a Valley Irrigation Company v. Board of County Commissioners of the County of Montezuma

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
November 12, 2020

2020COA161

No. 19CA1588, Montezuma Valley Irrigation Company v. Board
of County Commissioners of the County of Montezuma —
Transportation — Highway Safety — Owners Construct Culverts

A division of the court of appeals considers the obligations

imposed by section 43-5-305(1), C.R.S. 2019, which requires the

owner or builder of a ditch, race, drain, or flume that crosses a

highway to “construct” a culvert, bridge, or similar structure and

requires the board of county commissioners to “maintain” that

structure. As a matter of first impression, the division concludes

that the board of county commissioners’ obligation to “maintain”

such culverts, bridges, and similar structures includes the

obligation to replace the structures.
COLORADO COURT OF APPEALS 2020COA161

Court of Appeals No. 19CA1588
Montezuma County District Court No. 18CV30069
Honorable Douglas S. Walker, Judge

Montezuma Valley Irrigation Company,

Plaintiff-Appellee,

v.

The Board of County Commissioners of the County of Montezuma, Colorado,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE GOMEZ
Fox and Martinez*, JJ., concur

Announced November 12, 2020

Hoskin Farina & Kampf, John P. Justus, Karoline M. Henning, Grand
Junction, Colorado, for Plaintiff-Appellee

John Baxter, County Attorney, Durango, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 A state statute allocates the responsibilities for any ditch that

crosses a roadway: the ditch owner or creator must “construct” a

culvert, bridge, or similar structure across the road; and the county

must “maintain” that structure. But when the structure reaches

the end of its useful life, who is responsible for replacing it?

¶2 This case requires us to answer that question. A ditch owner,

Montezuma Valley Irrigation Company (MVIC), and a board of

county commissioners, the Board of County Commissioners of the

County of Montezuma (the county), disagree about which of them

bore the responsibility for replacing a culvert that allowed irrigation

water to flow through a ditch under a county road.

¶3 Section 43-5-305(1), C.R.S. 2019, assigns the responsibilities

for ditches, races, drains, and flumes as follows:

Any person or corporation owning or
constructing any ditch, race, drain, or flume
in, upon, or across any highway shall keep the
highway open for safe and convenient travel by
constructing culverts, bridges, or similar
structures over such ditch, race, drain, or
flume. When any ditch is constructed across,
in, or upon any highway, the person owning or
constructing such ditch shall construct a
culvert, bridge, or similar structure long
enough to conduct the water from shoulder to
shoulder from such road or highway or of such
greater length as the board of county

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commissioners having jurisdiction thereover
may require . . . . The board of county
commissioners shall maintain said culvert,
bridge, or similar structure after construction,
in accordance with the provisions of section
37-84-106, C.R.S.

(Emphases added.) Section 37-84-106, C.R.S. 2019, in turn,

provides that “[a]ll bridges constructed over any ditch, race, drain,

or flume crossing any public highway, street, or alley, after

construction, shall be maintained by and at the expense of the

county or municipality in which such ditch, race, drain, or flume

may be situated.” (Emphasis added.) Because the General

Assembly has broadly defined “highways,” the provisions of section

43-5-305(1) apply to any public road. See § 43-2-201, C.R.S. 2019.

¶4 We conclude, as the district court did, that the county’s

statutory obligation under section 43-5-305(1) to “maintain”

culverts, bridges, and similar structures includes the obligation to

replace such structures. Accordingly, we affirm the judgment.

I. Background

¶5 MVIC is a mutual ditch and reservoir company formed in

accordance with sections 7-42-101 through 7-42-118, C.R.S. 2019.

It owns and maintains the U Lateral Ditch, which it uses to deliver

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irrigation water to its shareholders. The ditch passes under County

Road W in Montezuma County.

¶6 At some point before 2017, a culvert was installed under

County Road W where it intersects with the U Lateral Ditch to allow

water from the ditch to pass under the road.1 In 2017, the county

determined the culvert had reached the end of its useful life and

needed to be replaced to ensure the safety of travelers along the

road. The county asked MVIC to pay for a new culvert or provide

labor and equipment for the installation. MVIC declined to do so.

So, in early 2018, the county replaced the culvert itself and sought

reimbursement from MVIC.

¶7 In response, MVIC filed a complaint for declaratory judgment

and a motion for summary judgment under C.R.C.P. 56(h), arguing

that section 43-5-305(1) assigns responsibility for replacing the

culvert to the county. The county responded that the statute

1 It’s unclear exactly who constructed the original culvert, or when,
or whether the road or the ditch existed first, but none of those
facts affects our analysis. Nor do the parties’ past dealings
replacing other culverts in the county affect our analysis. Those
dealings might be relevant if we were interpreting a contract
between the parties, but they have no bearing in interpreting a
legislative enactment.

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assigns such responsibility to MVIC. The county also argued that

summary judgment wasn’t appropriate due to genuine issues of

material fact regarding the parties’ statutory obligations.

¶8 In support of its position, the county submitted an affidavit by

its road and bridge department superintendent, who explained that

in the construction industry the word “maintenance” means work to

keep an existing structure (like a culvert) in working condition. The

word does not, he expressed, include work to replace an existing

structure, which would be considered “new work.” Based on his

knowledge of the industry, he opined that the duty to maintain a

culvert does not include the duty to replace that culvert.

¶9 The district court granted MVIC’s summary judgment motion,

concluding that there were no issues of material fact and that the

statute charges the county with the responsibility for replacing the

culvert. Accordingly, the court ordered that MVIC is not obligated

to reimburse the county for the replacement costs.

II. Analysis

¶ 10 The county argues that the district court erred in granting

summary judgment because it ignored genuine issues of material

4
fact and misinterpreted the statute. We address each argument in

turn.

A. Genuine Issues of Material Fact

¶ 11 The county first contends that the district court erred because

there were genuine issues of material fact that should’ve precluded

a decision on summary judgment. We disagree.

¶ 12 C.R.C.P. 56(h) permits a party to move for a determination of a

question of law. Coffman v. Williamson, 2015 CO 35, ¶ 11. We

review de novo a trial court’s order deciding a question of law under

this rule. Id. at ¶ 12. Under the applicable summary judgment

standard, “an order is proper under Rule 56(h) ‘[i]f there is no

genuine issue of any material fact necessary for the determination

of the question of law.’” Id. (quoting C.R.C.P. 56(h)). A genuine

issue of material fact is one that, if resolved, will affect the outcome

of the case. City of Aurora v. ACJ P’ship, 209 P.3d 1076, 1082

(Colo. 2009). The nonmoving party is given all favorable inferences

from the undisputed facts, and all doubts as to the existence of a

triable factual issue are resolved against the moving party.

Coffman, ¶ 12.

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¶ 13 The county argues that three genuine issues of material fact

precluded determination of the question of law.

 First, because section 43-5-305(1) doesn’t include the

word “replace” or define the word “maintain,” there is an

issue of material fact as to who bears the burden of

replacing the culvert.

 Second, its affidavit raised an issue of material fact

concerning the meaning of the word “maintain.”

 And third, there is an issue of material fact as to whether

requiring it (and thus public taxpayers) to pay for a

culvert conveying water to a private corporation’s

shareholders would create an absurd result.

¶ 14 We disagree with the county’s characterization of these issues.

All three issues involve questions of law, not fact. Discerning the

meaning of specific words in a statute is a matter of statutory

interpretation, not factfinding. “Statutory interpretation involves

only questions of law . . . .” Smith v. Exec. Custom Homes, Inc., 230

P.3d 1186, 1189 (Colo. 2010). And a genuine issue of material fact

“cannot be raised by counsel simply by means of argument.” People

6
in Interest of S.N. v. S.N., 2014 CO 64, ¶ 17 (quoting Sullivan v.

Davis, 172 Colo. 490, 495, 474 P.2d 218, 221 (1970)).

¶ 15 The county points out that, under section 2-4-101, C.R.S.

2019, “[w]ords and phrases that have acquired a technical or

particular meaning, whether by legislative definition or otherwise,

shall be construed accordingly.” Thus, we must effectuate “‘the

commonly accepted technical or particular meaning’ of words that

have acquired such meanings” within a specific industry or as a

legal term of art. Sheep Mountain All. v. Bd. of Cty. Comm’rs, 271

P.3d 597, 604 (Colo. App. 2011) (citation omitted); see also DISH

Network Corp. v. Altomari, 224 P.3d 362, 368 (Colo. App. 2009).

¶ 16 But the county superintendent’s opinions concerning the

common understanding of the word “maintain” in the present-day

construction industry do not suggest that the word held the same

meaning or that the General Assembly intended to apply that

meaning when it adopted this statutory provision in 1883 or when

it amended the provision in 1885 and 1947. See Sheep Mountain,

271 P.3d at 604 (rejecting a proposed interpretation of a term in an

ordinance, as “no evidence in the record indicated that the drafters

. . . intended this plain meaning to apply”); see also People v.

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O’Neal, 228 P.3d 211, 214 (Colo. App. 2009) (“[T]he most relevant

time period for determining a statute’s meaning is the time when

the statute was enacted . . . .”).2

¶ 17 Therefore, we conclude that the district court did not err by

disregarding the county superintendent’s affidavit and deciding the

legal issues in this case on summary judgment.

B. Statutory Interpretation

¶ 18 Next, the county contends that the district court erroneously

interpreted section 43-5-305(1) when it concluded that the county’s

obligation to maintain a culvert includes an obligation to replace

the culvert. Again, we disagree.

¶ 19 We review issues of statutory interpretation de novo. McCoy v.

People, 2019 CO 44, ¶ 37. Our primary purpose in construing a

statute is “to determine and give effect to the intent of the

legislature and adopt the statutory construction that best

effectuates the purposes of the legislative scheme.” People v.

2 Because of the age of the statute and its amendments, the most
recent of which occurred in 1947, there is very little legislative
history on it — and none touching on this issue. The same is true
of the referenced section 37-84-106, C.R.S. 2019, which was
adopted in 1913 and has never been amended.

8
Yascavage, 101 P.3d 1090, 1093 (Colo. 2004). In doing so, we are

guided by the basic principles of statutory interpretation. Id. We

begin by looking to the plain language of the statute, reading words

and phrases in context and construing them literally according to

common usage unless they have acquired a technical meaning. Id.;

see also § 2-4-101. If the language is unambiguous, we look no

further. Yascavage, 101 P.3d at 1093.

¶ 20 Statutory language is unambiguous if it is susceptible of only

one reasonable interpretation. People v. Diaz, 2015 CO 28, ¶ 13.

“The plainness or ambiguity of statutory language is determined by

reference to the language itself, the specific context in which that

language is used, and the broader context of the statute as a

whole.” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997)). Moreover, “legislative failure to define a term does not

necessarily make it ambiguous,” particularly where “the statutorily

undefined term has a commonly understood meaning.” Stoesz v.

State Farm Mut. Auto. Ins. Co., 2015 COA 86, ¶ 13.

¶ 21 Applying these principles, we conclude that the duty to

“maintain” in section 43-5-305(1) unambiguously includes the duty

to replace. We reach this conclusion for several reasons.

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¶ 22 First, the dictionary definition of the word “maintain” supports

this conclusion. See People v. Pratarelli, 2020 COA 33, ¶ 15 (“When

determining the common meaning of undefined statutory words, we

may consider a recognized dictionary definition.”). “Maintain” is

defined as “to keep in an existing state (as of repair, efficiency, or

validity).” Merriam-Webster Dictionary, https://perma.cc/W57G-

NN5T. This definition suggests that maintaining a structure would

include undertaking anything necessary to repair, restore, or

replace it so as to keep it in existence.

¶ 23 The supreme court adopted a similar definition of “maintain”

in interpreting parts of the Colorado Governmental Immunity Act

(CGIA). Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1384-88

(Colo. 1997). That case considered the provisions waiving sovereign

immunity in actions for injuries resulting from a dangerous

condition on a public road “caused by the negligent act or omission

of the public entity in constructing or maintaining” the road. Id. at

1384 (emphasis omitted) (quoting § 24-10-103(1), C.R.S. 1988).3 In

3The quoted provision is now located, in a slightly altered form, at
section 24-10-103(1.3), C.R.S. 2019.

10
that case, the City of Fort Collins hadn’t constructed the road at

issue, but had maintained it. Id. Noting that the CGIA didn’t define

“maintain,” see id., the court cited a dictionary defining the word as

“keeping a constructed edifice, structure, or improvement in the

same general state of being, repair, or efficiency as initially

constructed.” Id. at 1385 (emphasis omitted) (citing Webster’s Third

New International Dictionary 1362 (1986)). Relying in part on this

definition, the court concluded that the word “maintain” in section

24-10-103(1) “means to repair or restore a roadway to the same

condition as originally constructed.” Id. at 1388. As pertinent to

the facts of that case, however, the court held that the city’s mere

ownership and maintenance of the road didn’t give rise to liability

for a design flaw. Id. at 1384-88.

¶ 24 Second, statutory definitions of “maintain” in other sections of

Title 43 support our interpretation. Cf. Castillo v. People, 2018 CO

62, ¶ 42 (“Statutory definitions of words used elsewhere in the same

statute furnish authoritative evidence of legislative intent.”). In two

other provisions within the same title, the General Assembly has

defined a duty or right to “maintain” as including a duty or right to

“replace.” In a statute concerning roadside memorials — which

11
requires the Department of Transportation to “erect and maintain”

certain memorials and permits individuals to “erect and maintain”

other memorials — a definition explains that “‘[m]aintain’ means to

preserve, keep in repair, or replace a roadside memorial.”

§ 43-2-149(1)(e), C.R.S. 2019 (emphasis added); see also

§ 43-2-149(2)(a)(I), (2.5)(a)(I), (3)(a)(I). And in the statutes governing

roadside advertising — which permit individuals to “erect” and

“maintain” various advertising devices and to “maintain” some

nonconforming devices — a definition makes clear that “‘[m]aintain’

means to preserve, keep in repair, continue, or replace an

advertising device.” § 43-1-403(9), C.R.S. 2019 (emphasis added);

see also, e.g., §§ 43-1-404(1)-(2), 43-1-413(1), C.R.S. 2019.

¶ 25 Although the General Assembly didn’t include a definition of

“maintain” (or any other term) in section 43-5-305, we can presume

that it intended to use the word in a way similar to how it is used in

other sections within Title 43. See Castillo, ¶ 42; see also Bd. of

Cty. Comm’rs v. City of Aurora, 62 P.3d 1049, 1052 (Colo. App.

2002) (applying a definition of a statutory term that “comports with

the General Assembly’s use of the term elsewhere”).

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¶ 26 Third, a supreme court case applying an earlier version of

section 43-5-305(1) to resolve a similar dispute — where a ditch

owner and a county disputed who was responsible for replacing a

bridge that spanned a ditch — further supports our interpretation.

People v. Farmers’ High Line Canal & Reservoir Co., 52 Colo. 626,

627-32, 123 P. 645, 645-47 (1912).

¶ 27 At the time the supreme court decided Farmers’, the 1885

version of section 43-5-305(1) was in effect. Much like the current

version, that version of the statute obligated a ditch owner to

construct a bridge if its ditch crossed a road. But that version

allocated the responsibility for maintaining such a bridge differently

depending on its length: if the bridge was twenty feet or less in

length, it was to be “maintained by the county”; but if it was over

twenty feet long, it was to be “maintained . . . by the owner or

owners of [the] ditch.” 1885 Colo. Sess. Laws 324.

¶ 28 The bridge at issue in Farmers’ had been lengthened several

times over the years to accommodate the expansion of the ditch,

such that by the time of the dispute it was over twenty feet long. Id.

at 628, 123 P. at 646. Much like in this case, the county, which

had been maintaining the bridge, asked the ditch owner to replace

13
it, and when the owner declined to do so, the county undertook the

replacement itself and sought reimbursement. Id. at 627, 123 P. at

645-46. When the county sued to recover its construction costs,

the parties disputed whether the statute applied since the ditch

predated both the statute and the road. Id. at 630, 123 P. at 646.

The supreme court ruled that the enlargement of the ditch over time

brought it within the statute’s scope, holding that “a proper

construction of the Act of 1885 is that it was intended to cover the

future maintenance of a bridge in excess of 20 feet in length

required by either original construction or enlargement.” Id. at 632,

123 P. at 647. The court therefore reversed the trial court’s ruling

granting the ditch owner’s motion for nonsuit. Id.

¶ 29 While Farmers’ doesn’t directly address the meaning of the

word “maintain,” its holding and reasoning demonstrate the court’s

understanding that the party who bore the maintenance obligation

for the bridge would bear the replacement obligation. That fact,

along with the fact that the General Assembly later amended the

statute to its current form without modifying or defining “maintain”

(other than to place all maintenance obligations on counties,

regardless of a bridge’s length), supports our interpretation today.

14
See Ch. 271, sec. 1, 1947 Colo. Sess. Laws 747; see also Marcellot

v. Exempla, Inc., 2012 COA 200, ¶ 27 (“When the legislature

reenacts or amends a statute and does not change a section

previously interpreted by settled judicial construction, it is

presumed that it agrees with judicial construction of the statute.”

(quoting Tompkins v. DeLeon, 197 Colo. 569, 571, 595 P.2d 242,

243-44 (1979))).

¶ 30 Fourth, the supreme court has taken a similar approach in

applying other statutory provisions that use the word “maintain.”

For instance, in two cases applying slightly different versions of

section 37-84-112(1), C.R.S. 2019 — which at all relevant times has

required irrigation ditch owners to “erect” and “maintain” proper

headgates to control the flow of water — the court indicated that a

ditch owner’s statutory duty to maintain includes a duty to replace.

Tatum v. People ex rel. Simpson, 122 P.3d 997, 997-99 (Colo. 2005)

(per curiam) (affirming an injunction from continuing violation of

the statute “by failing to maintain a suitable and proper headgate”

after a ditch owner failed to comply with an order requiring it to

install a controllable, lockable headgate in place of an existing

headgate that failed to properly control water flow); Seven Lakes

15
Water Users’ Ass’n v. Fort Lyon Canal Co., 89 Colo. 515, 521, 4 P.2d

1112, 1114 (1931) (affirming an order requiring a ditch owner to

construct new water controls, reasoning that a headgate’s

destruction by flood “does not operate to relieve the [owner] of its

statutory duty to maintain a headgate or some device equivalent

thereto in its ditch”). Notably, while the statute at issue in those

cases requires the same person to both “erect” and “maintain” a

headgate, both decisions focused on the word “maintain” in

addressing the duty to replace a defunct headgate.

¶ 31 Similarly, in a case decided about a decade after the General

Assembly enacted the earliest version of section 43-5-305(1), the

supreme court held that “the signification to be given to the word

‘maintain’” in a Denver ordinance requiring railways to “furnish,

construct, put in place, and maintain” syphons for carrying away

surface water “is to keep in repair or replace.” City of Denver v.

Denver City Cable Ry. Co., 22 Colo. 565, 568-69, 45 P. 439, 440

(1896); see also O’Neal, 228 P.3d at 214 (“[T]he most relevant time

period for determining a statute’s meaning is the time when the

statute was enacted.”).

16
¶ 32 Finally, we disagree with the county’s contention that our

interpretation leads to an absurd result by obligating taxpayers to

pay for a culvert that benefits only corporate shareholders. See

Smith, 230 P.3d at 1190 (courts “should avoid an interpretation

that produces an illogical or absurd result”). Replacing a defunct

culvert benefits more than just the shareholders who receive water

using the culvert. It also benefits anyone who travels on the road

by ensuring the road’s structural integrity. Indeed, in directing the

replacement of the culvert, the county cited the need to ensure the

safety of travelers along the road. There is nothing illogical about

requiring a county to both maintain a culvert and replace that

culvert when it reaches the end of its useful life and might pose a

danger to travelers using the road above it.

III. Conclusion

¶ 33 The judgment is affirmed.

JUDGE FOX and JUSTICE MARTINEZ concur.

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