Baker v. Safadi-Chamberlain

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 3, 2025

2025COA63

No. 24CA0848, Baker v. Safadi-Chamberlain — Water and
Irrigation — Rights-of-Way and Ditches — Extent of Right-of-
Way

In this dispute over an irrigation ditch, a division of the court

of appeals considers whether section 37-86-103, C.R.S. 2024, gives

the beneficiary of a ditch right-of-way the unfettered right to pipe

the ditch. Relying on the plain language of the statute, the division

concludes that section 37-86-103 provides a right to pipe a ditch

only when doing so would improve the ditch’s efficiency.

Accordingly, the division affirms the district court’s judgment, albeit

on a slightly different ground than that relied on by the district

court.
COLORADO COURT OF APPEALS 2025COA63

Court of Appeals No. 24CA0848
Larimer County District Court No. 23CV30216
Honorable Stephen J. Jouard, Judge

Dale Baker,

Plaintiff-Appellant,

v.

Farida Safadi-Chamberlain,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE YUN
Tow and Sullivan, JJ., concur

Announced July 3, 2025

Fischer, Brown, Bartlett, Larsen & Irby, P.C., Todd W. Rogers, Whitney Phillips
Coulter, Fort Collins, Colorado, for Plaintiff-Appellant

Fischer Law Group, P.C., Erik G. Fischer, Ashleigh Bravo, Fort Collins,
Colorado, for Defendant-Appellee
¶1 In Colorado, a person who owns a water right is “entitled to a

right-of-way through the lands which lie between the point of

diversion and point of use or proposed use for the purpose of

transporting water for beneficial use in accordance with said water

right.” § 37-86-102, C.R.S. 2024; see Colo. Const. art. XVI, § 7.

¶2 Section 37-86-103, C.R.S. 2024, sets forth the extent of this

right-of-way. Before 2019, this statute — largely unchanged from a

statute enacted in 1861 — provided that “[s]uch right-of-way shall

extend only to a ditch, dike, cutting, pipeline, or other structure

sufficient for the purpose required.” § 37-86-103, C.R.S. 2018; see

An Act to Protect and Regulate the Irrigation of Lands, sec. 3, 1861

Colo. Terr. Sess. Laws 67. But in 2019 the General Assembly

added new language to the statute, including that “a ditch

right-of-way includes the right to . . . replace the ditch and

appurtenant structures, to improve the efficiency of the ditch,

including by lining or piping the ditch, and to enter onto the

burdened property for such purposes.” § 37-86-103, C.R.S. 2024

(emphasis added); see Ch. 54, sec. 1, § 37-86-103, 2019 Colo. Sess.

Laws 190.

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¶3 This case involves the interpretation of the 2019 amendment.

Plaintiff, Dale Baker, filed a declaratory judgment action seeking to

pipe a ditch running across property owned by defendant, Farida

Safadi-Chamberlain, under the amended statute. After a bench

trial, the district court entered judgment in favor of

Safadi-Chamberlain, interpreting the amendment to require that

“piping of the ditch is reasonable and necessary related to the

operation of the ditch.” Baker appeals, contending that the court

misinterpreted the statute by imposing “unnecessary evidentiary

findings.”

¶4 As a matter of first impression, we conclude that the

amendment to section 37-86-103 grants the right to pipe a ditch

only when doing so would improve the ditch’s efficiency. Because

the district court’s factual findings also support the judgment under

this interpretation of the statute, we affirm, albeit on a slightly

different ground than that relied on by the district court.

I. Background

¶5 Baker, Safadi-Chamberlain, and several of their neighbors own

water rights through the North Poudre Irrigation Company. The

water is delivered by a private, unincorporated, lateral, open ditch

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that runs across Safadi-Chamberlain’s property and eventually,

after crossing three other neighbors’ properties, terminates

downstream on Baker’s property.

¶6 In 2019, the water right owners decided to pipe the portion of

the ditch that runs from North Poudre Irrigation Company’s canal

to just before Safadi-Chamberlain’s property. That portion of the

ditch is shown in a dashed blue line below, while the portion of the

ditch that remained unpiped is shown in a solid red line.

The Ditch After the 2019 Piping Project

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Safadi-Chamberlain voted in favor of and contributed financially to

the 2019 piping project. Before piping the ditch, it took over five

hours for water released from the irrigation company’s canal to

reach Safadi-Chamberlain’s property; after piping the ditch, it takes

around thirty minutes.

¶7 In 2022, Baker and at least one neighbor1 decided that the

remainder of the ditch should be piped as well. But

Safadi-Chamberlain opposed the idea and refused to allow them to

pipe the portion of the ditch on her property. Baker thus filed suit

in district court, seeking a declaration that he was statutorily

entitled to pipe the segment of the ditch on Safadi-Chamberlain’s

property under section 37-86-103. And, though he did not include

it as a claim for relief in his complaint, Baker argued at trial and

continues to assert on appeal that Safadi-Chamberlain should be

forced to contribute one-fifth of the total cost of piping the ditch.

¶8 The district court held a one-day bench trial. Baker testified

that he wanted to pipe the ditch to “maintain the efficiency” from

1 One neighbor testified at trial in support of piping the remainder

of the ditch. But the positions of the other neighbors are not in the
record, as they did not participate in the lawsuit.

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the 2019 piping project. His expert witness testified that having the

entire ditch piped from the canal to Baker’s property would

generate “five to seven [pounds per square inch]” of pressure,

“which is sufficient enough to drive the water . . . from the pipe up

above ground level for flood irrigation,” thereby avoiding the need to

“operate a pump and set check dams or siphon tubes or various

other means that you use to get[] water out of a pipe.” But leaving

the segment of the ditch on Safadi-Chamberlain’s property unpiped

would “los[e] whatever pressure you might have built in that

pipeline” up to that point. The expert also explained that piping a

ditch generally “improve[s] efficiency for water loss, whether it’s

seepage or evaporation from an open ditch,” and “reduce[s] the

waste that comes out of the end of an open canal.” But he

conceded that he “did not do a seepage and loss study” on the

ditch.

¶9 On the other hand, Safadi-Chamberlain’s expert witness

testified that he tested the ditch and found a “high percent[age] of

clay soil . . . along the ditch from [Safadi-Chamberlain’s] property to

the north all the way to the south.” He explained that this made

any water loss to seepage “negligible.” He concluded that “the

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amount of water that will be delivered by the pipe . . . probably will

be the same or less” than the amount delivered from the open ditch

and that “[t]here will be no pressure.” Safadi-Chamberlain testified

that the costs associated with piping the ditch would far exceed any

potential benefits; that the valves necessary to access the piped

water would harm the aesthetics of her property; and that piping

the ditch would disrupt her ability to use flood irrigation, which she

believed was the most effective and least labor-intensive method of

irrigating her property.

¶ 10 The district court interpreted section 37-86-103 as requiring

“the court to determine whether the right-of-way is sufficient for the

purposes required of the ditch” and whether “piping of the ditch is

reasonable and necessary related to the operation of the ditch.”

Based on this interpretation, the court found that “the open lateral

ditch is sufficient to meet the needs for delivery of the water right[s]

to the parties’ respective properties” and that “piping of the

remaining portion of the lateral ditch is not reasonable and

necessary and would not make any appreciable improvement in the

amount or quality of the water actually delivered either to the Baker

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or Safadi-Chamberlain properties.” Accordingly, the court entered

judgment in favor of Safadi-Chamberlain.

II. Analysis

¶ 11 Baker explicitly disavows challenging the district court’s

factual findings. Instead, he contends that the court misinterpreted

section 37-86-103 and imposed “unnecessary evidentiary findings.”

From this, we understand his argument to be that the amendment

to section 37-86-103 granted him an unfettered right to pipe the

ditch. We disagree.

A. Standard of Review and Governing Statute

¶ 12 “We review a judgment following a bench trial as a mixed

question of fact and law.” Premier Members Fed. Credit Union v.

Block, 2013 COA 128, ¶ 27. “It is the province of the trial court to

assess the reliability of the evidence and credibility of witnesses,”

Lawry v. Palm, 192 P.3d 550, 560 (Colo. App. 2008), and we will

disturb the court’s factual findings “only if they are clearly

erroneous and not supported by the record,” id. at 558. But “we

review the court’s conclusions of law de novo.” Premier Members,

¶ 27.

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¶ 13 We also review a district court’s interpretation of a statute de

novo. Bodelson v. City of Littleton, 36 P.3d 214, 216 (Colo. App.

2001). In interpreting a statute, our primary purpose is to give

effect to the General Assembly’s intent. People v. Diaz, 2015 CO 28,

¶ 12. “We construe the statute as a whole, in an effort to give

consistent, harmonious, and sensible effect to all its parts, and we

read the words and phrases in context and construe them

according to the rules of grammar and common usage.” Id. We

avoid interpretations that would render any words or phrases

superfluous. Dep’t of Revenue v. Agilent Techs., Inc., 2019 CO 41,

¶ 16. If the statute’s language is clear, we must apply it as written

and need look no further. Oakwood Holdings, LLC v. Mortg. Invs.

Enters. LLC, 2018 CO 12, ¶ 12.

¶ 14 Section 37-86-103, in its entirety, provides as follows:

[A water] right-of-way shall extend only to a
ditch, dike, cutting, pipeline, or other
structure sufficient for the purpose required.
Unless inconsistent with the terms upon which
the right-of-way was created, and not to be
construed as a limit on any other rights in a
ditch or ditch right-of-way that have been
created or arisen by law, a ditch right-of-way
includes the right to construct, operate, clean,
maintain, repair, and replace the ditch and
appurtenant structures, to improve the

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efficiency of the ditch, including by lining or
piping the ditch, and to enter onto the
burdened property for such purposes, with
access to the ditch and ditch banks, as the
exigencies then existing may require, for all
reasonable and necessary purposes related to
the ditch.

The 2019 amendment added the second sentence to the statute.

See 2019 Colo. Sess. Laws at 190.

B. Section 37-86-103 Grants the Right to Pipe a Ditch Only if
Doing So Improves Its Efficiency

¶ 15 Baker interprets section 37-86-103 as granting the

beneficiaries of a ditch right-of-way an unfettered right to pipe the

ditch. To reach this conclusion, he interprets the qualifying clause

“for all reasonable and necessary purposes related to the ditch” as

limiting only the right of entry onto the burdened property. He thus

reads the statute as conferring the following three separate rights:

(1) “to construct, operate, clean, maintain, repair, and

replace the ditch and appurtenant structures”;

(2) “to improve the efficiency of the ditch, including by lining

or piping the ditch”; and

(3) “to enter onto the burdened property for such purposes,

with access to the ditch and ditch banks, as the

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exigencies then existing may require, for all reasonable

and necessary purposes related to the ditch.”

§ 37-86-103 (emphasis added).

¶ 16 However, the district court interpreted section 37-86-103 as

requiring determinations that “the right-of-way is sufficient for the

purposes required of the ditch” and “that the piping of the ditch is

reasonable and necessary related to the operation of the ditch.” We

rely on a different part of the statute — specifically, the clause

describing the second right listed above — to conclude that the

statute does not grant an unfettered right to pipe a ditch.

Accordingly, we affirm on a different ground. See Taylor v. Taylor,

2016 COA 100, ¶ 31 (appellate court may affirm on any basis

supported by the record).

¶ 17 We begin by examining the second clause — the right “to

improve the efficiency of the ditch, including by lining or piping the

ditch” — as it is the only clause that references the right to pipe a

ditch. But this clause is limited by its own terms to actions that

improve the efficiency of the ditch. Thus, it does not grant an

unfettered right to pipe a ditch.

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¶ 18 The first clause — the right “to construct, operate, clean,

maintain, repair, and replace the ditch and appurtenant

structures” — does not reference the right to pipe the ditch.

However, to the extent that Baker argues the phrase “to . . . replace

the ditch and appurtenant structures” includes an unfettered right

to pipe the ditch, we conclude that such an interpretation of the

statute is unreasonable.

¶ 19 “The commonly understood meaning of ‘replace’ is to supplant

something with an equivalent or substitute.” Mid-Century Ins.

Co. v. Robles, 271 P.3d 592, 596 (Colo. App. 2011) (citing Allstate

Ins. Co. v. Parfrey, 830 P.2d 905, 912 (Colo. 1992)); see also

Merriam-Webster Dictionary, https://perma.cc/GP2V-MQAZ

(defining “replace” as “to take the place of especially as a substitute

or successor” and “to put something new in the place of”). Read

alone, “replacing” a ditch could be construed to include piping it.

But we do not read terms in isolation; instead, we “construe the

statute as a whole, in an effort to give consistent, harmonious, and

sensible effect to all its parts, and we read the words and phrases in

context.” Diaz, ¶ 12; § 2-4-101, C.R.S. 2024. For two reasons, we

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conclude that the General Assembly did not intend to use “replace”

so broadly.

¶ 20 First, construing the word “replace” to allow piping the ditch

would give the word a meaning unrelated to that of the surrounding

terms. See Coloradans for a Better Future v. Campaign Integrity

Watchdog, 2018 CO 6, ¶ 37 (“It is a familiar principle of statutory

construction that words grouped in a list should be given related

meaning.” (quoting Third Nat’l Bank in Nashville v. Impac Ltd., Inc.,

432 U.S. 312, 322 & n.16 (1977))). “Replace” is immediately

preceded by the terms “clean,” “maintain,” and “repair.” Each of

these words connotes an effort to, as much as possible, keep the

ditch in, or restore the ditch to, its original condition; none of them

suggest fundamentally altering the ditch itself. See

Merriam-Webster Dictionary, https://perma.cc/YTP6-Z4NY

(defining “clean” as “to rid of dirt, impurities, or extraneous

matter”); Merriam-Webster Dictionary, https://perma.cc/529N-

NMY6 (defining “maintain” as “to keep in an existing state (as of

repair, efficiency, or validity)” or “preserve from failure or decline”)

(emphases added); Merriam-Webster Dictionary,

https://perma.cc/8TKT-UBEG (defining “repair” as “to restore by

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replacing a part or putting together what is torn or broken” or “fix”)

(emphasis added). Viewed in this context, the term “replace” is best

read narrowly to have a similar meaning — supplanting an existing

ditch with a new ditch. See Robles, 271 P.3d at 596; cf. Coloradans

for a Better Future, ¶¶ 35-38 (construing the term “gift” narrowly to

mean a monetary gift based, in part, on its inclusion among words

that refer to money).

¶ 21 Second, and more importantly, if we were to construe the term

“replace” broadly enough to include piping a ditch, it would render

the second clause — the right “to improve the efficiency of the ditch,

including by . . . piping the ditch” — superfluous. § 37-86-103.

That clause explicitly mentions piping the ditch and allows doing so

only when it would improve the efficiency of the ditch. If we were to

interpret the term “replace” in the first clause to include piping, it

would allow a beneficiary of the ditch right-of-way to pipe the ditch

for any reason, rendering the second clause meaningless. We will

not adopt such a construction. See Agilent Techs., Inc., ¶ 16;

Coloradans for a Better Future, ¶ 39; People v. Lente, 2017 CO 74,

¶ 21 (“Were we to construe one term to swallow the other, or to be

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its equal, then the other term would be superfluous. We avoid such

constructions.”).

¶ 22 In sum, nothing in the plain language of section 37-86-103

grants the beneficiary of a ditch right-of-way the unfettered right to

pipe the ditch; they must show that piping would improve the

efficiency of the ditch.

C. Application

¶ 23 The district court found that the “evidence did not establish

that piping of the remaining open ditch to the Baker property would

increase the efficiency or materially impact delivery of water to the

properties.” Though Baker disagrees with this finding, he does not

contest it on appeal. In any event, the record supports the finding:

• Baker’s expert witness conceded that he did not measure

how much water the ditch loses to seepage or

evaporation, did not do any soil testing, and did not have

any estimates about how much additional water would

be available to Baker if the ditch was piped.

• Safadi-Chamberlain’s expert witness testified that, due to

the “high percent[age] of clay soil” in the ditch, any water

loss to seepage was “negligible.” He also explained that

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the twelve-inch pipes Baker planned on installing would

be “very small compar[ed] to the size of the ditch” and

that the “area of water flowing” through the pipe “will be

a lot less than [twelve]-inch[es]” because of air, sediment,

and other debris. Therefore, he concluded that “the

amount of water that will be delivered by the pipe . . .

probably will be the same or less” and that piping the

ditch would not create any pressure.

¶ 24 We will not disturb the district court’s factual findings unless

“they are clearly erroneous and not supported by the record.”

Lawry, 192 P.3d at 558. Because the record supports the district

court’s finding that piping the ditch would not improve its

efficiency, we conclude that the district court correctly entered

judgment in favor of Safadi-Chamberlain.

III. Appellate Attorney Fees

¶ 25 Safadi-Chamberlain requests her appellate attorney fees under

C.A.R. 38(b) on the grounds that Baker’s appeal was frivolous. An

appeal may be frivolous as filed or as argued. Calvert v. Mayberry,

2019 CO 23, ¶ 45. An appeal “is frivolous as filed when there are

no legitimately appealable issues because the judgment below ‘was

15
so plainly correct and the legal authority contrary to the appellant’s

position so clear.’” Id. (quoting Castillo v. Koppes-Conway, 148 P.3d

289, 292 (Colo. App. 2006)). If there are legitimately appealable

issues, then “an appeal may still be frivolous as argued if the

appellant ‘fail[s] to set forth . . . a coherent assertion of error,

supported by legal authority.’” Id. (quoting Castillo, 148 P.3d at

292).

¶ 26 Though we have ruled against Baker, we do not view his

appeal as frivolous, either as filed or as argued, such that a fee

award is appropriate, so we deny the request. See Mission Denver

Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984) (“Standards for

determining whether an appeal is frivolous should be directed

toward penalizing egregious conduct without deterring a lawyer

from vigorously asserting his client’s rights.”); see also In re

Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be awarded

only in clear and unequivocal cases . . . .”), aff’d, 2019 CO 81.

IV. Disposition

¶ 27 The judgment is affirmed.

JUDGE TOW and JUDGE SULLIVAN concur.

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