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MONAGHAN FARMS v. CITY & COUNTY OF DENVER

No. 89SA51.

807 P.2d 9 (1991)

Concerning the Application for Water Rights of Monaghan Farms, Inc. MONAGHAN FARMS, INC., Applicant-Appellee, v. The CITY AND COUNTY OF DENVER, Acting By and Through its BOARD OF WATER COMMISSIONERS, Objector-Appellant, and State Engineer and Division Engineer for Water Division No. 1; L.C. Fulenwider, Inc.; Van Schaack Holdings, Ltd.; H.C. Van Schaack, III; L.C. Fulenwider, Jr.; and L.C. Fulenwider, III, Appellees.

Supreme Court of Colorado, En Banc.

As Modified on Denial of Rehearing March 18, 1991.

Attorney(s) appearing for the Case

Baker & Hostetler, Kenneth J. Burke, Denver, for applicant-appellee.

Wayne D. Williams, Michael L. Walker, Henry C. Teigen, Sara Duncan, Denver, for objector-appellant.

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wendy C. Weiss, First Asst. Atty. Gen., Denver, for appellees State Engineer and Div. Engineer for Water Division No. 1.

Moses, Wittemyer, Harrison & Woodruff, P.C., Robert E.L. Beebe, Boulder, for appellees L.C. Fulenwider, Inc., Van Schaack Holdings, Ltd., H.C. Van Schaack, III, L.C. Fulenwider, Jr., and L.C. Fulenwider, III.

Justice LOHR delivered the Opinion of the Court.

The appellant, the City and County of Denver, acting by and through its Board of Water Commissioners (Denver), appeals from an amended decree of the District Court, Water Division No. 1 (water court), that granted the application of appellee Monaghan Farms, Inc. (Monaghan Farms) for determination of rights to "not nontributary"1 ground water from the portion of

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