Innis v. Innis

23CA1970 Innis v Innis 10-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1970
Mesa County District Court No. 20CV30309
Honorable Valerie J. Robison, Judge

Norma J. Innis and Richard L. Innis,

Plaintiffs-Appellees,

v.

Dain D. Innis and Lynnette Y. Innis,

Defendants-Appellants.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE JOHNSON
Fox and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 3, 2024

Brett R. Lilly, LLC, Brett R. Lilly, Wheat Ridge, Colorado, for Plaintiffs-Appellees

Wegener Lane & Evans, P.C., Benjamin M. Wegener, Dalen B. Porter, Grand
Junction, Colorado, for Defendants-Appellants
¶1 Defendants, Dain D. Innis (Dain) and Lynette Y. Innis (Lynn),1

appeal the district court’s judgment concluding that plaintiff Norma

J. Innis (Norma) did not convey water rights to Dain’s sole

ownership. We affirm.

I. Background

¶2 Norma and her husband, Richard L. Innis (Richard), owned

several adjacent properties in Grand Junction: 2108 Desert Hills

Road (2108 property), 2110 1/2 Desert Hills Road (2110 1/2

property), and 2112 Desert Hills Road (2112 property). Norma and

Richard live at the 2108 property. Dawn Maiella (Dawn), Norma

and Richard’s daughter and Dain’s sister, lives at the 2112

property. In 1989, the three properties were placed into the Innis

Land Trust (trust). At the creation of the trust, no Innis family

member held an interest in 2110 Desert Hills Road (2110 property),

the property at issue in the action.

¶3 The 2110 property parcel includes portions of two bodies of

water. The parties refer to the bigger body of water as Barrett Pond

1 Because many of the parties share the same last name, we will

refer to individuals by their first names. No disrespect is intended.

1
(and sometimes the “lake”) and the smaller body of water as Barrett

Ditch.

¶4 In 1990, Dain moved to Grand Junction and lived with Norma

and Richard. Dain eventually moved into a mobile home placed on

the 2110 1/2 property. Norma and Richard intended that the 2110

1/2 property and the 2112 property be given to Dawn and Dain,

respectively, as their shares of the trust. The map below, which

was admitted as an exhibit at trial, depicts the four properties

discussed in this opinion.2

2 The map is an aerial view of the four properties discussed in this

opinion taken from plaintiff’s Exhibit 20. The image includes the
properties from top to bottom: 2108, 2110, 2110 1/2, and 2112.
There are yellow lines depicting the boundaries of the four
properties. The 2110 1/2 property does not have a number labeling
it. The properties adjacent to the numbered properties are not a
part of this matter.

2
¶5 In 1993, Juel Noren (Noren) and his spouse purchased the

2110 property. Norma and Richard became close with the Norens,

and the four discussed Norma and Richard’s acquisition of that

property to place in the trust corpus. In 2003, an agreement and

promissory note were drafted; the agreement was signed by Dain

and Norma and the promissory note was signed by Dain, Norma,

and Richard. Noren did not sign the agreement, so the 2110

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property did not transfer at that time; Noren intended to devise the

2110 property to the Innises upon his death.

¶6 In February 2005, however, Noren executed a warranty deed

conveying the property in joint tenancy to himself, Norma, and

Dain. Following Noren’s death, a relative of Noren’s unsuccessfully

challenged Noren’s conveyance of the 2110 property to Dain and

Norma. After the lawsuit, Dain and his wife, Lynn, began living on

the property.

¶7 In 2014, a fire caused extensive damage to the 2110 property.

The property was covered by a homeowner’s insurance policy.

Insurance payouts were made to Dain and Norma, as joint tenants,

and were received in the mail via check. The insurance proceeds

were used to build a new home. To facilitate electronic delivery of

the insurance proceeds, Dain added Norma to his bank account.

¶8 The insurance proceeds did not cover the entire rebuilding

cost. Norma was unwilling to cosign a loan, but she agreed to sign

a quitclaim deed so that the 2110 property would be solely in Dain’s

name and could be used as collateral.

¶9 At the bench trial, Richard and Norma testified that they made

it clear to Dain that the 2110 property was to be restored to the

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joint tenancy with Norma once he completed the project so that the

property could be added to the trust. Dain testified, though, that it

was always his intent to obtain a mortgage with Lynn and never

return the property to the joint tenancy with Norma.

¶ 10 Norma signed the quitclaim deed on February 18, 2016.

Norma did not receive consideration for this conveyance. On

February 23, 2016, Dain signed the quitclaim deed, so the property

was solely in his name. On that same day, Dain conveyed the

property as a joint tenancy with Lynn. On March 4, 2016, Dain

and Lynn acquired a mortgage on the 2110 property.3

¶ 11 Over the next several years after the conveyance, Dain’s

relationship with his parents significantly deteriorated.

¶ 12 Norma eventually filed a complaint to restore her as a joint

tenant of, and to remove Lynn from the title on, the 2110 property.

Norma asserted six claims against Dain and Lynn, including unjust

enrichment, promissory estoppel, breach of contract, constructive

3 Wells Fargo holds the note for Dain and Lynn’s mortgage with the

2110 property as collateral. Wells Fargo was originally named in
the complaint. All parties entered into a stipulation acknowledging
that Wells Fargo has a first position priority lien encumbered on the
property and that, regardless of the quiet title action, Wells Fargo’s
first position priority lien remains in effect.

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trust, fraudulent inducement, and quiet title as to water rights.

Dain and Lynn counterclaimed, naming Richard as a third-party

defendant and asserting four claims including quiet title,

declaratory judgment, breach of contract, and conversion. At some

point after Norma’s complaint was filed, Dain broke into his

parents’ home and stole most of Norma’s records relating to the

2110 property. The records were later provided to Norma and

Richard as part of the discovery process.

¶ 13 After a four-day bench trial, the district court issued a detailed

order on November 22, 2022 (November 2022 order). The district

court found that the deed conveying the 2110 property to Dain was

a valid transfer, so Norma’s claims for breach of contract,

constructive trust, promissory estoppel, and fraudulent inducement

failed. The court, however, found that Dain was unjustly enriched

by keeping the property solely in his name because Norma signed

the quitclaim deed for no consideration. The court entered a

judgment in favor of Norma for $240,390 for her share of the

property as a former joint tenant.

¶ 14 As pertinent to this appeal, the district court also found that

the water rights to the 2110 property were not transferred by the

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2016 quitclaim deed signed by Norma and that such rights

remained held in joint tenancy by Dain and Norma.

¶ 15 The court stated that the warranty deed from Noren conveying

the property to Dain and Norma included language that conveyed

“all water, water rights, ditches and ditch rights appurtenant

thereto,” but the 2016 quitclaim deed from Norma to Dain did not

include this language. The court determined that Norma’s

conveyance was intended to be a short-term transfer so Dain could

obtain a loan, that the parties did not discuss water rights when the

conveyance occurred, and that there was insufficient evidence

presented of any intent to convey water rights.

¶ 16 On appeal, Dain and Lynn contend that the district court

erred by (1) holding that water rights related to the 2110 property

did not transfer solely to Dain on February 23, 2016; (2) failing to

determine that the water rights were incidental and necessary to

the 2110 property; and (3) infringing on Lynn’s rights by quieting

title of the water rights to Dain and Norma as joint tenants.

II. Jurisdiction

¶ 17 Initially, Dain and Lynn filed a notice of appeal seeking review

of the district court’s November 2022 order. Norma and Richard

7
filed a cross-appeal. The appeal and cross-appeal were dismissed

by this court without prejudice because we lacked a final

appealable order.

¶ 18 In February 2023, Norma and Richard then filed motions in

the district court requesting that the court issue (1) a decree

quieting title to all water rights related to the 2110 property to Dain

and Norma as joint tenants; (2) an order on their bill of costs; and

(3) an order determining prejudgment interest owed to Norma for

her judgment of $240,390 entered as part of the November 22

order. After briefing on the motions, the district court issued on

September 27, 2023: (1) a decree quieting title to the water rights

related to the 2110 property; (2) an order awarding Norma and

Richard their costs; and (3) an order awarding Norma $129,665.71

in prejudgment interest (September 2023 orders).

¶ 19 Norma and Richard contend that we lack jurisdiction to review

the court’s November 2022 order because Dain and Lynn’s (1)

second notice of appeal references only the September 2023 orders

and (2) second appeal was untimely, as it was filed nearly a year

after the November 2022 order.

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¶ 20 We must independently determine our jurisdiction over an

appeal. People v. S.X.G., 2012 CO 5, ¶ 9. Subject to exceptions

inapplicable here, an appeal to this court may be taken only from a

final judgment. § 13-4-102(1), C.R.S. 2024; see also C.A.R. 1(a)(1);

People v. G.S., 2018 CO 31, ¶ 37.

¶ 21 To be a final appealable order, a judgment or order must

address both liability and damages. Chavez v. Chavez, 2020 COA

70, ¶ 28. Because prejudgment interest is a component of a

damages award, “a judgment awarding prejudgment interest is

not final until the amount of such interest is reduced to a sum

certain.” Stone Grp. Holdings LLC v. Ellison, 2024 COA 10, ¶ 23

(quoting Grand Cnty. Custom Homebuilding, LLC v. Bell, 148 P.3d

398, 401 (Colo. App. 2006)).

¶ 22 If, however, prejudgment interest can be calculated on the face

of the judgment, calculation of the interest is a “ministerial” task,

rendering the judgment final for purposes of appeal. Id. at ¶¶ 25-

26. But for prejudgment interest to be reduced to a sum certain,

the order must include “(1) the amount of the judgment; (2) the

interest rate; and (3) the date on which accrual of prejudgment

interest begins.” Id. at ¶ 26.

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¶ 23 At the time Dain and Lynn filed their first notice of appeal, the

November 2022 order was not final because, although it set forth

the judgment amount of $240,390, it did not identify the interest

rate or the date prejudgment interest would begin to accrue.

Therefore, the November 2022 order was not final under the test in

Stone Group Holdings, which is why this court dismissed the first

appeal for lack of a final appealable order; the court’s judgment,

however, became final with the September 2023 order that reduced

the prejudgment interest award to a sum certain; therefore, the

second notice of appeal was timely filed. And because the district

court incorporated its November 22 order into the September 23

decree, our review includes the November 2022 and September

2023 orders.

III. Standard of Review

¶ 24 “When a court enters a judgment following a bench trial, that

judgment presents a mixed question of law and fact.” State Farm

Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. Under the mixed

standard, “[f]indings of fact are generally reviewed under a clear

error or abuse of discretion standard, whereas conclusions of law

are generally reviewed under a de novo standard.” E-470 Pub.

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Highway Auth. v. 455 Co., 3 P.3d 18, 22 (Colo. 2000). We may

consider the “ultimate conclusion as one of fact for purposes of

review and apply the clear error standard.” Id. In this case, the

district court made factual findings intertwined with conclusions of

law based on the testimony of the parties.

IV. Analysis

¶ 25 Dain and Lynn raise three arguments to support that Norma

transferred the water rights associated with the 2110 property to

Dain’s sole ownership: (1) the express terms of the quitclaim deed

transferred the water rights; (2) the water rights are incidental and

necessary to the 2110 property; and (3) the court’s September 2023

orders infringe on Lynn’s rights. We reject all three arguments.

1. Express Terms

¶ 26 Dain and Lynn contend that the water rights were transferred

to Dain’s sole ownership based on the 2016 quitclaim deed’s

express language that conveyed the property and all its

appurtenant rights. Dain and Lynn refer to the following clause:

TO HAVE AND TO HOLD same unto Grantees,
together with all and singular the
appurtenances and privileges thereunto
belonging or in anywise thereunto
appertaining, and all the estate, right, title,

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interest and claim whatsoever, of the Grantor,
either in law or equity, to the only proper use,
benefit and behoof of the grantees, their heirs
and assigns forever.

Thus, Dain and Lynn assert, Norma and Dain’s intent as co-

grantors was to convey all “right, title, interest, and claim

whatsoever” to the 2110 property to the “only proper use” and

benefit of Dain, which included the water rights.

¶ 27 In Colorado, water rights are separate from the interests in

land. See Bd. of Cnty. Comm’rs v. Park Cnty. Sportsmen’s Ranch,

LLP, 45 P.3d 693, 707 (Colo. 2002) (“[N]either surface water, nor

ground water, nor the use rights thereto, nor the water-bearing

capacity of natural formations belong to a landowner as a stick in

the property rights bundle.”); see also Travelers Ins. Co. v. Janitell

Farms, Inc., 609 P.2d 1116, 1117 (Colo. App. 1980) (“[A] water right

is a property right separate and apart from the land on which it is

used . . . . The land for which it was appropriated or on which it

has been used may be conveyed or held without the water, and the

water may be conveyed or held without the land.” (quoting Nielson

v. Newmyer, 228 P.2d 456, 458 (Colo. 1951))). Thus, “[o]nce

acquired, water rights may be transferred separately from the

12
property itself.” WRWC, LLC v. City of Arvada, 107 P.3d 1002, 1005

(Colo. App. 2004); see also Humphrey v. Sw. Dev. Co., 734 P.2d 637,

640 (Colo. 1987).

¶ 28 To convey water rights, “the same formalities shall be observed

and complied with as in the conveyance of real estate.” § 38-30-

102(2), C.R.S. 2024. It has long been the law in Colorado that

water rights are determined by the express terms of the deed that

purportedly transfers the rights. Wanamaker Ditch Co. v. Crane,

288 P.2d 339, 343 (Colo. 1955).

¶ 29 The 2005 warranty deed conveying the 2110 property in joint

tenancy to Noren, Dain, and Norma had language that the

conveyance included “all water, water rights, ditches and ditch

rights appurtenant thereto.” But the 2016 quitclaim deed that

conveyed the property from a joint tenancy between Norma and

Dain to Dain’s sole possession did not include that same language.

See Nielson, 228 P.2d at 458 (“The land for which it was

appropriated or on which it has been used may be conveyed or held

without the water, and the water may be conveyed or held without

the land, or any part of the land may be conveyed together with any

part of the water right and the remainder be retained.”) (citation

13
omitted). Therefore, given the title history for the 2110 property,

the district court did not err when it looked at the prior conveyance

documents and concluded that, if water rights were intended to be

transferred, the 2016 quitclaim deed could have expressly said so.

In other words, the 2005 warranty deed executed by Noren included

the water rights, and therefore, the parties knew how to convey

those rights but chose not to do so in the 2016 quitclaim deed. See

Fox v. 1-10, Ltd., 936 P.2d 580, 582-83 (Colo. App. 1998) (as part of

a contract interpretation analysis, finding that parties knew how to

exempt certain provisions of a partnership agreement’s amendment

procedures, while they intentionally “chose not to” exempt others),

aff’d, 957 P.2d 1018 (Colo. 1998). Nonetheless, Dain contends, and

we agree, that in certain circumstances, transfer of the property

and the appurtenances can include transfer of the water rights.

Whether water rights are appurtenant to the land, however, “is

generally a question of fact, as is also whether on a sale or transfer

of the land, the water right passes as an appurtenance.” Travelers

Ins. Co., 609 P.2d at 1118 (citing Denver Joint Stock Land Bank v.

Markham, 107 P.2d 313 (Colo. 1940)). “Where, in conveyance of

land a part only of the appurtenant water right is described and

14
specified as being conveyed therewith, such specific designation

destroys any presumption of intention to convey the remainder.”

Nielson, 228 P.2d at 458-59.

¶ 30 In considering the testimony of all parties, the district court

determined that the transfer was intended to be temporary so Dain

could obtain a loan and that the parties did not discuss the transfer

of water rights. Because of the short-term nature of the

transaction, it was reasonable to infer that the parties had not

discussed the water rights. This inference is supported by Dain’s

affidavit stating that, at the time of the conveyance, he “did not

understand that ownership of water rights could be separate from

ownership of the land.”

¶ 31 Nonetheless, Dain contends that he testified at trial that his

intent was to transfer the entirety of the 2110 property interest to

his sole possession and then put Lynn’s name on the title. He says

this makes sense because he was estranged from his parents and

because his sister has her own property from the trust so he should

have one as well. But Dain and Lynn did not certify transcripts

from the bench trial on appeal, and therefore, we must presume

15
that the court’s judgment was correct. See People v. Duran, 2015

COA 141, ¶ 21.

¶ 32 And regardless, the November 2022 order made credibility

determinations and weighed the conflicting evidence and testimony

about the parties’ intent surrounding the 2016 quitclaim deed. The

court reasoned that “it is more likely than not that Dain was

intentionally vague about any promises or agreements he was

making so that his mother would take her name off the Property

and give the Property solely to him.” Credibility determinations are

within the sole province of the fact finder, and we may not reweigh

the evidence or substitute our judgment for that of the district

court. See Target Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12,

¶ 24.

¶ 33 Dain and Lynn also contend that the water rights for the

Barrett Ditch and Barrett Pond were severed in 1986, which would

mean that he owned the water rights to Barrett Pond. Norma and

Richard claim this argument is unpreserved. But even if Dain and

Lynn made this argument in the summary judgment briefing, we do

not know how or if the argument was raised at trial because we lack

a transcript. See Duran, ¶ 21.

16
¶ 34 Finally, Dain and Lynn contend that because the title history

transferring the water rights to his parents for the 2108 property

also contained a general reference to that land’s appurtenant rights,

the general language in the 2016 quitclaim deed likewise

transferred the water rights associated with the 2110 property. As

part of this argument, he and Lynn ask us to take judicial notice of

three deeds, attached to their opening brief, relating to the title

histories for the 2108 and 2110 properties.

¶ 35 These arguments were not raised below, and the documents

were not presented to the district court for its consideration.

Consequently, we decline to take judicial notice of documents, and

we will not review this argument further. See Laleh v. Johnson,

2016 COA 4, ¶ 8, aff’d on other grounds, 2017 CO 93.4

4 Other arguments Dain and Lynn assert on appeal but did not

raise below include the following: (1) Dain and Lynn own the
“improvements” to the Barrett Pond and Barrett Ditch located on
the 2110 property based on the improvements clause in the 2016
quitclaim deed, and (2) the title history for the 2110 property did
not always provide a detailed description of the water rights being
transferred. Consequently, we will not address them. See Laleh v.
Johnson, 2016 COA 4, ¶ 8, aff'd on other grounds, 2017 CO 93.

17
2. Incidental and Necessary

¶ 36 Dain and Lynn next contend that the water rights must have

been transferred to his sole ownership because those rights are

incidental and necessary to the 2110 property. They continue that

the court made no findings about the incidental and beneficial use

of the water rights, necessitating that we remand to the district

court.

¶ 37 For support of Dain and Lynn’s incidental and necessary

arguments, they rely on a number of cases, including Kinoshita v.

N. Denver Bank, 508 P.2d 1264 (Colo. 1973); James v. Barker, 64

P.2d 598 (Colo. 1937); Hastings & Heyden Realty Co. v. Gest, 201 P.

37 (Colo. 1921); Shigo, LLC v. Hocker, 2014 COA 16.

¶ 38 These cases generally hold that water rights may be

appurtenant to the land (incidental) and, thus, transferred absent

any specific language in the deed

• when a court determines the intent of the parties “from all the

circumstances of the case, including the fact as to the use of

the water and whether it is necessary and essential to the

beneficial use and enjoyment of the land,” Kinoshita, 508 P.2d

18
at 1267 (quoting Hastings & Heyden Realty Co., 201 P. at 39);

see also Shigo, LLC, ¶ 13; or

• “if the presumptions arising from the circumstances of the

transaction make it appear that it was the intention of the

grantor that [the rights] should so pass,” James, 64 P.2d at

600; see also Hastings, 201 P. at 39.

Given the case law, the district court primarily focused on

Norma’s intent, as she was the grantor of the 2016 quitclaim deed.

We have previously discussed that Norma considered the

transaction to be a short-term deal and that the water rights were

never discussed. Again, without the benefit of a transcript, we

must presume the record supports the district court’s findings. See

Duran, ¶ 21.

¶ 39 As to whether the water rights are necessary for the beneficial

use and enjoyment of the 2110 property, Dain stated in his affidavit

that he used Barrett Pond to water his lawn, bushes, and shrubs

via an automatic sprinkler and that this is necessary because of the

arid climate where the 2110 property is located. Dain also stated

that he, Lynn, and their kids used Barrett Pond for recreation and

swimming.

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¶ 40 But the cases they cite all involve agricultural or irrigation

uses of the land, not recreational uses. See Kinoshita, 508 P.2d at

1265 (the owner conveyed farmland); Shigo, LLC, ¶¶ 3-6 (same);

Hastings, 201 P. at 40 (“It is also well established that without

water the land would be practically worthless for agricultural

purposes, and would have a value of only one-tenth the amount

paid to obtain its release. This fact is important as indicating the

intention to convey the water with the land . . . .”); James, 64 P.2d

at 600 (water was used for land irrigation). And we cannot find, nor

have the parties cited, authority holding that water rights used for

landscaping and recreation are necessary and incidental

appurtenances to the land so that, absent specific mention of the

water rights in a deed, they nonetheless transfer with the land.

¶ 41 And Dain and Lynn’s argument that Lynn and Norma cannot

use the well is not at issue in this case. As Dain and Lynn pointed

out, adjudication of water usage are issues exclusively determined

by a water court. Here, we are dealing with ownership of the water

rights. See Allen v. State, 2019 CO 6, ¶ 1. And because the well is

for domestic use only, Dain and Lynn could not use the well for

agricultural purposes.

20
¶ 42 Accordingly, we conclude that the water rights are not

incidental and necessary to Dain and Lynn’s beneficial use and

enjoyment of the land.

3. Infringement of Rights

¶ 43 Dain and Lynn’s final contention is that the water decree

infringes on Lynn’s rights as a joint owner of the 2110 property.

Norma and Richard contend that this argument was not made

below and is therefore unpreserved. Even assuming Lynn’s “use” of

the water in Barrett Pond and Barrett Ditch is a “right” attached to

her property ownership, we cannot find any argument to that effect

made below, and again, the transcripts were not provided for our

review. Therefore, we conclude that this argument was not raised

below, and we will not address it further. See Laleh, ¶ 8.

V. Conclusion

¶ 44 The judgment is affirmed.

JUDGE FOX and JUDGE SCHOCK concur.

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