No. 90CA1023 No. 90CA1372Colorado Court of Appeals.
Decided February 27, 1992. Rehearing Denied April 9, 1992. Certiorari Granted August 31, 1992 (92SC303).
Certiorari Granted on the following issues: Whether the court of appeals erred in holding that where a testamentary devise of agricultural property is silent regarding water rights, a trial court must allow proffered evidence to the testator’s intent in order to determine if the devise includes, by implication, a transfer of the water rights historically used on the property.
Appeal from the District Court of Adams County Honorable Richard M. Borchers, Judge.
Michael R. Dice, for Petitioner-Appellee.
Gehler Merrigan, Robert R. Gehler, for Respondent-Appellant.
Division V.
Opinion by JUDGE PLANK.
[1] Respondent, Tom Palizzi, personal representative of the Estate of Anthony Palizzi,Page 564
Jr. (Tony’s Estate) appeals the judgment of the trial court entered in favor of petitioner, Margaret M. Palizzi, personal representative of the Estate of Carl A. Palizzi (Carl’s Estate). We reverse and remand.
[2] This appeal involves the interpretation of the will of Anthony Palizzi, Jr. (the Will). At his death, the testator owned, inter alia, a sixty-acre farm, which had been traditionally supplied water by virtue of certain water rights also owned by testator. The Will specifically devised twenty-acres of farmland to Carl A. Palizzi. The “rest, residue, and remainder” of the estate was devised on an equal basis to the testator’s three sisters and one brother. The testator’s water rights were not expressly devised. [3] Carl’s Estate filed a declaratory judgment action requesting that the trial court construe the Will. It claimed that the water rights were devised with the twenty acres of real estate. Tony’s Estate, on the other hand, contended that any water rights owned by the testator were devised through the residuary clause. [4] The trial court found in favor of Carl’s Estate, holding that the water rights were devised by implication with the twenty acres of land given to Carl A. Palizzi. I.
[5] The issue central to this appeal is whether, as a matter of law, a devise in a will of agricultural real estate, silent as to water rights, transfers by implication the water rights that were historically used on the real estate. The trial court held that it does. We disagree.
(1945); § 15-11-603, C.R.S. (1987 Repl. Vol. 6B); and Moore v. Second Congregational Church, 115 Colo. 392, 175 P.2d 90 (1946). However, in the Kinoshita ruling, our Supreme Court has created an exception to such principle in the law of deeds when the document is silent as to water rights. In such circumstances, the fact-finder may look beyond the four corners of the document to determine the grantor’s intent as to the transfer of water rights. See Arnett v. Linhart, 21 Colo. 188, 40 P. 355
(1895). [11] We know of no reason to limit application of this rule to the construction of deeds. Therefore, we conclude that the trial court properly relied on this rule in its construction of the Will in this matter. However, as discussed below, we find that it incorrectly interpreted the rule.
II.
[12] In applying the Kinoshita exception to this testate proceeding, the trial court held, as a matter of law, that when there is a need to preserve the present or previous use of the land, the water is appurtenant to the land. It therefore admitted evidence as to the historic and beneficial use of the water on the property but denied the admission of extrinsic evidence as to the testator’s intent. This was error.
Page 565
of the circumstances of the case.” Kinoshita v. North Denver Bank, supra; Denver Joint Stock Land Bank v. Markham, 106 Colo. 509, 107 P.2d 313
(1940). Historic use of the water on the property is only one of the factors relevant to the issue.