47 Colo. 573 | Colo. | 1910
delivered the opinion of the court:
The Broad Run Investment Company, a corporation, claimed an appropriation of water for irrigation in water district No. 1, of ninety cubic feet, with a priority as of December 27, 1900, the date of the be-, ginning of work on its Trowel ditch, which was thereafter diligently completed and the water from it applied to a beneficial-use. It also claimed that the ditch was constructed, in part, to carry and utilize an additional appropriation, acquired by its grantor, of fifteen second cubic feet under what is commonly known as the Meadow Act (sec. 2268, Mills’ Ann.
As preliminary to the main discussion, we observe that several of the priorities, as fixed by the original decree of adjudication rendered in 1895, are of a date later than 'that wbicb petitioner claims as a “meadow” appropriation by way of relation. Necessarily, therefore, if a decree in its favor, as prayed for,.is granted., it would materially and injuriously affect and subordinate a number of priorities under the original decree, because it would antedate them. Tbougb objection has not been raised by the respondent that this proceeding is not the proper remedy, we notice the point for ourselves, that we may not be understood as sanctioning the practice of entertaining the statutory special proceeding, when, as here, it appears that an adjudication as to the meadow priority is invoked by one who,claims that it was not a party to the original adjudication proceeding, and when, if the decree passes, it will materially affect and interfere with the priorities of the original decree. It is true that, under sec. 2434 of the statute, permission is granted to persons who were not parties to, or who did not appear in,- the proceedings wbicb culminated in the original decree, to establish their right to the use of water by some appropriate action or suit, such as was allowed in any court of competent jurisdiction before the so-called adjudicating statutes were enacted, even tbougb a determination was sought of priorities claimed to be earlier in time than any of those established by the statutory decree. Yet, this, is not authority for saying that in the special proceeding under sec. 2421, wbicb is the one here employed, it is competent for the court to permit a suitor thus to have determined bis claim of right to such a priority. Crippen v. X.
The facts of this case are, as found by the referee, that, beginning with' the year 1881, the meadow lands of the petitioner, during ownership by its grantor, were irrigated as the result of the natural overflow of the stream on whose banks the meadows are situate, and until about the year 1886 crops of hay were grown as the result of that method of natural irrigation. Beginning about the year 1886 a number of large ditches and reservoirs were constructed, taking water from the stream, with the result that so much of its waters were diverted that the amount of the natural overflow upon this meadow was materially diminished, and to such an extent that its then owner at one time constructed a ditch through which waters from the stream were diverted in an equal quantity for its artificial irrigation. This ditch seems to have been abandoned, at least its use was discontinued, and the owner afterwards became a stockholder, or a part owner, in another ditch, to which a different priority had been awarded, and through which he irrigated his meadow. These conditions prevailed at the time
“After the lapse of four years from the time of rendering a final decree, in any water district, all parties whose interests are thereby affected shall be-deemed and held to have acquiesced in the same,: except in case of suits before them brought, and there*579 after all persons shall be forever barred from setting np any claim to priority of rights to water for irrigation in snch water district adverse or contrary to the effect of snch decree. ’ ’
The precise question thus presented for determination respecting the bar of the statute has not been directly or expressly, though, in principle, we think it has been, decided by this court. The general adjudication statutes have often been before this tribunal for consideration. They have been held to be a legitimate exercise by our general assembly of the police power of the state, and the proceeding thereby furnished is in the nature of a proceeding
in rem. — Louden Irr. Canal Co. v. Handy D. Co., 22
Colo. 102, 113. In this and other cases we have de-:
cided that, as to parties to such proceedings, the decree is res adjudicata, and unless impeached for fraud, or application for a review thereof is made by the parties within two years, the provisions of the decree are final and binding, at least as to them.—Louden Irr. Canal Co. v. Handy Bitch Co., supra; Ditch Co. v. Ditch Co., 22 Colo. 102, 115; New Mercer Ditch Co. v. Armstrong, 21 Colo. 357; Crippen v. X. Y. Irr. Co., supra,. In Canal Co. v. Loutsenhiser Ditch Co., 23 Colo. 233, it was said that a decree in such proceedings is conclusive as to the parties thereto after the expiration of two years. It was also held that, under sec. 2434, right to bring such action to establish priorities as it authorizes, within four years after a statutory adjudication has been made, may be exercised only by those who were not parties to that proceeding, or, if parties thereto, whose right of action accrues out of matters arising subsequent to the decree. See, also, Crippen case, supra. It is entirely clear that ‘ ‘ matters arising subsequent to the decree,” means claims of priority for an appropriation made subsequent to the lowest appropriation in-
We cannot sanction the claim of the petitioner here. It is that, irrespective of the question of time, one who has acquired an appropriation for his meadow lands, as the result of the natural overflow of the waters of the stream, may, when the same has become diminished in quantity, and whenever thereafter it suits his convenience, construct a ditch and have a priority awarded to date back by way of relation to his meadow appropriation, even though such priority antedates the priorities fixed by a previous statutory decree. We think Fort Lyon Canal Co. v. Arkansas Valley S. B. & Irr. L. Co., 39 Colo. 332, the opinion in which was handed down- after the briefs in this action were filed, is conclusive against petitioner. It was there held that after the lapse of four years from the time of rendering a water decree in any water district, all persons are forever barred from setting up any claim adverse to its effect, and that the bar applies to appropriators in different
The same conclusion may be reached by another process of reasoning. We may rightfully assume that in the original decree of adjudication the proper notices were given and published, which, if the statute in that respect was complied with, would bind this petitioner, the same as if he had actually appeared in, or participated in the original proceeding, since it was in the nature of a proceeding in rem, the petitioner a legal resident, and the priority which it claimed was for lands situáte in this water district. In Combs v. Farmers’ H. L. C. & R. Co., 38 Colo. 420, at page 426, it was said: “Ample provision is made for personal service of notice upon ditch owners, and for publication of notice for those who cannot thus be served, and this notice requires not only all owners of ditches and other persons interested therein, but also all persons interested as owners or consumers of water, to be present at the hearing provided for, and present proofs of their priority of right to water by appropriation.” And it was further said in that case that this statutory proceeding contemplates that there shall be an adjudication not only of the
The judgment of the district court is affirmed.
Affirmed.