27 Colo. 532 | Colo. | 1900
delivered the opinion of the court.
This is a controversy between owners of reservoirs which are used for storing water for purposes of subsequent irrigation of agricultural lands. This is the second time the case has been here. The former decision was upon a demurrer to the complaint — the opinion reported in 25 Colo. 161 — in which it was held, contrary to the ruling of the trial court, that the complaint stated a cause of action. The judgment of the district court was reversed and the cause remanded,
. In the opinion above referred to will be found a full statement of the case as made by the complaint. That statement will not now be repeated, but only so much of it given as will elucidate the points determined.
The reservoir of the appellant company is fed by a ditch taking water from the Cache La Poudre river some distance below the headgate of the feeder which supplies the reservoir of appellee water company. Between them is the headgate of a ditch owned by the Colorado Milling & Elevator Company, which diverts sixty cubic feet of water per second of time from the river for the purpose of furnishing motive power to a flouring mill owned by the milling company; and this priority is senior to any appropriation claimed by either reservoir owner. After the water diverted into the mill race performs its function of propelling the mill machinery, it has always been turned back into the natural channel of the river. In 1892, the reservoir company, going upon the stream and finding that such was the case, made its diversion from the river below the point of discharge of the mill race, constructed its reservoir, and for several years thereafter, without interruption, filled the same with water thus diverted. The water company had made an appropriation for storing water in its several reservoirs before the time the reservoir company began its work of construction upon its appliances; and had received a decree of court in proceedings properly brought for determining that question, which awarded to it a priority
It is now contended by appellant that the trial court entirely misconceived our previous decision in the case at bar; while it is the contention of appellee that that decision stated the law of the case only upon the hypothesis that the facts were as stated in the complaint and admitted by the demurrer upon the former hearing; but since, in the trial of the issues of fact had after the cause was remanded, the findings of the trial court were in favor of defendant — appellee here — it cannot be said that our former decision is the law of the case we are now considering, which, as a result of the trial of the issue of facts, presents a case radically different from that which was admitted by the demurrer, and before us, upon the former review when a hearing of the legal issue only was had. We have carefully examined the evidence, the findings and decree of the court, and the opinion which the district judge filed when the decision was given, with a view to ascertain whether the trial court followed our former decision.
The findings of fact in a narrow, but incomplete, sense, may give color to the contention of appellee, that it made the first appropriation of all the so-called winter waters for storage, and that it was upon this finding that the decree in its favor was made. But the evidence, the special findings, and the opinion of the trial court show that it was not upon this basis that the decree in its favor was rendered. It does appear from the evidence that appellee made an appropriation of some of the winter waters of the stream, before any appropriation was made by appellant; but it also clearly appears that in so diverting water, appellee always recognized, as it could only do, the priority belonging to the mill ditch of sixty cubic feet of water per second of time; and permitted enough water to flow by the headgate of its reservoir feeder and on down to the headgate of the mill ditch, which was further down the stream, to supply the full capacity of the mill race, to wit: sixty cubic feet of water per second of time, whenever the same was needed by the owner of that priority. It is true
We apprehend, as stated in our former opinion, that the real controversy is as to whether or not it is in the power of the milling company, by a temporary or permanent abandonment of its priority, to deprive appellant of its appropriation,
It appears from the record that counsel for appellant asked the trial court to declare, as a matter of law, that the milling company could not, by contract, or otherwise, relinquish or change its appropriation made for the mill race, as against the rights of appellant company, from and after the time it made its appropriation for reservoir purposes below the mouth of the tail race of the milling company; and counsel further asked the court to declare, as a matter of law, that in case the milling company should voluntarily abandon its right to use and flume the water to its mill race, the appellant company is entitled to it, notwithstanding such abandonment; and that if permanently abandoned, while the milling company might not be compelled to run the water through the mill race, nevertheless that the water should flow down the natural channel of the stream to the headgate of the feeder ditch of appellant company, without interference by appellee. In reply to this request, the district court used this language:
“ That is the whole case, that is your view of the opinion of the supreme court. I do not take that view of it at all. In my opinion the waters of. the mill race appropriation when returned to the river, by reason of the non-user on the part of the mill company, in whole or in part, may be diverted by claimants senior to the plaintiff company, in the order of the seniority. Under the facts in this case defendant storage company is entitled to divert such waters for storage purposes in its reservoirs to the extent of their decreed capacity prior in time to plaintiff company. The request will be denied.”
From this it is evident that the trial court misconceived our former decision, in which we expressly declared that in case of abandoment of the milling priority, the water thus returned to the stream does not belong to senior appropriators, the head-
The point that appellant is not entitled to relief, unless it has sustained substantial damage, is not tenable. Certainly the admitted interference by appellee with appellant’s senior right to sixty cubic feet of water, and the avowed determina
Reversed and remanded.