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EMPIRE LODGE HOMEOWNERS' ASS'N v. MOYER

No. 00SA211.

39 P.3d 1139 (2001)

EMPIRE LODGE HOMEOWNERS' ASSOCIATION, a Colorado non-profit corporation, Plaintiff-Appellant, v. Anne MOYER and Russell Moyer, individually and as Co Personal Representatives of the Estate of Maxine Reddy, deceased, and as Co-Trustees of the Maxine Reddy Trust, Defendant-Appellee, and Steven J. Witte, Division Engineer, Water Division 2, Appellee pursuant to C.A.R. 1(e).

Supreme Court of Colorado, En Banc.

As Modified on Denial of Rehearing February 11, 2002.

Attorney(s) appearing for the Case

Felt, Monson & Culichia, L.L.C., James G. Felt, Steven T. Monson, James W. Culichia, Bradford R. Benning, Colorado Springs, CO, Attorneys for Plaintiff-Appellant.

The Law Office of Thomas R. Raynes, LLC, Thomas R. Raynes, Gunnison, CO, Attorney for Defendants-Appellees.

Ken Salazar, Attorney General, Steven O. Sims, First Assistant Attorney General, Shana Smilovits, Assistant Attorney General, Denver, CO, Attorneys for State and Division Engineers.

Moses, Wittemyer, Harrison & Woodruff, P.C., Veronica A. Sperling, Richard J. Mehren, Boulder, CO, Attorneys for Amicus Curiae City of Boulder.

Timothy R. Buchanan, P.C., Timothy R. Buchanan, Peter D. Mohr, Arvada, CO, Attorneys for Amicus Curiae Fort Morgan Reservoir and Irrigation Company and the Jackson Lake Reservoir and Irrigation Company.

Hill & Robbins, P.C., David W. Robbins, Dennis M. Montgomery, Denver, CO, Attorneys for Amicus Curiae Groundwater Appropriators of the South Platte, Inc.

Justice HOBBS delivered the Opinion of the Court.

This appeal is from a judgment of the District Court for Water Division No. 2 (Water Court) in favor of the operators of a decreed irrigation water right, Anne and Russell Moyer (Moyers), against an out-of-priority diverter, Empire Lodge Homeowners' Association (Empire Lodge), which has been filling two ponds for fishing and recreation at a subdivision.1 The Moyers placed frequent calls...

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