In fact, the fountain is what made the thirty-odd members of the tiny Lakewood Acres Irrigation Company sit up and take notice that someone was monkeying with what they claim is their reservoir. Kenny's boats they knew about--the marina had paid $1,000 a year to lease the reservoir. "But then suddenly we see this [Oak Express] sign going in, and then the fountain," recalls Dave Williams, a member of the irrigation company. "And we said, 'Wait a minute; that's our water.'"
How attached Oak Express owner Barney Visser is to his fountain is unclear; today he wants to fill in at least part of the reservoir with dirt to build a parking lot. Trouble is, he may not own it--at least not according to the Lakewood Acres Irrigation Company.
Technically, the dispute between Lakewood Acres and Visser Real Estate--part of Barney Visser's closely held Pillow Kingdom empire--is just another local quarrel over property. But it also provides a window into a west Denver anachronism--the vast system of private irrigation systems that once brought water to the area's farms. As development has spread, many of the rights to the water have been snapped up by municipalities eager to meet their residents' growing demands. Most of the rest of the water that flows through the urban ditches is used for little more than moistening the lawns of those few homeowners fortunate enough to have a hand in the system.
That doesn't mean it's not highly coveted, however. Depending on which irrigation system you're talking about, water rights from the Denver area's urban ditches can fetch astronomical prices. The water carried by the Farmer's Highline Canal through the ritzy southwest metro area is highly valued because the canal enjoys senior water rights; in the event of a drought, Highline's owners would receive their water long after less senior systems were cut off. According to Highline superintendent Ed Ziegler, a single share in the canal recently sold for $138,000.
Most of the irrigation-ditch companies that manage these gravity-fed water systems from another era are small and are mutually owned by shareholders. No one knows for sure how many ditch companies operate in the metro area, though a surprising number remain active: Ken Peterson, a water engineer for the City of Arvada, estimates that 25 active irrigation ditches run through that city alone. And despite the urban setting and the fact that the combatants are more likely to be lawn jockeys than farmers, people can still get steamed about their water rights.
The water that eventually gets shot through Visser's fountain begins its long trip east when it flows off the Continental Divide into Clear Creek and then on to the city of Golden. Near Ford Street, by the Coors brewery, it veers through the headgates of the Agricultural Ditch Company, whose vast series of pipes and ditches directs it through the Rolling Hills Country Club, under I-70 and through the Denver Federal Center. Near Sixth Avenue and Oak Street, some of the water is diverted into a spur owned by Lakewood Acres and pools into the reservoir in front of Oak Express.
The Agricultural Ditch Company was formed in the mid-1800s to tie together a rough system of private irrigation ditches serving local farmers. In the 1940s, when the area around Lakewood High School was being subdivided into half-acre sites, the Lakewood Acres Irrigation Company incorporated to distribute the water received from Agricultural Ditch.
Each member of Lakewood Acres pays about $50 a year to maintain access to the water, which flows through their yards either in an open ditch or in pipes buried underground. Most shareholders use it for their lawns. A small number use it for the kind of agricultural projects most city dwellers can only dream about. Dave Williams says his share allows him to maintain three gardens--one of which he occasionally floods like a rice paddy--and to water two goats, which he keeps for their milk.
Members of the irrigation company have for years assumed that they also own the reservoir in front of what is now Oak Express. In the past, members have drawn from that pool of water in times of drought or tapped into it to keep the water flowing when a section of the irrigation system collapsed. In 1973 Lakewood Acres shareholders voted to erect a fence around the pond, which was kept padlocked. They have also maintained a system of gates that control the flow of water through the reservoir in addition to collecting rent from Kenny's Marina.
Visser Real Estate purchased the former Kenny's property in late 1995 and converted the Marina showroom into an Oak Express furniture store, one of six in the metro area. According to Visser's attorney, the pond came with the property. "Our position is that Lakewood Acres doesn't own the land or the reservoir," says Steven Everall.
The new owners quickly installed the large Oak Express sign to attract drivers on Sixth Avenue, a job that necessitated cutting through the chain-link fence that had been installed by Lakewood Acres and twice lowering the water level of the reservoir. Visser also began stockpiling dirt in back of his store in anticipation of filling in the pond to create more parking space.
After failing to convince local police that Visser was trespassing on their property, members of the irrigation company in August 1996 requested a temporary restraining order from a Jefferson County district judge. Before the case was heard, Visser voluntarily agreed to stop work on the area until the dispute was resolved.
That was more than a year ago. Since then, Visser, citing a handwritten real estate conveyance from December 1914, has claimed in court documents that while Lakewood Acres owns the water in the reservoir, it doesn't own the land around or under the water. So he has offered to pipe the company's water underneath his new parking lot--a proposal the ditch owners reject, in part because it would eliminate their storage capacity during dry spells.
Unfortunately for the irrigation-company owners, the actual title for the land under the reservoir is missing, so they're relying on two claims. The first is a 1973 agreement between the property owner and Lakewood Acres acknowledging the ditch company's ownership of the reservoir, a document the ditch owners say supersedes the handwritten document from 1914. The second leg of the Lakewood Acres argument rests on a fuzzier legal concept called "adverse possession," which basically would award ownership of the reservoir to the irrigation company in recognition of its long stewardship of the property.
A trial to decide whether the pond will be left as it is or turned into a parking lot has been set for this spring. And Evan Lipstein, Lakewood Acres' lawyer, says there's more at stake than a few green lawns. There's also the fact, he says, that the ditch "has become a significant part of the neighborhood culture." At a time when so many remnants from Denver's rural past are being paved over, says Lipstein, "the ditch and the reservoir are important bonds between people who live along them."
To Ken Peterson, the brewing legal dispute also signifies something else. "The water wars of the West are still going on," notes the engineer. "You take one of those ditch shareholders who goes out on a hot July day wanting to water his lawn and the ditch is dry. He'll call anybody--the city, the state, the governor--to get his water.
