Irrigation pipe a ‘continuous trespass’

DENVER — The state appeals court says a Montrose couple is entitled to at least nominal damages from the homeowners' association that put a pipeline across a portion of their property.

Lester and Joan Sanderson's case against Heath Mesa Homeowners Association was heard by the Colorado Court of Appeals when that body came to Nucla in February as part of the state judicial branch's "Courts in the Community" outreach program.

The appeals court handed down its decision March 20, finding the local trial court erred when it barred the Sanderson's trespass claim under a two-year statute of limitations.

The appellate judges reversed the judgment and remanded the case to district court for apportioning of monetary damages, which are to be determined based on evidence presented at the original trial.

"It's good," Joan Sanderson said Wednesday of the ruling.

She praised her attorney, Earl Rhodes, and said they would seek as much as $96,000 in damages.

Attorneys for Heath Mesa did not immediately return phone calls Wednesday.

Heath Mesa owns a historical easement for an irrigation ditch, but in 1988, its predecessor-in-interest diverted the irrigation water into an underground pipeline in a different location.

According to the appellate decision, the pipeline began leaking in 1995 and eroding a gravel-and-shale hillside off Jig Road. The Sandersons have 10 acres on top the hill and more property below.

"We've got an orchard here," Joan Sanderson said. "Where our fence is, it (pipeline) goes straight down. If it'd come in any further, we would have lost our orchard and our buildings."

She and her husband sued in 2006, arguing the pipeline constituted a "continuous trespass."

They were awarded a permanent injunction and Heath Mesa was ordered to move the pipeline to follow its historical easement for an irrigation ditch. However, the trial court said there was not continuous trespass and barred the Sanderon's claim for damages.

The Sandersons appealed, claiming the court abused its discretion when it permitted Heath Mesa to raise the statute of limitations as a defense on the eve of trial. They also argued the court's conclusion about continuous trespass was in error.

"Because we conclude the irrigation pipeline constituted a continuing trespass, the Sandersons' trespass claim was not barred by the statute of limitations," the appellate judges wrote in a unanimous decision. "Accordingly, we need not consider their first contention."

Under most circumstances, the act of trespass is complete upon commission. But the appeals court cited an earlier case which found "when a defendant erects a structure or places something on or underneath the plaintiff's land, the defendant's invasion continues if he fails to stop the invasion and to remove the harmful condition."

Heath Mesa argued the pipeline was not continuous trespass because it was a socially beneficial structure and was thus a recognized exemption.

The appeals court did not address that argument, finding it was "undisputed that Heath Mesa did not have lawful authority to construct the irrigation pipeline where it was constructed."

According to the ruling, Heath Mesa also argued liability for some of the damages could be attributed to natural subsidence (an "act of God"), or to the Sandersons' irrigation of their orchard.

Joan Sanderson said they had an irrigation pipe for tail water from the orchard, but that Buckhorn Geotech found their irrigation did not affect the ground water.

The appeals court said the Sandersons did not have to prove Heath Mesa caused all of the damage to their property. It held the association liable for at least nominal damages, but said an "act of God" defense was allowed.

Rhodes said the Sandersons would address that when the matter returns to district court.

A hearing has not yet been set. The defendants have 14 days to file a motion for reconsideration and, if necessary, 30 days after that to petition the Colorado Supreme Court.