symbol. Small, isolated areas where water stands at or near the surface all year are identified by wet spot and marsh spot symbols. These areas make up 15 percent of the map unit. These soils are used for wildlife habitat, recreation, and some grazing. The native vegetation is mainly cottonwood, willow, tamarisk and water-tolerant grasses, sedges, and rushes' ln many areas these soils are suited to production of Fremont cottonwood. The soils are capable of producing 230 board feet of timbei' per acre from a fully stocked, even-aged stand of 40-year-old trees. Where these soils are accessible, they provide shelter and forage for livestock. Mule deer, cottontail rabbit, coyote, bobcat, ducks, geese, and other native birds find food and shelter on these soils. Where feasible, planting food plots, trees and shrubs, and nesting cover enhances the habitat for upland wildlife. Where the water table is high, open water for waterfowl and fish can be developed by blast' ing or by excavating. These soils have potential for recreation. Wildlife is abundant, and the nearby rivers can be used for rafting and canoeing. Community development is very limited by flooding, the seasonal high water table, and variable texture. Onsite investigation is necessary. These soils are in capability subclass Vllw, nonirrigat- ed. more. Organic matter content is high. Surface runoff is slow, and the erosion hazard is slight. This soil is occa- sionally flooded for brief periods between April and Sep- tember. This soil is used mainly for grazing, wildlife habitat, and limited irrigated hay. Good management of water and fertilizer maintains or improves the production of native hay. The native vegetation on this soil is mainly wildrye, wheatgrass, needlegrass, and small amounts of forbs and shrubs. When range condition deteriorates, dandelion, yarrow, rabbitbrush, big sagebrush, and Kentucky bluegrass in- crease. Properly managing grazing maintains and im- proves range condition. Basin wildrye, slender wheat- grass, and western wheatgrass are suitable for seeding. Preparing a seedbed and drilling the seed are good practices. Fencing protects this more productive soil' This soil is lower than surrounding soils and usually con- tains the water supply for livestock. Fleducing brush im- proves the range.' Mule deer, snowshoe hare, elk, coyote, and blue grouse find habitat on this soil. Community development is limited by flooding. This soil is a good source of toPsoil. This soil is in capability subclass Vle, nonirrigated. 64-Tanna sitty clay loam, 25 to 45 percent slopes. This moderately deep, well drained soil is on mountain- sides. Elevation ranges from 6,500 to 7,600 feet. This soil formed in material weathered from shale. The aver- age annual precipitation is about 17 inches, the average annual air temperature is about 43 degrees F, and the average frost-free period is about 100 days' Typically, the surface layer is grayish brown silty clay loam about 9 inches thick. The subsoil is light brownish gray clay and light gray silty clay about 15 inches thick. The substratum is light gray channery clay loam about 6 inches thick. Weathered shale is at a depth of 30 inches. lncluded with this soil in mapping are small areas of Dollard clay and shale outcrop on steep and very steep mountainsides. These areas make up 10 to 15 percent of the map unit. Permeability is slow, and available water capacity is low. Effective rooting depth is 20 to 40 inches. Surface runoff is rapid, and the erosion hazard is severe' This soil is used mainly for wildlife habitat and limited grazing.- The native vegetation on this soil is mainly Gambel oak, serviceberry, snowberry, and elk sedge. When range condition deteriorates, forbs and shrubs increase. When the range is in poor condition, Kentucky bluegrass, weeds, and annual plants are numerous. Prop-erly managing grazing maintains and improves range condition. Mule deer, wild turkey, and cottontail rabbit find habitat on this soil. rut lrt|Dlil(: til(,x.r ltr.l:, sltcil|lJn 5lrcr.t, ur.111,1.1, 1.11;,rr., ,103 2i E TI'ANCE. t' .TYPE ON }BI}iT IN BI,A,CK INK. i, 1 '..1 APPLICATION FOR: CA'I'ION }.IIJST B[ CO}IPLIjTi:D ACC G}1OUIiID I.IATJN TO BE USED FOR:A Pflil.uT T0 A PFNMIT TO NEPI.ACT}IENT A PInl\,tIT TO orHln USE GROUND WATM CONSIBUCT A WEIL FOR }IO. INSTAIL T'M'_ x D0ldEsrrc (1) rrvnsTocK (2) l{iJ}rrcrPAr (B) OT}MR i .. co}d4imclAL INDUSTRIAL IRXIGAT]O}J c) Li:l tr'2<-:v Ll:-'.G B' .. '.:,"1 ( r: r.) (t+ (: G (-tr--.- ,. I I.IELL LOCATION COLINTY {i' :\. , ADD]TION TO T}I LOT BLOCK ,il -:t_-,I'}IE WELL APPLICAIflT Street Ad.dress /ti l,:'* 2 j ''' /'tr' f of the /L'tr, I of Section .! (-. ,/ tl f, City & State Telephone No. }'IA}[E OF AQIII}'ER GR I,IATER IS TO BE OBTAINED FBOM:(-!/..,ir',-/,, }ROPOSID TO['A1 DEPIH OF WELL /,/.ts. Ft. BSTIMATED l,IA)trMUM rtt"lpINc nATE / fi GpM ATfiRAGE ANNUAT A}iIOUN'I OF GROI.IND I,{ATER To BE iSPROPRIATED Acre-feet ]r SrPATm GRoUT IRoGRA],I Materia].(, Intervals Pl-acement Method IROP6M CASING: ,/t L'(. r d,1.,.(R.C'N E ABOVE,MUST BE P.M. LOCATED I,I-ITH R].]FIXTfl\CE TO GOVINNML]]{T SI.IRVEY CORNERS, l,{OI,{U},{m.iTS On SECTION LINES By DISTANCI: AND tsEARING (DOI4ISTIC I,iELIS I4Ay BE LOCATED By LOT, 3LOCK, & SUBDIVISION.) ft. fronr section l.i_r, seetion lin (North or South)ft. from (East or llest) TIIINC # SUBDIWSION Grourd. Water Basi.n ^r'^ t'/,:, /r, 1i,', ,n- Water Mgmnt. Dist . 3' ,y' Anticipated d.r.i.I1ing date Or.m er of land on vhich wellis l-ocated.: Other water rights on this land /L .tLl tg" Plain Perf.(r.r, ft. toft. toft. toft. to 6 ,/' T Dri].ler ,, 1.. t- Acldress in. from in. from in. from in. from (,w". /4 t/ n ftftftft /.,. l. r.+ T '-Vr ) .. _..-.:,ar'1 t'.1r1 ,t'1/,., '(' Slgnature of Appl.icant IF WELL IS USED FOR TRRIGATION BACK'SIDE O}' TH]S APPLTCATIOJ{ }AJST BE CO]VPLBTLD.(r FOR OI'F]CE USE O]{LYCONDITIOF APIIiOVAI,APPLI CATION API,]]O\ED: VALID FoR oNE (f) reAA AT'TIB DATB ISSUBD UNLESS BXTENDED FOR COOD CAUSE S}IO}TN TO I}IE ISSIIING AGM{CY. PERMIT NO. 5583? DATE TSSUED AP 'lL*'rt,-L-. STA BY M{GI o/rr", o o Vio1et GoodseII Attn: Violet Mooney 0151 County Rd. 137 Glenwood Springs, C0 8160'1 David 0. & JoAnn Templ-e 0269 County Rd. 737 Glenwood Springs, CO 81601 Jimmy M. & Letha Sue Sills P.O. Box 981 Glenwood Springs, C0 81601 Lazier - SilIs Partnership Attn: Lazier Commercial Properties P.0. Box 1325 Vail, C0 81658-1325 David D. & Patricia A. Lincoln & William H. Grace P.0. Box 218 New Castle, C0 81647 Allen Lee & Connie A. 45855 HWY 6 & 24, #2 Glenwood Springs, CO PROPERTY OWNEBS I1IITHIN 2OO' BOLAND RANCH PROPERTIES ASSOCIATES CANYON CREEK PROPERTY Bell 81601 Dinel I i 81601 Richard P. & Debra A. 45855 HWY 6 & 24, #4 Glenwood Springs, C0 Colorado NAtional Bank of Denver, Trustee Attn: Trust #L4677 P.0. Box 5168 Denver, C0 80277 o Ba/a- d fye,*r,rf.i O - l,,r,J' SCHEDALD A oRDER NaMBER: 9701-B886 COMI'|IT|"IENT NAMBM; N/A 1 EFFECTIVE DATE: May 29, 7997 at l:15 A.M. 2. POLICY OR POLICIES TO BE ISST]ED:AMOANT OF INSURANCE s 260,000.00A. ALTA OWNER'S POLICY PROPOSED INSURED: GERALD E. EDDLEI'|ON, MAY EDDLEMON, DARRYLL E. PETTITT AND SANDRA LEE PETTITT B. ALTA I,OAN POLICY PROPOSED INSARED: BOLAND RANCH PROPERTIES ASSOCIATES 210, 000.00 C. ALTA LOAN POLICY PROPOSED INSURED: D. 3 THE ESTATE OR TNTEREST IN THE LAND DESCRIBED OR REFERRED T'O TNTHIS COMMTTMENT AND COVERED HEREIN IS FEE SIMPLE AND T.TT'LE 'THERETOIS AT THE EFFECTIVE DATE HEREOF VESTED IN: BOLAND RANCH PROPERTIES ASSOCIATES 4. THE LAND REFERRED TO IN THTS COMMITI'TEN?.T.9 DESCRIBED AS FOI,I,OWS: I 5 s ., SEE ATTACHED LECAL OhINERS: MORTCAGEE: TAX CERT. i $I 785.00 50.00 10.00 Examiner: Cl.oser: rm AAT I D RLH Linda SIGNATARE STEWART TITLE OF GLENWOOD .SPRTNG.S, INC.BOl COLORADO AVENT]E GLENWOOD SPRINGS, CO. ( 303 ) 945-s434 FAX NO. (303) 945-7081 B1 601 STEII'AIiT TITLI 9rc-' GUARANTY COMPANY SCHEDALE A PROPERTY DESCRIPTION 2RDER NO: 97078886 TOWNSHIP 5 SOT]TH, RANGE 90 WEST OF THE 6TH P.M. Section 25: Section 36: ,e All that part of the W7/25w1/4 ly,ing westerly of Canon Creek and East of the Counby road, EXCEPT THOSE PARCELS theretofore conveyed by Deeds recorded in Book 770 at Page 435 as Reception No - 66755, Book 777 at Page 87 as Reception No. 106454, and Book 275 at Page 553 as Reception No. 185385 of Lhe Garfield County Recot'ds. All thaL portion of the W7/2Nw7/4 lying and being htester)y of Canon Creek, EasterJy of the County Road and [,orth of the right of way for Interstate 70. COUNTY OF GARFIELD STATE OF COLORADO NOTE: THE LEGAL DESCRTPTTON, REQATREMENTS AND SCHEDULE B_SECTION 2 ARE SABJECT TO CHANGE WHEN THE FINAL SURVEY IS DELTVERED. STEWAR.T TITL CUANANTY COMPANY i 99c-t \ o OSCHEDULE,B - SECTION 2 EXCEPTIONS ' o ORDER NalqBER: 910L8886 THE POLICY OR POLICTES TO FOLLOWING UNLESS THE SAiIE THE COMPANY: 8. The affect, of inc)usionsc.onservancy, f ire protectLon,district. or incLusjon in anyarea. tn any general or specific watersoil conset.yation or otherwater serruice or street improvement . COI'IMITMENT NUMBER:N/A CONTAIN EXCEPTIONS TO THE TO THE SATISFACTION OF or Lode to extract andfound to penetrate oras reserved in UnitedBook 12 at page 775 as BE ISSUED WI ARE DISPOSED LL OF 1. RTGHTS oR cLArMs oF pARTrEs rN po^ssr.s^sroN Nor sHowN By rHEPUBLIC RECARDS.2. EASEMENTS, OR CLAIMS OF EASEMENTS, NOT SHOIITN BY THE PUBLIC RECORDS. 3. DISCREPANCIES, CONFLTCTS IN B\UNDARY LINES, SH)RTAGE TN AREA, ENCROACHPIENTS, AND ANT FACTS T4IHI1H A CIRRECT ST]RVEv ANDINSPECTION OF THE PREMISES WOULD DISCLOSE AND WITICH ARE NOT STIOWN BY THE PUBLIC RECORDS.4. ANY LIEN, OR RIGHT TO A LIEN, FOR SERVICES, LABOR OR MATERTAL HERETOFORE oR HEREAFTER FURN-rSHED, IMP1SED By LAw AND NoT SHOWN BY THE PABLIC RECORDS.5. DEFECTS, LIENS, ENCUMBRANCES, ADVERSE CLAIMS OR OTHER MATTER$,IF ANY, CREATED, FIRST APPEARINC TN THE PABT,IC RECORDS ORATTACHING SABSEQAENT TO THE EFFECTIVE DATE HEREOF BUT PRIORTO THE DATE PROPOSED INSURDD ACQATRE.S OF RECORD FOR VALUETHE ESTATE OR INTEREST OR MORTGAGE THBREON COVERED BY THTSCOMMTTMENT.6. WATER RIGHTS, CLAIMS OR TITLE TO WATER. 7' Any and a)l unpaid taxes and asse.ssments and any untedeemedsa J es.tax 9. Right of the proprietor of a veinhis ore therefrom, should the same beintersect the premises hereby granteil,States Patent recorded July 6,- lB92 inReception No. 14249. ( SeL. 25) remo.vq 10' Right of the proprietor of a vein or lode to extt-act and removqhis ore therefron,- shbuld the "rr. iZ" t"""d to penetrate orjntersect the premises ftereby granted, as reserved in Unitedstates patent recorded octobZr'77, jegO-i" Book 12;i e.g" 62 asReception No, 10843. (Sec. 36) 71. Maps and Statements of the folJowing ditches: FILED Continued on next page RECEPTION NO. STE\^/ART TITL. i* goc-l NAME GUARANTY COMPANY , CONTINUATION SHEET SCHEDALEB-SECTION2 ORDER NAMBER:97018886 The Virginia Ditch Chenoweth & t'lings Ditch Chenoweth & Mings Ditch Chenoweth * nings Ditch Wolventon Ditch COI"IMITI,IENT NUMBER: N/A July 17, lB99 August 77, 1886 Septenber 1-1-, lBB6 November lB, 1886 July 30, lBB9 21_BB 9 2928 3079 33.32 9324 72. Right of way for the enlargement of the Prendergast/Spion Kop Ditch recorded February 10, 1921 in Book L24 at Page 409 as Reception No.74258. 73. Right of way .for Prenderlgast Ditch recorded February 26, 1927 tn Book 724 at Page 42i as RecepLion No- 74440. . I 74. Right of way for ,the Wol.verton Mesa Ditch as recorded June 30, I in Book 64 at Page 484 as Reception No, 32720. 15. Basernent and right of way for the use, opetation and maintenance the WiJ]iams Canai as grgnted by Brinkley B. Brown to the Williarns Canal company, recorded tlay )9, 1975 in Book 474 at Page 44 as Reception No. 267628 sriiwa.R.T a'rrt. i'ii' .t 'I : fia-1 B GUARANTY COMPANY a o OFFICE OF THE STATE ENGINEER DIVISION OF WATER RESOURCES JERIS A. DANIELSON State Engineer (:t.ii, r Lc..u Urz - t{ I Y mI#rilRrftt.Ernl Ill' siP 1; rssr ']lr ROY ROMER Governor September 77,'J.991 Mr. Andrew McGregor Garfield County Regulatory Office and Personnel 109 Bth Street, Suite 303 Glenwood Springs, CO 81601 Bo1and Ranch Properties Subdivision Exemption NW1,/4, NW1.,/4, Section 36, T5S, R90W, 6TH PM Water Division 5, Water District 38 Dear Andrew, We have reviewed the above referenced proposal to subdivide a 20.5 acre parcel into n,rro parcels of 18.5 arrd 2 acres. The property is basically located at Canyon Creek and the I-70 Frontage Road. The two acre parcel has an existing single family residence and a cabin which are served by a well (Permit Number 55837) located on the proposed 18.5 acre parcel. The proposed water supply for the two existing buildings on the 2 acre parcel and one proposed building on the 18.5 acre parcel is this existing well. Upon approval by the County for this exemption, the applicant can retain the domestic well providing that the existing well is located on the same parcel as the n,rro dwellings. The applicant can then apply for an additional well as the onlv well on the larger tract to be used for household- use-onlv. The existing well cannot be allowed to serve three single family dwellings unless it has hj sf ori cally heen servr:r g tluee dvrelli::.gs. Based on this, we can recommend approval of this exemption. Should you have further questions regarding this submittal, please contact this office. Sincerely, J RE 1313 Sherman Street-Room 818 Denver, Colorado 80203 (303) 866-3581 FAX [303] 866-3s89 T JTS(0/clf:boland Orlyr, Bell, Division Engineer Joe Bergquist, Water Commissioner Bruce DeBrine cc: Water Resources Engineer 1-- - d .i Wnren Weu AcneenaENT A. PARTIES The parties to this Agreement are BOLAND RANCH PROPERTIES ASSOCIATES, a Colorado limited partnership, (Seller) and GERALD E. EDDLEMON, WILLA MAY EDDLEMON, DARRYLL E. PETTIT'I and SANDRA LEE PETTITT (Buyers). B. RECITALS The reason and purpose for enteringinto this Agreementis premised upon the following: 1. On July ?.6,1991,5e11er sold and conveyed to Buyers all of its right, title and interestin and to the following described real property situate in the County of Garfield and State of Colorado: Township 5 South. Range 90 West of the 6th P.M. Section 25: All that part of the WIhSW%lytngWesterly of Cafron Creek and East of the County road, EXCEPT THOSE PARCELS theretofore conveyed by Deeds recorded in Book 110 at Page 435 as Reception No. 66755, Book 171 at Page 81 as Reception No. 106454, and Book 275 at Page 553 as Reception No. 185385 of the Garfield County records. Section 36: All that portion of the W1/21'JW% llng and being Westerly of Canon Creek, Easterly of the County Road and North of the right of way for Interstate 70. TOGETHER WITH 1.20 c.f.s in the Ming, Chenoweth and Wolverton Dtch, Priority No. 538. THERE IS EXCEPTED from the above-described property the following parcel, to-wit: A parcel of land situated in the wlh9wyr of Section 25 and the W'h\lWyl- of Section 36, Township 5 South, Range 90 West of the Sixth Principal Meridian, County of Garfield, State of Colorado. All bearinp contained herein being relative to a bearing of N. 8716'04" E. between the Northwest corner and the North One Quarter Corner of Section 25 ofsaid township and range. Said parcel being more particularly described as follows: ,. Beginning at a point whence the Northwest corner of Section 36 of said township and range bears N. 45"00'06"W.7362.74feet thence S. 90'00'00"8.7il.}zfeet to the centerline of Caflon Creek thence continuing along said centerline of Caflon Creek the following two courses: S.7325'39"E.297.74feeU thence S. 31o44'45"E. 108.58 feet to the Northerly right-of-way of Interstate 70; thence continuing along said right-of-way L8{'.7l feet along the arc of a curve to the right, the curve having a central angle of 01o51'36" a radius of 5689.60 feet, the chord bears S. 88"5243"W.184.70 fee$ thence continuing along said right-of-way S. 89%8'43" W. 7?8J1 fee$ thence leaving said right-of-way N. 21'37'06"8.714.92fee! thence N. 08"00'57' E. 177 .59 fee! thence N. 09o33'23" W. 72.35 feet; thence N. 09"09'54" E. 1.80.59 feet to the point of beginning, said parcel containing 2.001 acres, more or less. (Buyers' Property) 2. There is now sifuate and in place a water well on Buyers' Property which supplies domestic water to two (2) residences located on a two (2) acre tract of land adjacent to the Buyers' Property described as follows: A parcel of land situated in the WI/LSW% of Section 25 and the WthNW% of Section 36, Township 5 South, Range 90 West of the Sixth Principal Meridian, County of Garfield, State of Colorado. All bearings contained herein being relative to a bearing of N. 8P16'04" E. between the Northwest corner and the North One Quarter Corner of Section 25 of said township and range. Said parcel being more particularly described as follows: Beginning at a point whence the Northwest corner of Section 36 of said township and range bears N. 45"00'06"W.7362.74fee! thence S. 90"00'00'E,7il.l}feet to the centerline of Cafron Creek thence continuing along said centerline of Caflon Creekthe following two courses : S. 1325' 39" E. 297 .7 4 feeU thenc e S. 37o M' 45" E. 1 08.58 feet to the Northerly right-of-way of Interstate 70; thence continuing along said right-of-way 1,U.77 feet along the arc of a curve to the .ight, the curve having a central angle of 01o51'36" a radius of 5689.60 feet, the chord bears S. 88'52'43" W. 7U.70 feet; thence continuing along said right-of-way S. 89"48'43" W. 128.11 fee$ thence leaving said right-of.-way N. 21"37'06'E.134.92fee! thence N. 08"00'57.E.777.59 fee! thence N. 09'33'23'W.72.35 feeg thence N. 09"09'54" E. 180.59 feet to the point of beginning said parcel containing 2.001 acres, more or less. (Seller's Property) -2- The water well also supplies domestic water to one residence located on a tract of land adjacent to the Seller/s Prop".ty (Adjacent Property). This well shall hereinafter be identified as the 'Existing Well." 3. The parties have agreed that the Existing Well shall continue to supply domestic water to the resiiences located on Selley's Property and the Adjacent Property until Buyers provide a new well to be located on the Selle/s Property to supply d-omestic water to the ,"ridur,.ur located on Seller's Property and the Adjacent Property within the time frame hereinafter set forth (New Well). 4. It is the intent and pulpose of this Agreement to set forth the agreement between the parties pertaining to the use of the Existing Well, the construction and installation of the New Well "r,d th" agre-ement of the parties in the event the New Well cannot be drilled because Seller has not provi?ed a water well permit necessary to allow and authorize the drilling of the New Well. C. AGREEMENT The parties agree as follows: 1. The recitals above set forth are true and correct' Z. Buyers hereby convey to Seller all of their rightt title and interest in and to the Existing Well, together with all appurtenances thereunto attached or appertaining and together withfan easerient and right-oi-way for !h" _y1tu, line extending therefrom and all ap"purtenant facilities necessary to operate the Eisting_Well in the same fashion as the same now "*irtr. The easementand right-of-way shall be of a sufficient width to maintain the ExistingWell and all appurtenances. 3. At such time as Buyers shall elect but in no event earlier than six (6) months following date of notice in writing delivered to Seller by Buyers of their intent to drill and construct th; New Well, Buyers -"y .uus" to be drilled and constructed upon the-Seller's property the New Well, the location of which shall be mutually agreed by the parties. The New Weft sfrU produce a quantity of water equivalent to the supply 9f y{-"-. now being supplied to the residences on Seller's Property and thL Adjacent Property and shall be of a quality approved by the Health Department oi the State of Colorado. In no event shall the six (6) month nolic9 rlquired under this paragraph be given earlier than July 15,7992. Upon receipt of notice to drill the New Well from -Buyeis, Sellerihall make application for and obtain a well permit allowing and authorizing the drilling and construction of the New WeIl. 4. Upon the completion of the drilling and construction of the New Well, the Buyers shall cause the same to be connected to the residences on the Seller's Property and the Adjacent Property and all equipment and appurtenances attached thereto as are necessary to prorid" domestic water to the- residences located on the Selle/s Property and the Adjacent Property, the same as is now being supplied thereto. -5- 5. The drilling and construction of the New Well and all plumbing a.nd appurtenances connected thereto-shall be performed and installed in a good-and workmanlike ,rijnn.r as prescribed by statutes, rules and regulations of the State of Colorado and the County of Garfield and in a fashion satisfactory to the Seller. 6. Upon completion of the New Well and acceptance the_reof by the Seller, the Seller shall convey all of its right, title and interest in and to the Existing Well, appurtenant facilities and easem"r,t.or,uuyed-to it provided in paragraph C.2 above, t9 the Buyers and the Bry"* shall thereupon be entitled to iisconnect all facilities emanating therefrom which now supply the residenCes located on Selle/s Property and Adjacent Property. Z. All costs and expenses incurred in drilling and constructing the New Well and connectingthe same to the residenceslocated on the Seller's Property and Adjacent Property as ubou" provi"ded shall be at the sole cost and expense of the Buyers. - Water service to the residencei located on the Seller's Property and Adjacent Property shall not be interrupted during the drilling and construction of the New Well and the connection thereof to the residences. 8. In the event Buyers give notice of their election to drill the New Well as provided in paragraph C.3 above "r,d S"["r is unable to provide to tfrel the necessary well permit allowing aid authorizing the drilling and construction of the well, then and in that event ih" Brry"., sh2jt be relieved froin all further duties and obligatiors under this Agreementand Seller shall cause to be executed and recorded in the office of the Clerk and Recorder of Garfield County, Colorado a document in writing conveying to Buyers all of its tigh.! title and interest in and to the Existing Well and in and io "ny "r,a at other rights and privileges granted to it under this Water Well Agreement. g. The terms and conditions hereof shall extend to and be binding upon the parties hereto, their successors and assigns of all kinds' IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year set opposite the name of each, with effective date hereof as of July ?h,7991. Date:4 Date: ,lr/ -,5-- I 1- BOLAND RANCH PROPERTIES ASSOCIATES Brinkley B. Brown III GERALD E. EDDLE MON 7 By Date: 'n - 5- o. '# -4- a eDate: I A -5-1t Date: /Z-Sq STATE OF COLORADO COUNry OF GARFIELD DARRYLL PETTITT RA PETTITT ) ) ) ss. The foregoinginstrument was acl<nowledged beforeme tni.r.da" y.ot . NC4llre.t, 1991.,by Brinkle;, B.-Brown III as General Partner of Boland Ranch Properties Associates. Witness my hand and official seal. Notary Public Address: ?oDGr*d A^u.n rtu-o-, 6 (n^,occd5p'^'' n85 C d E( Goz My cornmission expires: I l,lra- -7 I 1, I ? ? q Colorol u STATE OF €*tTER}.+iA COUNry Or&rk-d a The foregoing instrument was acknowledged before me this'-S{aay ) ) ) SS. of fuc, ^b"t 1997,by Gerald E. Eddlemon, Willa May Eddlemon,Darryll E. Pettitt and Sandra Lee Pettitt. Witness my hand and official seal. NotarY Public Address:f SdGr *^dA.Qn 4LtG tnyuttud $rr,tgs, Co I / a c t My commission expires: l\4*,/ t 7, t?gy -5- Folrn i'{o. GWS-2s APPLICANT {EfiovED OFFICE OF THE STATE ENGINEER COLOHADO DIVISION OF WATER RESOURCES 8'18 C.ntrnnl.l Bldg., 1313 Sherman SL. tlonvcr, Colorado E(Zol! (3Ar) 88&358r WETI. PEBMTT NUMBER Dv. 5 CNTY. 23 ].,IC o4t0283 tr WD 39 DES. BASIN - MIr Nw 1i4 Nw 1/4 section -39- - Twp 5S , Range 90 w 6:-trP.g Lot: Block:Filing: Subdiv: APPROVED WELL LOCATION c GARFTELD BOI.AND RANCH PROPERTIES P O BOX tL92 GLENWOOD SPGS , CO 8l_602 3 03 -94 5- 5463 DISTANCES FROM SECTION LINES 4l-OO Ft. from South Secticn t.irre 5200 Ft. from East Sectic,n l..irreEXPANSION OF USE OF D(SIING WELL ISSUANCE OF THIS PERMIT OOES NOT CONFER A WATER RIGHT CONDMONS OF APPROVAL1) This well shallbe used in such a way as to Cause no materiat initrry, to existing water rights. The issuance r;f the Permit does not assure the applicant that no inlury will occur to another vested waterlight or preclucle alrolher owner of a vested water right from seeking relief in a civil court action. 2) Approved pursuant to cRS 37-90-137(2) for the expanded use of an existing well, permit no. 55g37, appr()pt,aling ground water tributary to the Colorado Biver as an alternate point of diversion to the Avalanche Canal-anr i Sigrlron on the condition that the well be operated onlv when a water allotment contract between the well owner arr,i the West Divide Water Conservancy District for the release of replacement water from Ruedi Reservoir is in r,ffcct, or under an approved plan for augmentation. 3) The use of ground water from this well is limited to ordinary household purposes inside up to three (3) single lalnily dwellings,watering of non-commercial domestic animals. The combined irrigation of home lawns and gar'dr ns in Boland Ranch Properties shall not exceed 1 acre. 4) The maximum pumping rate shall not exceed 1S GpM. 5) The average annual of amount of ground water to be appropriated shall not exceed 3.63 acre-feet. Total drrer:;ions from all the wells under West Divide contract # 910613-BRP shall not exceed B.4g acre-feet. 6) A totalizing flow meter must be installed on this well and maintained in good working order. permanent re;o, ds 6f all diversions must be maintained by the well owner (recorded at least annually) and submitted to the Di ision Engineer upon request. 7) lssuance of this permit cancels permit no. SSg37.8) The owner shall mark the well in a conspicuous place with well permit number(s), name of the aquifer, 6,,1d oourtcase number(s) as appropriate. The owner shall take necessary means and precautions to pr€serre.hese markings. Km t t. i5- )t . V-d . Ao;-L;' 0Wfrff:ft'S fi0 Mi,to.-.Bv flu rr r ,-{ Ll:i2 EXPIRATION DATEReceipt No. sur6Enoin"..\032891-8D -----'. DArE rssuED N(]v 1 g l99l F rlrnr lrlo. (iw$-25 AI]PI.ICAN OFFICE OF THE STATE ENGINEER COLORADO DIVISION OF WATER HESOURCES 818 Crntcnnial Bldg., 1313 Sherman St, D.mrsr, Colorado 8020it (3O3) 86&3s8r Lot: Block: Filing: Subrliv: LIC APPROVED WELL LOCATION GARFIELD I]C T"AND RANCH PROPERTIES P O BOX 7L92 :;r ENWOOD SPRINGS, CO 81602 rc l-945-5463 I,ENMN' 'iO CONSTRUCT A WELL OF TH r|fflfio rco:A SW Ni)V 1R t99l 114 SW 114 25Section0w5SRange99!h p.rrr.Twp DISTANCES FROM SECTION LINES550 Ft. from south section Line48oo Ft. from East Section Line DOES NOT CONFER A WATER RIGHT l)Tlrislellshallbeusedin-suchawayas.ffixistingwaterrights.Theissuanceofthe perrnil d{)es not assure the applicant that no iniury will occur to another vesGo water-right or preclude anotherowner of a vested water right from seeking relief in a civil court action. ;') Tlre con:;truction of this well shall be in compliance with the water Well Construction and pump lnstallation Flules2 ccr I 4rt2-2, unless approval of a variance has been granted by the State Board of Examiners of water weltconst'uction and Pump lnstallation contractors in accordance with Rule 17.ll) 46rprcr're'l pursuant to cRS 37-90-137(2) for the construction of a well appropriating ground water tributary to thecolorrrd<' River as an alternate point of diversion to the Avalanche canal and siphon on the condition that the wellbe op'rrerted onlv when a water allotment contract between the well owner and the west Divide water conservancyDisttir:l l'rr the release of replacement water from Huedi Reservoir is in effect, or under an approved plan foraugtn{)nl 1tion. 4) Tlte urie rf ground water from this well.is.limited to ordinary household purposes inside up to three (3) single familydwelli;rgr', watering of non-commercial domestic animals. The combined irrigation of home lawns and gardens inBolanrl F anch properties shall not exceed 1 acre. 5) The n,ax'rnum pumping rate shall not exceed 1S GpM. t, Tlte a 'er rge annual of amount of ground water to be appropriated shall not exceed 3.63 acre-feet. Total diversionsfrom i'll t re wells under West Divide contract # 9106't3-Bip snatt not exceed g.4B acrejeet. 7) A totaiizilrg flow meter must be installed on this well and maintained in good working order. permanent records ofall div'lrsions must be maintained by the well owner (recorded at least annually) and submitted to the DivisionEngin,)et upon request. B) Tlte w:rll ;hall be constructed not more than 200 feet from the location specified on this permit, and more than 600fer:t frrm any existing well. 9) rlte o vn':r shall mark the well in a conspicuous place with well permit number(s), name of the aquifer, and courtcatse ttutrtber(s) as appropriate. The owner shall take necessary means and precautions to preserve thesemitrkit gs. Rrr' it-t5 - 9t 0UIiru[n'S U Z*u.-.€4pfut";. By EXPIRATION DATE lr,r1Y i .3 l$la WETI PERMIT NUMBER 523 o40zaz 39WD DES. BASIN - MD - Fie'r eigrt N ,. o32Berg'5 el-eiiT\ DATF lcclrtrn Dnl.q.r.rny & Be.r-corrrn, P. C. ATTORNEYS AT LAW DRAWER 790 ROBERT DELANEY KENNETH BALCOMB JOHN A. THULSON EDWARD MULHALL, JR ROBERT C. CUTTER SCOTT EALCOMB LAWRENCE R. GREEN ROBERT M. NOONE TIMOTHY A. THULSON Glrrwooo SentN<ts, Colona,oo aleoe December 2, 199L tl {;l I' o"ll DEC 2 tget GAIiFIELD COUNry AIA COLORADO AVENUE 945-6546TELEPHONE945-237 I TELECOPT ER 945-8902 AREA CODE 3O3 Andrew McGregorGarfield County Planner 109 Eighth Street Glenwood Springs, CO 81601 Dear Andrew: with have This letter concerns the apptication of Borand RanchProperties for a subdivision approvar in canyon creek. As runderstand the problem, yotr have inquired why there is no writtendocument creatjng an easement from the we]l to parcer B, theparcel -upon which the werl would be used for the time being. rncolorado pursuant to Leonard v. Buergerr copy enclosed, waf,erconveyanclng facilities and the easement theiefor may come intobeing either by presumption or orar agreement. rt i; our opinionthat under the circumstances of this matter, Borand Ranch clnt3ke advantage of either the presumption or the "permission" ofthe owner of Parce1 A (also Boland Ranch). The result is that aneasement by an operation of l-aw exists to use the well for thebenefit of Parcel B. Boland Ranch's intention is to obtain a new well permit andconstruct a new well on Parcel B. They have obtained West Dividewater conservancy District water service and currently havepending a water court case to accomplish this result. We believethat the well permit will be forthcoming within the next three tofour months time. we trust the foregoing wilt satisfy the county's concernthis aspect of our apprication. please contait me if youany questions. Very truly ours, DELANEY BALCOMB , P.C SB: pc xc: By Ron Liston Brinkley B. Brown, III Scott Ic [ 130 Colo Sept., '54 ] LuoNano o. Buoncon 497 No. 17,235. Bnunar.rrr.p L. LeoNaRo ET AL. o. Burncrn. (2?6 P. [2d] e86) Decided November 29, 7954. 1954. tion of a contract and An action for injunction to restrain defendants or someone under their direction, for interfering with plain- tiff's irrigation ditch, and for damages. Judgment for piaintiff. Affirmed. consideration paid ts. written opinion. 1. WrtrR Rlcnts-Ditches-Right of Waa. ,,There is no law which forbids one to grant permission to his neighbor to dig an irriga- tion ditch across his land rvithout first purchasing a right of rvay and getting a deed to it." 2. Ditchcs-Rigllt of Il7dU. ',\Yhen x * * the ditch actually is excavated and put into use rrithout objection, or by approval, the orvner of land traversed thereby may not thereafter rvith- drarv his consent, deny the right of maintenance or destroy the ditch." 3. Ditches-Right of Wclu-Presumption. ,,!vhere the ditch has been in existence for any appreciable time, consent to its original construction is presumed." 4. Ditchcs-Datnages-Appeal and Error. In an action for in-junction to restrain defendant or some person under his direc_tion flom interfering with his irrigating ditch, and for dam- ages, it is held on reviel, ,,The presumption of regularity suf_ ficiently supports the trial court,s awards.,, City and CotLntg of , Jr., Judge tiff in error. Jn., for defend- Error to the Distnct Court of Grand Countg, Hon. Addison M. Goodtng, Judge. Mr. JonN P. TlronnpsoN, for plaintiffs in error. Messrs. Beawann & Banxano, for defendant in error En Banc. 498 Lroxeno o. Bunncrn [ 130 Colo. Mn. Jusrrco Cr,anx delivered the opinion of the Court. . Buen_con, as plaintiff, instituted injunction proceed_ings alleging interference with his iirigation ditch by defendant, F. J. Leonard, or some pe.son under his di_rection, and for consequent damagei. Upon it later ap_pearing that the property traversed b}r the ditch wasowned jointly by Leonard and his wiie, she aiso wasmade a party defendant. Judgment of the trial court was in plaintiff's favor. Plaintiff and defendants are the owners of separatetracts of iand located in the upper valley of the Wit_liams Fork of the Colorado Rivei. The lands orvned bydefendants lie southerly from those of plaintiff andabut on plaintiff's property for a distance -of somewhat less than a quarter of a mile. Lying westerly from theforty-acre tract of defendants which is adjacent to thelands of plaintiff, and also abutting on piaintiff,s prem_ ises, is a forty-acre tract of united states national iorestland. Traversing defendants, premises and florving in agenerallv northerll- or northeasteriy direction is a smallcr.ee\, a tributary to the Williams Fork, the name ofwhich appears variously in the severai documents in-ciuded r.vithin the file of this case, as ,,Reid." ,,Reed,,, "Read" Creek. Not knowing whictr is correct. rve shailrefer to it as Reid creek. Reference is made to the ditchin contro'ersy as the Glenmar Ditch. It di'erts waterfrom Reid Creek on lands now owned by defendants andtraverses their property for a distance of approximately 700 feet onto the forest tract above mentioned. thenclto plaintiff's lands. Defendants acquired titie io theirlands by' purchase in 1950, intending to use same forha;r raising and commercial recreation. At the time ofits purchase, evidently the ranch was considerabiy rundown and Reid creek was nothing but a series of blaverdams. In 195i defendants caused the pools made by saidbeaver dams to be drained and the Lnd forme.ly "o,r_ered thereby to be leveled so that grass seed migfrt Ue i lolo ourt. :eed- .r by s di- ' ap- was was 'ourt Sept., '54 ] Lrowano ,ur. Burncrn 4gg sown thereon for the purpose of raising hay. To effectthe thorough drainage of this field, defendants causedthe channel of said creek to be diverted into a ditch theS' constructed around the outer edge of said area. In the process of this improvement the Glenmar ditch also was leveled and its point of dir-ersion obiiterated. As aresult of defendants' activity in this connection and theirrefusal to permit reestabhshment of the Glenmar ditch, this action was instituted. - Admitting that no consideration had been paid and no deed had been executed conr,,er-ing a right of u,ay forthe Glenmar Ditch, plaintiff reliei upon tl.,e cloctrine that a ditch constructed bv a partr- ovei land-" of another.by consent of the owner, or t-ithout objection on hispart. and used as the means for the carriage of l,r,ater forirrigation purposes over a period of ,l,ears, has a right of s'av which malr n61 be destror-ed b1, the ou,ner of ifre Iands over which it crosses. Defendants allege as grounds for reversal: (1) That the trial court erred in awarding nlaintiff an easement across defendants' land, since none such appears bygrant of record, and that even if there had at one time b-een such a right of way, it had been abandoned; thatthe ditch was not apparent at the time defendants pur- chased their property, had no headgate, and did not con- tinue to plaintiff's land; (2) that the trial court errecl i,awarding damages to plaintiff for the cost of construc_tion of a new headgate; and (3) in awarding damages toplaintiff on account of shortage in his 1g52 ha5r ..o! .luu to lack of water. Incidently, plaintiff likewise complains and assigns as cross errors that the trial court, s.hile correct in award_ing damages for shortages in clefendants, 1952 hay crop, committed error in awarding an jnsufficient amount, analiken ise in refusing to awaid additional damo.ges on ac_ count of loss of pasturage. Some few days after the conciusion of the final hear_ ing, the trial judge prepared and filed his ,,Opinion and rate ivil- lbv and ,rhat the the en-I- rest lna :rall :of in- 3d," haII :tch ,ter :nd ely r.tce reir for of 'un i'er aid cv- be 1. , ri 500 Lnowano u. Burncrn [ 180 CoIo. Memorandum of Decision', in which he carefully setforth at length his findings upon every issue of tact in-volved in that proceeding and 1ikewiie the conclusionsof law considered by him applicabie thereto. From ampieevidence contained within the record the trial courtfound that the irrigation ditch now known as the Gien-mar ditch was first constructed about fifty years ago forirrigation of lands near the vicinity of its-point of iiver-sion from Reid Creek; that in 1g15 one Baidwin acquiredthe lands now owned by defendants and also occupled as a homestead a portion of the lands now belonging toplaintiff and thereupon extended said ditch so- as" tocover lands on his homestead; that in rg22 one Markleacquired lands adjacent to the Baldwin homestead, nowlikewise or,vned by plaintiff, and further extended saidditch so as to cover a portion of said 1ands; that from 1915 until 1952 waters di'erted from Reid creek throughsaid ditch lvere never used on any part of the lands ni,vowned b1- defendants; that on the Mark]e and Baldwinhomesteads now orvned by plaintiff, the waters carriedby said ditch "har.e been continuously used si".u atleast 1922 for the irrigation of both.,, The trial court further found that in 1g22 arrd priorthereto, the waters carried. by said ditch were diverteddirectlv from the flo."ving channel of Reid .Creek bvmeans of a constructed headgate therein, .ivhich laterbecame submerged and rendered ineffective because ofa series of bea'er dams erected in that area. and thatthereafter the suppl;, of water for said ditch rvas takenfrom some one or more of the pools formed Uy ,"iabeaver dams. It is _not certain, said the trial "court, whether a structurai headgate was maintained in any oisaid bear.er dams or whether the water supplying iaidditch was released therefrom b;r other *u"rri.- Fol16wingthe ditch on down from its souice, the trial court furtheifound that at one time it had been constructed through_out its length onto lands now belonging to piaintiff, Eutlater, at a point within the forest t-raci, the ivater'car_ Sept., '54 ] Lnowano u. BurnceR 501 ried by it had been permitted to flow dou,n a depressionto plaintiff's land, where it was caught and apphed to imigation of the fields by pickup ditches. The trial court then related the facts concerning the activities of defendants when they acquired title to theirpresent iands as hereinabove stated. A temporary in-junction having been granted prior to final hearing.plaintiff proceeded thereunder to clean out his ditch iothe place where it intersected the by-pass canal con- structed by defendants and there he inserted a diversion headgate. The trial court held that the defendants were l+,ithout lawful authority to destroy said Glenmar Ditch and its point of diversion regardless of how that diver- sion had been accomplished; and that, since it u.as im- possible and possibly improper to undertake or requirea restoration of conditions as they existecl prior to tl-retime when defendants drained and leveled said beaver dams, piaintiff's rights might be protected onl5. |1, per-mitting the installation of a headgate in the channel constructed b;' defendants to carrv the u.aters of saidcreek, the cost thereof to be bornl by defendants. Onother points raised by defendants, the trial court treated each specifically and. entered findings adverse to defend- ants' contentions. yit! respect to damages, the trial court alioq,ed plain-tiff $495.90 because.of shortage in his ha;- crop in 1SSZdue to defendants' interference with his rru,ater supply through the Glenmar ditch, and $188.22 as the .ost ttplaintiff for the placement of a proper headgate to which reference has hereinabove been made. [1-3] Defendants contend that al1 the evidence ad- duced in this case on behalJ of plaintiff shows that saidwater right rn,as instituted by their predecessor in tiile, Reid; that the ditch as extended by Baldwin went onlyto lands then owned by him and that at no time was saihditch used by any person other than the owner of theland served thereby. In this contention defendants arein error, as the trial court found, because it is very clear 502 Lnorvano u. BurncrR [ 130 Coio. from the record, that Jollowing the orvnership of saidBaldwin, preclecessor of titie no"t onty of defendants butIiker,vise to part of the h;il-;;; oumed by ptaintiff,said tracts became separated in ownership, and there_after water continued- to be .uppU"a to the Baldn inhomestead, now 9r,vn9d b;, ptainii'ifi without objection orinterference bv the then 6rn1ner. oi tfr" lands now ownedby defendants. Furthermore,-th"r; was no connectionwhatsoe'er between defendants,-iredecessors in ti,eand Markle. Stripped of all its frmmings and orna_mentation, the claim of defendants actuali,"l, tfr"i, tfr"."is in existence no right of ;;y i"; the Glenmar ditchbecause there is shown of ,".ora-rro grant of any ease_men! fo1 its use, and the evidence is insufficient to showacquisition b1' adverse user. They discorni trr" ffi;;;ta\9n- by plaintiff that a grant [y ior*"f document fora ditch right of wa)/ is not"requirla. ffrul,;"pilil;t,^i,larv-only such 'ights of war, ,r'"r. p"ia for and conve'edb1-fo.mai document y"y n";";;d;;. i#;*l;ff;a principle unr-elated tL .any q.,lrtiorr, ,ririrrg -irr-i;; case. that pri'ate propert5. may not be taken withoutdne process of jaw ,rrd upo, pry*L"t of just compensa_tion. Were this an action fo" pro"".ement of a right ofwaJ- Llpon *'hich to construct ind operate a nonexistentditc'' defendants' contention wourd'irar-e merit, but thisis not sucir a proceeding. It is one'thing to state thatthe orvner of Iand ove. whi.h ,"oifrl. contemplates con_struction of an irrigation ditch has the righi-io-;;**;just compensation, ind quite ,"otfru, to contend that heis required to do so. Thlre ir ;;--il which forbids oneto grant per-mission,to his "uigtbo.'io dig an irrigationditch across his land without f-irst -purchasing a right ofwal' and getting a deed-to it. /Wnen', under such circum-stances, the ditch actually is excavaied and p;til;;;;without objection, or by "pp.o"rf-ihu o*.ru" of landtraversed th_ereby may not thereafter wiilrdraw his con_sent, denv the ris.ht of mainten"r"" o" aestroy ttre;tt.h.Such consent neid not even be in writing.f Where the Sept., '54 ] Lroxeno z:. BurRcrR 508 ditch has been in existence for any appreciabie fi.me,consent to its original construction is prtiumed.The rules of law stated in the preceding paragraphare clearly devoid of novelty, since itrey rra.[ iGr'r"Jt,in the territorial _days of this jurisdiction U tfr"-l,"r"r_able case of. yuttkei u.. t{ichot"s. l-Colo. 5ii. i;" ;;i"_cipies announced therein not oniy met approval in slrb_sequent legisiation, but they atso trecamu trr" rrr.i.-'otfuture case law in Coloradd, and remain unchanged tothis day. While the facts ln ihe case at bar differ some_u,hat in detail from those in yunlcer o. Nichols, ,rlprn, *".." p nothing to.distinguish the appticabJe p.;,l.i1i.,This also is true with resltect to the case of ,Scluillirro r.Ront inq er, 4 Coto. ]!! ; o_e G r af f enri e i-;. i;";;"," ij "ii," App. 131, 47 Pac.902; Graybili u. Corlett, OOtoio. #i,154 Pac. 730; ait of which d"ecisions;;";';;; ""#o ,,linappror.al many times. To onh- one of these citailorr, .iow_e call particular attention, tirat being Rogers ,. iirr.i,Clear Creek Ditch Co., 6J Colo. 216, ZtS, "teS pac. 2{g,wherein the court -again specificilly a".fu."J- tirri"\Y!1fe.veq may be the lari, in other jurisdiction., ;l;established in this state that rvhere a aitcn "il;;l:;;;mitted, without interference, to construct an ir.iguil;gditch over the land of another, and the ditch i;;;;l; lse' a right of rn'ay is thereb5, acquired, and the ;;.;sitl, 1o, condemning, to obtai., po.r"..ion, is obviated.Iciting cases].,, The trial court manifestlS- ri-as right in cleciaring, uh_*. JlrS applicable law, that the ow-,ner of the GlenmarDitch had and has a right of *,"y ,..ors the lands of de_fendants. t4l With respect to the questions concerning dam_ages awarded, and not a'uvarcred, we r.u"u ."r"ir"irr, ";-amined the record and again find ourset.,". i., ,!r..h."twith the findings and conclusio.s oi ih. t.irt ""'".t.--irr"contention of defendants that it was unnecessar;, forplaintiff to construct. a nerv headgate since they ;il"rdyhad constructed one in the near.ii"i"ity which he mffi 504 Sar,rpn o. CorvrrvrrssroNERs [ 180 Colo. have used, is without merit, since it was they who de- stroyed the former arrangement by which defendants took water into his Glenmar ditch, and there is no show_ing that the headgate that they sought to substitute is either adequate or is on the right of way of said ditctr.With respect to damages for the loss of crops and pas_ ture, this raises a rather difficult question, but we-are convinced that the trial court had ample reason to awardthe damages to plaintiff that it did, ind we are not in-clined to criticize its j,dgment on the items it failed toaward, in the face of its findings that the evidence insupport thereof was uncertain and speculative. Thepresumption of regularity sufficienfl5r supports the trialcourt's arvards. The judgment of the trial court therefore in all re_ spects is affirmed. No. 17,395. Selrrn ET AL. z*. BoeRo op Couwrv Corvrrvrrsstomrns oF JEFFERSom Couwry. (277 P. l2<tl 232) Decided November 29, 19b4. Rehearing denied December 20, 1984. An action to obtain possession of real estate and for damages for its retention by defendants. Judgment forplaintiff. Pnn Cunravr. Judgment affirmed en banc without written opinion. Error to the District Court of Jefferson Countg, Hon. Osmer E. Smith, Judge.