COLORADO 06-08 Elkhorn Complaint...the Court determined that IMC holds legal title to an augmentation plan decreed by the Water Court, Water Division No. 1, in Case No. W-7389, and

DISTRICT COURT, PARK COUNTY, STATE OF COLORADO 300 Fourth St. (P.O. Box 190) Fairplay, Colorado 80440 719-836-2940

▲COURT USE ONLY▲ _____________________________

Case No. 16CV____

Plaintiff: ELKHORN RANCH HOMEOWNERS ASSOCIATION, INC. v. Defendants: INDIAN MOUNTAIN CORP., in its individual capacity and its representative capacity as trustee for Indian Mountain Subdivision property owners, BAR STAR LAND, LLC, and ALL UNKNOWN PERSONS WHO CLAIM ANY INTEREST IN THE SUBJECT MATTER OF THIS ACTION Attorneys for Plaintiff, Elkhorn Ranch Owners Association: Paul F. Holleman, #21888 John D. Buchanan, #45191 BUCHANAN SPERLING & HOLLEMAN PC 7703 Ralston Road Arvada, Colorado 80002 303-431-9141 [email protected] ; [email protected]

COMPLAINT FOR DECLARATORY RELIEF AND DECREE QUIETING TITLE

Plaintiff, Elkhorn Ranch Homeowners Association, Inc., by and through its attorneys, Buchanan Sperling & Holleman PC, upon information and belief, states as follows:

PARTIES

Plaintiff 1. Plaintiff, Elkhorn Ranch Homeowners Association, Inc. (“Elkhorn”), is a Colorado nonprofit corporation organized in compliance with the requirements of the Colorado Revised Nonprofit Corporation Act, C.R.S. § 7-122-102. See Exhibit A at 1.

DATE FILED: June 8, 2016 1:39 PM FILING ID: 162C569DE8DF2 CASE NUMBER: 2016CV30050

Elkhorn Ranch Owners Association v. Indian Mountain Corp. and Bar Star Land, LLC

Case No. 16CV____ Page 2

2. The primary purpose of Elkhorn is to govern the Elkhorn Ranches Subdivision, including administering the terms and conditions of the water augmentation plans approved by the Water Court, described below, which allow Elkhorn’s residents to pump water through wells located in the Subdivision. Id. at 2, 4. 3. Elkhorn’s principal office street and mailing address is 7208 S. Tucson Way, Suite 125, Centennial, Colorado 80112.

Defendants 4. Defendant Indian Mountain Corp. (“IMC”) is a Colorado corporation. 5. IMC’s principal office street address is 112 N. Rubey Dr., Golden, Colorado 80403. IMC’s principal office mailing address is P.O. Box 1187, Golden, Colorado 80402. 6. In the Findings, Conclusions, and Orders entered by this Court in Case No. 14CV30056, the Court determined that IMC holds legal title to an augmentation plan decreed by the Water Court, Water Division No. 1, in Case No. W-7389, and such title is held for the benefit of property owners in the nearby Indian Mountain Subdivision. Exhibit B at 8.

7. Defendant Bar Star Land, LLC (“Bar Star”) is a Colorado limited liability company. 8. Bar Star’s principal office street address is 112 N. Rubey Dr., Golden, Colorado 80403. Bar Star’s principal office mailing address is P.O. Box 1187, Golden, Colorado 80402. 9. Unknown persons may claim an interest in the property described below that is the subject of this action.

JURISDICTION AND VENUE

10. The real property that is the subject matter of this action and the subject matter of the claims set forth herein are easements and water rights that are located in Park County.

11. The claims set forth herein arose in Park County.

12. Defendants purport to own and/or control land in Park County and to conduct business in Park County. 13. The claims set forth herein concern the ownership of reservoir storage space, easements, and rights-of-way associated with certain water rights, and do not concern water matters. See generally Kobobel v. State, 249 P.3d 1127, 1132 (Colo. 2011); Upper Platte & Beaver Canal Co.



v. Riverview Commons General Improvement Dist., 250 P.3d 711 (Colo. App. 2010). The claims in this case thus fall within the general subject matter jurisdiction of the district courts and do not fall within the Water Court’s subject matter jurisdiction over water matters. Id.; see also C.R.S. §37-92-203(1).

14. This Court has subject matter jurisdiction over this action. See Colo. Const., Art. VI, §9; C.R.C.P. 57; C.R.S. §13-1-124; C.R.S. §13-51-101, et. seq.

15. The Court has personal jurisdiction over Defendants.

16. Venue is proper in this Court. See C.R.C.P. 98(a).

GENERAL STATEMENT OF THE NATURE OF THE CONTROVERSY

Introduction

17. The Elkhorn Ranches Subdivision consists of several hundred residential lots and homes located near the town of Como in Park County, Colorado. 18. Potable water is supplied to individual homes in the Elkhorn Ranches Subdivision through domestic and household use wells permitted by the State Engineer (“Elkhorn Wells”) to supply individual lots. There is no potable water system in the Elkhorn Ranches Subdivision to provide water to individual lots. 19. Elkhorn’s residents are only allowed to pump water from the Elkhorn Wells if Elkhorn follows the terms and conditions of Elkhorn’s two augmentation plans decreed by the water court. 20. The augmentation plans require that Elkhorn divert its surface water rights when they are in priority during the irrigation season, store the diverted water in Tarryall Ranch Reservoir, and release water from the reservoir into the stream system when required by the Division Engineer for Water Division No. 1 (“Division Engineer”). 21. Elkhorn owns 1) surface water rights that are decreed for augmentation uses and for storage of water in Tarryall Ranch Reservoir pursuant to such augmentation use; 2) an easement for storage of water in Tarryall Ranch Reservoir; and 3) the augmentation plans for augmenting the Elkhorn Wells, which expressly recognize Elkhorn’s right to use Tarryall Ranch Reservoir. 22. Elkhorn acquired one of its surface water rights and its easement for storage of water in Tarryall Ranch Reservoir from Park Development Co., the predecessor-in-interest of Defendants.



23. Elkhorn’s augmentation plans have been in operation since shortly after they were decreed in 1975-76. 24. In and around August 2013, Bar Star purported to purchase all shares of stock in IMC and land underlying and adjacent to Tarryall Ranch Reservoir. Thereafter, Defendants notified Elkhorn that they would not allow Elkhorn to access or use the reservoir unless Elkhorn paid Defendants approximately $30,000 per year. Exhibit C. 25. At the same time, Defendants also sent a demand for payment to the nearby Indian Mountain subdivision for $143,000 per year, and sued the Indian Mountain Metropolitan District over the dispute. This Court denied Defendants’ claims and determined them to be “unconscionable, and would result in IMC being unjustly enriched.” Exhibit B at 8.

26. Following Bar Star’s purchase of IMC, Elkhorn attempted negotiations with the principals of Bar Star and IMC in an effort to resolve the disputes described herein without litigation; however, such negotiations have not been successful. 27. Elkhorn has valid agreements that are binding on Defendants and grant Elkhorn an easement for storage of water in Tarryall Ranch Reservoir. IMC has no claim to ownership of Elkhorn’s water rights, easements, and augmentation plans and no right to exclude Elkhorn from using Tarryall Ranch Reservoir. 28. If Elkhorn is not allowed to divert and store water in and release water from Tarryall Ranch Reservoir as required by its augmentation plans and the Division Engineer, the Elkhorn Wells will be curtailed and Elkhorn’s residents will be deprived of their water supply.

Elkhorn’s Water Rights 29. Elkhorn owns two surface water rights – the Elkhorn Slater Ditch Right and the Elkhorn Guiraud Ditch Right, both described below – that are decreed for storage in Tarryall Ranch Reservoir and for use as an augmentation water supply for the Elkhorn Wells. 30. As discussed below, Elkhorn has an easement to store water in one-third of the useable capacity of Tarryall Ranch Reservoir, with a minimum storage capacity allotted to Elkhorn of 41 acre feet.

Slater Ditch Water Right

31. A water right was decreed to the Slater Ditch in the decree entered by the Park County District Court in Civil Action No. 341 on October 18, 1889, for 27 cubic feet per second (“cfs”) from Tarryall Creek with an appropriation date of May 20, 1880.



32. In 1970, Park Development Co. purchased the 27 cfs water right decreed to the Slater Ditch along with the land underlying and surrounding Tarryall Ranch Reservoir and two decreed water rights in Tarryall Ranch Reservoir. Exhibit D. 33. Park Development Co. was the original developer for the nearby Indian Mountain subdivision and the predecessor-in-interest of Defendants. Exhibit B at 3, 7-8. 34. In February 1975, the Elkhorn Ranch Co. filed an application in the Water Court requesting approval to change a 4 cfs portion of the Slater Ditch water right (“Elkhorn Slater Ditch Right”) to augment depletions from wells supplying water to the Elkhorn Ranches Subdivision, Filing Nos. 2 and 3, and for storage of water in Tarryall Ranch Reservoir No. 2. The application was assigned Case No. W-7903. Exhibit E at 1. 35. In April 1975, Park Development Co. sold the Elkhorn Slater Ditch Right to the Elkhorn Ranch Co. Exhibit F. The agreement for sale of the water right (“Slater Agreement”) also granted an easement for storage of 41 acre feet of water in Tarryall Ranch Reservoir. Id. at ¶ 7. The Slater Agreement is expressly binding on the parties and their “administrators, executors, successors and assigns.” Id. at ¶ 9. 36. The Slater Agreement states that the Elkhorn Slater Ditch Right, which at the time was decreed for irrigation use, was purchased so that it could be changed for use in an augmentation plan for a residential subdivision. Exhibit F at 1. 37. In June 1975, Robert Dulin conveyed the Elkhorn Slater Ditch Right, and all rights associated therewith and appurtenant thereto, to the Elkhorn Ranch Company by warranty deed recorded in the books and records of the Park County Clerk and Recorder on December 15, 1975, Reception No. 218508, Book 248, Page 962. Exhibit G. 38. In July 1975, the water court decreed an augmentation plan in Case No. W-7903 (“W-7903 Decree”) that approved storage of the Elkhorn Slater Ditch Right in Tarryall Ranch Reservoir No. 2 (as discussed below, the current Tarryall Ranch Reservoir was originally two smaller reservoirs, Tarryall Ranch Reservoirs Nos. 1 and 2) of an average of 13.7 acre feet of water per year, with an accumulative 3-year total of not more than 41.1 acre feet of water, plus an additional amount to offset evaporation losses. Exhibit E at 8. 39. The W-7903 Decree included a finding of fact that the Elkhorn Ranch Company “has a contractual agreement to use and, if necessary, enlarge the Tarryall Ranch Reservoir No. 2.” Exhibit E at 2.



40. The W-7903 Decree states that Elkhorn has the right and duty to store water in Tarryall Ranch Reservoir and to operate and enforce the augmentation plan. Id. at 5-6. 41. On September 7, 1976, Elkhorn Ranch Co. conveyed the Elkhorn Slater Ditch Water Right, and all rights associated therewith and appurtenant thereto, to Elkhorn by warranty deed recorded in the books and records of the Park County Clerk and Recorder on September 9, 1976, Reception No. 225326, Book 255, Page 870. Exhibit H. 42. The rights associated with and appurtenant to the Elkhorn Slater Ditch Right included the augmentation plan approved in the W-7903 Decree and the easement for storing water in Tarryall Ranch Reservoir conveyed in the Slater Agreement.

Guiraud Ditch Water Right 43. A water right was decreed to the Guiraud Ditch, a.k.a. the Guiraud 3T Ditch, in the decree entered by the Park County District Court in Civil Action No. 341 on October 18, 1889 for 48.67 cfs. 44. In December 1975, the Elkhorn Ranch Co. and J.T. McDowell & Sons filed an application to change a 0.75 cfs portion of the Guiraud Ditch water right (“Elkhorn Guiraud Ditch Right”) to allow diversion of the water right through the Slater Ditch, storage in Tarryall Ranch Reservoir, and augmentation of Elkhorn Wells in Filing Nos. 4 and 5 of the Elkhorn Ranches Subdivision. Exhibit I at 1. The application was assigned Case No. W-8107. 45. In February 1976, after execution of the Slater Agreement, Elkhorn Ranch Co. and Park Development Co. executed a second agreement regarding storage of Elkhorn’s water rights in Tarryall Ranch Reservoir (“Tarryall Agreement”). Exhibit J. 46. The Tarryall Agreement increased the storage space in Tarryall Ranch Reservoir previously granted to Elkhorn Ranch Co. from 41 acre feet of water under the Slater Agreement to one-third of the useable storage capacity of Tarryall Ranch Reservoir if Elkhorn Ranch Co. paid for one-third of the construction costs for modifying the reservoir. Id. 47. The increased storage allotted to Elkhorn Ranch Co. under the Tarryall Agreement was for the purpose of allowing storage of approximately 10 acre feet of water under the Elkhorn Guiraud Ditch Right and the augmentation plan applied for in Case No. W-8107. 48. Elkhorn Ranch Co. paid one-third of all costs that were billed or provided to Elkhorn for construction of Tarryall Ranch Reservoir. Exhibit K.



49. In July 1976, the water court decreed an augmentation plan in Case No. W-8107 (“W-8107 Decree”) that approved storage of the Elkhorn Guiraud Ditch Right in Tarryall Ranch Reservoir No. 1 for up to 10.08 acre feet of water. Exhibit I at 9. 50. The W-8107 Decree states that Elkhorn Ranch Co. “has a right to the use of storage in Tarryall Ranch Reservoir No. 1 by virtue of an agreement between applicant and Park Development Company,” and included the Tarryall Agreement as exhibit F to the decree. Id.; Exhibit J.

51. The W-8107 Decree states that Elkhorn has the right and duty to store water in Tarryall Ranch Reservoir and to operate and enforce the augmentation plan. Exhibit I at 6.

52. In August 1976, J.T. McDowell & Sons conveyed the Elkhorn Guiraud Ditch Right, and all rights associated therewith and appurtenant thereto, to Elkhorn Ranch Co. by warranty deed recorded in the books and records of the Park County Clerk and Recorder on September 7, 1976, Reception No. 225303, Book 255, Page 836. Exhibit L. 53. In September 1976, Elkhorn Ranch Co. conveyed the Elkhorn Guiraud Ditch Water Right, and all rights associated therewith and appurtenant thereto, to Elkhorn by warranty deed recorded in the books and records of the Park County Clerk and Recorder on September 9, 1976, Reception No. 225325, Book 255, Page 869. Exhibit M. 54. The rights associated with and appurtenant to the Elkhorn Guiraud Ditch Right included the augmentation plan approved in the W-8107 Decree and the easement for storing water in Tarryall Ranch Reservoir conveyed in the Slater and Tarryall Agreements.

Tarryall Ranch Reservoir

55. Tarryall Ranch Reservoir originally consisted of two separate reservoirs. 56. Tarryall Ranch Reservoir No. 1 was constructed during or before 1923, with the dam and storage pool approximately located in the NW1/4 of Section 12, Township 9 South, Range 76 West of the 6th P.M. in Park County, Colorado. 57. Tarryall Ranch Reservoir No. 2 was constructed during the year 1938, adjacent to Tarryall Ranch Reservoir No. 1, with the dam also approximately located in the NW1/4 of Section 12, Township 9 South, Range 76 West of the 6th P.M., and the storage pool located in said quarter section and in the NE1/4 of Section 11, Township 9 South, Range 76 West of the 6th P.M., all in Park County, Colorado.



58. The dam for Tarryall Ranch Reservoir No. 1 was enlarged in 1976, with the dam remaining approximately located in the NW1/4 of Section 12, Township 9 South, Range 76 West of the 6th P.M.

59. Following the enlargement of the dam for Tarryall Ranch Reservoir No. 1, the location of the dam for Tarryall Ranch Reservoir No. 2 was inundated and the storage pools for Tarryall Ranch Reservoirs Nos. 1 and 2 are now the same, single storage pool, which is located in the NW1/4 of Section 12, the NE1/4 of Section 11, Township 9 South, Range 76 West of the 6th P.M., the SE1/4 of Section 2, Township 9 South, Range 76 West of the 6th P.M., and the SW1/4 of Section 1, Township 9 South, Range 76 West of the 6th P.M.

60. Following the enlargement of the dam for Tarryall Ranch Reservoir No. 1, Tarryall Ranch Reservoirs Nos. 1 and 2 have been operated as a single reservoir (collectively referred to herein as “Tarryall Ranch Reservoir”). 61. At the time of enlargement of Tarryall Ranch Reservoir, the State Engineer determined the total storage capacity of the reservoir to be 160 acre feet. Exhibit N. 62. Water is delivered into Tarryall Ranch Reservoir from the Slater Ditch. The point of diversion for the Slater Ditch is located on Tarryall Creek in the SE1/4 of Section 20, Township 8 South, Range 76 West of the 6th P.M. in Park County, Colorado. The Slater Ditch then runs southeasterly into a diversion pond located in the N1/2 of Section 28, Township 8 South, Range 76 West of the 6th P.M. The Slater Ditch then proceeds in a generally southeasterly direction towards Tarryall Ranch Reservoir. 63. Portions of the Slater Ditch and Tarryall Ranch Reservoir are located on land purported to be owned and/or controlled by Defendants. 64. Tarryall Ranch Reservoir is accessed through a road that begins at Park County Road 15, a.k.a. Elkhorn Road, in Section 1, Township 9 South, Range 76 West of the 6th P.M. and ends at the Tarryall Ranch Reservoir in Section 12, Township 9 South, Range 76 West of the 6th P.M. (“Tarryall Access Road”).

Defendants’ Denial of Elkhorn’s Right to Store Water In

and Access Tarryall Ranch Reservoir 65. Elkhorn owns the Elkhorn Slater Ditch Right and Elkhorn Guiraud Ditch Right (collectively, the “Elkhorn Water Rights”), the augmentation plans approved in the W-7903 Decree and in the W-8107 Decree (collectively, the “Elkhorn Augmentation Plans”), an exclusive easement to store water in one-third of the useable capacity in Tarryall Ranch



Reservoir (“Elkhorn Storage Easement”), and all rights and interests associated with such water rights, augmentation plans, and easement. 66. The Slater Agreement originally allotted 41 acre feet of storage space in Tarryall Ranch Reservoir under the Elkhorn Storage Easement. The Tarryall Agreement increased such storage space to one-third of the enlarged capacity upon modification of the reservoir. Accordingly, the Elkhorn Storage Easement consists of one-third of the useable capacity of Tarryall Ranch Reservoir, with a minimum storage capacity allotted to Elkhorn of 41 acre feet. 67. Under Colorado law, Elkhorn’s ownership of its water rights and the Elkhorn Storage Easement entitle Elkhorn to all rights reasonably necessary for the use of the water rights and easement, such as the right to use, access and maintain ditches, reservoirs, and other structures related to the diversion and use of the water rights. See, e.g., Bijou Irr. Dist. v. Empire Club, 804 P.2d 175, 182-83 (Colo. 1991); Leonard v. Buerger, 276 P.2d 986, 989, 130 Colo. 497, 502-03 (Colo. 1954). 68. The Elkhorn Augmentation Plans have been in operation and have allowed pumping of the Elkhorn Wells to supply water to the residences in the Elkhorn Ranches Subdivision, Filing Nos. 2, 3, 4 and 5, since entry of the W-8107 Decree and W-7903 Decree in 1975-76. 69. Any interest that Defendants may claim in the Tarryall Ranch Reservoir and the land underlying and adjacent to the reservoir was obtained by conveyance from Park Development Co. to IMC by deed dated March 8, 1976 and recorded in the books and records of the Park County Clerk and Recorder on March 22, 1976, Reception No. 220214, Book 251, Page 15. Exhibit O; Exhibit B at 3. 70. The conveyance from Park Development Co. to IMC on March 8, 1976 occurred after Park Development Co. had conveyed the Elkhorn Slater Ditch Right and the Elkhorn Storage Easement to Elkhorn’s predecessors-in-interest in the Slater and Tarryall Agreements, dated April 9, 1975 and February 25, 1976, respectively. 71. In August 2013, Bar Star purchased all shares of stock in IMC. Exhibit B at 3. 72. Defendants had actual and constructive knowledge of the Elkhorn Augmentation Plans, the Elkhorn Storage Easement, and Elkhorn’s use of the Elkhorn Water Rights and Tarryall Ranch Reservoir when Defendants acquired their purported interest in any land or water storage rights associated with Tarryall Ranch Reservoir. 73. Soon after Bar Star purchased IMC in August 2013, Defendants constructed a gate across the Tarryall Access Road, locked the gate, and have denied Elkhorn access to Tarryall Ranch Reservoir.



74. Soon after Bar Star purchased IMC, Defendants sent invoices to Elkhorn and the Indian Mountain Metropolitan District requesting payment of approximately $30,000 and $286,000, respectively, for “Water Augmentation Maintenance Plan[s]” for 2012 and 2013. See Exhibit B at 6; Exhibit C. 75. Defendants do not own any interest in the Elkhorn Storage Easement, the Elkhorn Water Rights, or the Elkhorn Augmentation Plans. Defendants have no authority or right to charge Elkhorn for operation, maintenance, repair, or any other activities related to the Elkhorn Augmentation Plans, Elkhorn Storage Easement, or Elkhorn Water Rights. 76. Defendants have no authority to deny Elkhorn access to Tarryall Ranch Reservoir. 77. In Case No. 14CV30056, IMC filed a lawsuit against Indian Mountain Metropolitan District claiming that it owned the water rights associated with the Indian Mountain subdivision’s augmentation plan and thus should be entitled to compensation from the Indian Mountain Metropolitan District. Exhibit B at 6. 78. This Court denied IMC’s claims in Case No. 14CV30056 and determined that equitable title to the water rights belonged to the property owners in the Indian Mountain subdivision, and that “IMC would be unjustly enriched by charging ongoing fees forty (40) years later for use of the augmentation water.” Id. at 8.

79. Since Bar Star purchased IMC, Defendants have denied Elkhorn’s right to divert water into, store water in, and access Tarryall Ranch Reservoir unless Elkhorn pays ongoing annual fees. Such denial of access constitutes a continuing interference with Elkhorn’s use and enjoyment of Elkhorn’s Storage Easement, Water Rights, and Augmentation Plans. 80. After the Elkhorn Augmentation Plans were decreed and before Bar Star acquired IMC, a period of more than 35 years, IMC never denied that Elkhorn had the right to store water in and access Tarryall Ranch Reservoir or to operate the Elkhorn Augmentation Plans. 81. Elkhorn paid consideration for the Elkhorn Storage Easement pursuant to the Slater and Tarryall Agreements. 82. In order for the Elkhorn Wells to pump water for their domestic and household uses under the Elkhorn Augmentation Plans, Elkhorn must divert and store water in Tarryall Ranch Reservoir and release water from storage in Tarryall Ranch Reservoir in the amounts and at times deemed necessary by the Division Engineer.



83. When the Division Engineer requires Elkhorn to release water from Tarryall Ranch Reservoir, Elkhorn must release water or the Division Engineer shall curtail pumping of the Elkhorn Wells. 84. If the Elkhorn Wells are curtailed, the homes that are supplied water by the Elkhorn Wells will have no water supply. 85. A genuine controversy exists between Elkhorn and the Defendants regarding Elkhorn’s right to access, maintain, and use the Tarryall Ranch Reservoir and the Elkhorn Water Rights, Elkhorn Augmentation Plans, and Elkhorn Storage Easement on land owned and/or controlled by the Defendants.

REQUEST FOR DECLARATION AND DETERMINATION OF RIGHTS

PURSUANT TO C.R.S. §§13-51-101, et. seq. AND C.R.C.P. 57 86. Elkhorn incorporates the foregoing allegations as if set forth verbatim. 87. The Slater Agreement and Tarryall Agreement are valid, binding agreements that entitle Elkhorn Ranch to an exclusive easement to store water in one-third of the useable capacity in Tarryall Ranch Reservoir, with a minimum storage capacity allotted to Elkhorn of 41 acre feet, and to take all actions reasonably necessary for the enjoyment of such easement including, but not limited to, ingress and egress along the Tarryall Access Road. 88. If for any reason the Slater and Tarryall Agreements are found unenforceable, Elkhorn owns an easement under operation of Colorado law by grant, license, prescription, and/or estoppel, to divert water into Tarryall Ranch Reservoir and to store water in one-third of the useable capacity in Tarryall Ranch Reservoir, with a minimum storage capacity allotted to Elkhorn of 41 acre feet, and all rights and interests reasonably necessary for the enjoyment of such easement including, but not limited to, ingress and egress along the Tarryall Access Road. 89. Defendants have denied Elkhorn access to Tarryall Ranch Reservoir and have denied Elkhorn’s right to store water in Tarryall Ranch Reservoir. WHEREFORE, Elkhorn requests the Court to enter a decree pursuant to C.R.S. §§13-51-101 et seq. and C.R.C.P. 57 as follows:

a. Finding and determining that Elkhorn owns an exclusive easement to store water in one-third of the useable capacity in Tarryall Ranch Reservoir, with a minimum storage capacity allotted to Elkhorn of 41 acre feet;



b. Finding and determining that the scope of the easement includes all rights and interests reasonably necessary for the use, operation and maintenance of the Elkhorn Water Rights, the Elkhorn Storage Easement and the Elkhorn Augmentation Plans, including, but not limited to, ingress and egress along the Tarryall Access Road; c. Prohibiting Defendants from interfering in any way with Elkhorn’s use and enjoyment of the Elkhorn Water Rights, the Elkhorn Storage Easement and the Elkhorn Augmentation Plans, including, but not limited to, ingress and egress along the Tarryall Access Road; d. Awarding Elkhorn such compensatory damages, punitive damages, and attorney fees and costs as permitted by law; and e. Granting such further relief the Court may deem proper.

REQUEST FOR DECREE QUIETING TITLE PURSUANT TO C.R.C.P. 105

90. Elkhorn incorporates the foregoing allegations as if set forth verbatim. 91. Elkhorn owns exclusive title to the Elkhorn Water Rights, the Elkhorn Storage Easement, the Elkhorn Augmentation Plans, and all rights and interests associated therewith (collectively, the “Property”). 92. Defendants claim some right, title or interest in and to some or all of the Property, which claim(s) are adverse to Elkhorn, and any such claims by Defendants are without foundation or right. 93. WHEREFORE, Elkhorn requests the Court to enter a decree pursuant to C.R.C.P. 105 including a complete adjudication of the rights of all parties to this action as follows:

a. Finding and determining that Defendants, and any person claiming any interest under or through Defendants, have no interest, estate or claim of any kind whatsoever in the Property;

b. Forever barring and enjoining the Defendants, and any person claiming any interest under or through Defendants, from asserting any claim or title to the Property; c. Quieting the title of Elkhorn in and to the Property and adjudging that Elkhorn is the owner in fee simple and entitled to the possession, use and benefit of the Property;

Documents

COLORADO 06-08 Elkhorn Complaint...the Court determined that IMC holds legal title to an augmentation plan decreed by the Water Court, Water Division No. 1, in Case No. W-7389, and