*1 remanding of cause for a trial, new with directions permit plaintiffs their withdraw remittitur as to damages plead they the full assert amount as such damage; to vacate order of dismissal to the Olson Manufacturing Company; proceed general to trial in harmony expressed. judg- with the views herein accordingly ment is reversed and the cause remanded with directions.
Mr. Justice Moore dissents. Stone Mr. Chief Justice Justice Bradfield Mr. participate did in the consideration of this case.
No. 16,881.
City County of Denver et al. v.
Northern Colorado Water Conservancy District
et al. 16,888.
No.
City County of Denver et al. v.
United et States al. (276 992) [2d] P.
Decided October 1954. rehearing Petitions for denied December 13, 1954. Supplemental petitions rehearing denied
January 13, 1955. *4 Mr. Mr. Glenn Leonard M. Campbell, Saunders, G. John P. Mr. Robert A. Dick, Mr. Mr. Akolt, Harold D. Mr. Mr. Milton Roberts, Keegan, J. John M. Dickson, error plaintiff City County Denver. Mr. A. Mr. F. T. W. plaintiff Henry, McHendrie, error Colorado City Springs.
Mr. William W. for plaintiff in error South Gaunt, Platte Water Users Association. *5 R; for de- William R. Mr. John Mr. Clayton, Kelly, Conservancy-
fendant error Northern Colorado Water District. Clayton for error defendants
Mr. Delaney, Frank Board. and Colorado River Water Conservation Hill Jr., Mr. John B. John B. Mr. Mr. Barnard, Barnard, for in error F. E. Yust. L. defendant Barnard, Duane Guy in error Mr. for defendant Grand V. Sternberg, Irrigation Valley Company. for defend-
Mr. Silmon Mr. Charles Smith, Holmes, Valley Association, ants error Grand Water Users Irrigation Irrigation District, Orchard Mesa and Palisade District.
En Banc. Chief Mr. Justice Stone opinion delivered Court. adjudication for
Under our Colorado statutes of water rights, proceedings brought were in Water two District adjudication rights irrigation, 36: Of for One No. adjudication rights purposes other other for irrigation. proceedings consolidated for than These were together trial in below and are considered here. the court are- River, The water involved from the Blue Slope located on the Western of the Continental stream tributary in Colorado, and a of Colorado River. Divide here for the decree of the court as We have to review trial priorities project City awarded to the water City Springs Denver and that of of Colorado and the priority refusal of Platte of South Water Slope all on the Eastern Users situate Association, proposing Continental Divide and all divert water through, Divide, also the refusal means tunnels hydro- priority Mountain Reservoir Green sought plant, been first electric which had at by the Colorado of America and later States (cid:127)United Water District. River Conservation *6 considering conflicting must claims, the Court these hyperboles of coun-
be concerned not with the oratorical partisans alarming prophecies Press, the sel, or the of in comparative opinions of but use, or our own as value argued only questions record, application facts in the the the the the rules before Court and established of adjudication respective property the law to the of of rights of stream. in the waters said adjudi- considering provisions
First, the of the decree cating project: rights the of Denver Blue River the
By proceedings us, of before its statement in the claim priority proj- of Blue River Denver asserted storage of use and for various ect, both for direct Dillon amounts To the Reser- in its several reservoirs. only, decree, which voir, was awarded a conditional was sought, full of date. chal- for the lenge amount but later No argument presented us or before concern- made concerning ing Reservoir the .the decree to Dillon other of the trial award decrees to the court to failure presented reservoirs; of Denver issues behalf in award to River diversion concern direct 1600 second feet its Blue therefor of use. was made in amount Claim March 21, 1914, as of date of condi- amount awarded therefor in of 788 decree was tional 24, June second feet as of 1946. steps summary taken
A brief from the record of the appropria- Denver connection with intended necessary River is under- of water from Blue tion presented. Denver is on East- located stand the issue early Slope Continental Divide. As ern shortage began of to be envisioned future water there supplemental supply from the need for water Slope on the Colorado River Western tributaries preliminary Blue A Divide. reconnaissance nothing year, further but River basin was made consulting appears a done 1921 when have been until possible engineer investigate employed to water July Slope. On from the water Western diversion began basin and work in the Fraser River 1921,he field during Fork the same summer did work the Williams basins, As a of his these the Wil- result work basin. projects Fork and Fraser water River diversion liams planned largely consummated, and have been were and since have been decreed virtue diver- therethrough. sion surveys preliminary
Sometime in summer purpose filing made for were on the Blue River office its tributaries. Thereafter the work was done filing engineer made in the office the state May plat proposed 31, 1923. The then filed showed bring tunnel transmountain waters from the south tributary through fork of the Blue, Swan River, *7 tributary the Continental to Jefferson Divide a of Creek, Slope. the South River, Platte on the It Eastern was by introduced in evidence Denver as A. its Exhibit investigate locating In 1926 it was determined to at a intake much lower elevation which would involve difficulty expense less for collection ditches and larger drainage Accordingly, collect from a area. survey year plat a was in made that with the filed engineer proposed directly state in for a diversion by from the Blue River a means of tunnel transmountain extending from Dillon on the Blue River to on Grant the By plan, north fork of the South River. in Platte addition waters of Blue the and its tributaries captured plan, could under earlier the there could be by diverted also from the water Ten Creek Mile of a virtue Creek short collection ditch, and of the water Snake a leading virtue of short feeder tunnel, both the plat into main transmountain tunnel. This second introduced was Denver as its Exhibit B. geophysical
Geologizing work tunnel site the through subsequent years con- disclosed obstacles to proposed, originally of this struction tunnel, second reported charge geologist in with the result again Accordingly, proposed unfavorably it was thereon. angled change plan instead of and to construct an straight-line longer. This referred a mile tunnel half geolo- to as the Montezuma tunnel. This new site was plat appears gized years no However, in the 1943 1945. engineer or of the state to have filed office been survey showing or the the date submitted evidence planned. proposed In 1941 the tunnel as so it location of large proposed channel reservoir at to construct a was upper portal at the located confluence tunnel, Adoption Mile and Blue, Ten Snake. plan collec- new would the need this eliminate during provide storage flood ditches; tion tunnels stage, change supply. It necessitated stabilize approximately proposed location of tunnel twenty thousand in elevation and about three feet large point reser- feet of intake. five hundred proрosed designated so as the Dillon Reservoir voir plan plat showing the for was filed in the office and a plat engineer This 14, November 1942. state peculiar commenced on features that work was stated to storage It 1, therein on October 1941. was introduced D. as Denver’s Exhibit 1942, later, sometime November
Still between filing proceedings, and Denver’s claim time in these July plan proposed for the tunnel was Denver’s changed again and it was decided to its size still reduce capacity from 1600 second feet to 788 second and In the latter feet.
year of a second construction tunnel of 788 *8 actually begun being prose- capacity and is still feet trial a and the court awarded to it conditional cuted, capacity. amount of its decree in the Colorado The River Water Conservation Dis protested awarding trict others decree and 384 here as-
whatever to Denver’s Blue River ground sign awarded on the error decree it supply, adequate a Denver now has an water larger quan- given a conditional decree not be should tity expect put reasonably than water can in the rec- beneficial use. uncontradicted evidence supply adequate at ord discloses that had Denver hearing River water the time of without the Blue sought. consequent growth here As to further its divergent need, estimates, future all neces- there were sarily knowledge. a without actual We cannot hold that city than for water more is entitled to decree be- others yond appropriator its own a However, has needs. originally effect reasonable time which to use as well his intended complete originally as his means intended sought appropriations of diversion, and a when are growing city, regard given reasonably should be anticipated requirements. Real Van Tassel & Estate City Cheyenne, Wyo. Co. v. 54 333, Livestock 49 P. (2d) (2d) 906; Denver Sheriff, v. Colo. P. Particularly considering is true in 836. this claims for Taussig conditional decrees. As was said in v. Moffat (2d) long Co., Tunnel 106 Colo. 106 P. 363: “So applied has no water been use, beneficial we are con- unperfected right. cerned with an inchoate and an beneficially applied designated When water is to a property right use, it becomes decree then certainty. must on the take a elements definiteness prob- now Such not before us. situation Some may properly ques- lems raised determined when the entering tion of final decree is trial court before they presented specifically are when here considera- tion.” While the witnesses as to Denver’s future water requirements agreement, were there was substan- finding support tial evidence of future need for water from the Blue River within a reasonable time. amply City’s rapid subsequent This is confirmed growth.
385 contrary, the seeks Denver, on modification the increasing by project, the both decree as to its herein argument awarding priorities. is Its earlier amount and Ap- grounds, to “I. Denver wit: based on four asserted Enlarged propriated Blue River from the in Water Appropriation Amounts-Rea- Each in its in . Time sonably Required II. Denver has Meet its Needs. Diligence Development of the Blue Due in Exercised the System. Could III. Denver Law- River Unit of its Water Design System fully Modify Diversion Without the of its Priority. En- Decretal Order Should be IV. A Loss Relating the of the United Claim States tered Conservancy District.” The Water Northern Colorado ground same that asserted the Colorado last as is be considered in District will Water Conservation grounds, substance, other The assert that connection. project priority back Denver’s claim date part upon ground part to 1927 to 1921 and diligence development in the has due been there change project Blue those dates and no such River since dating plan prevent such back. separately specifically nor not asserted While points argued, Denver contends court should its that the Blue River a total have awarded condi although feet, 1600 second decree for its water is tional through to be and Carried tunnel which is to diverted carrying capacity feet, have a final 788 second trial amount which was decreed it court. Admittedly, plan present is no intent there or a tun capacity than more nel of to divert feet from second is it asserted that the but amount di stream, temporarily stored in the channel verted is to be reser forebay at tunnel entrance until voir the stream so that the water retained flow decreases there can be through. As stated in the brief, carried Denver “So in plan final for Denver’s Blue River unit smaller operating capacity during bore full tunnel at about five bigger, months serves the same function as bore tun- necessity working nel far -below which would capacity except during weeks times, at all сrest early accomplishes forebay no summer run-off. storage, merely true flow water feeds direct through operating at a rate.” mountain uniform “forebay” *10 the
Counsel fail to mention that
planned
early
to hold
water from the
summer runoff
the
during
later
order to maintain
uniform
the
the
flow
proposed
season,
the
is in fact
Dillon reservoir to be
in the
head-
constructed
channel of
River at the
the Blue
gate
proposed
sought
Denver
and
tunnel, and that
storage
was
full
a
awarded
to it
amount
decree
in the
of its
capacity.
“forebay”
words,
other
which “ac-
complishes
storage”
no true
is to hold the direct
but
flow
through
water
it
tunnel,
until
can
taken
be
is at
same time to be the
which is to hold
“reservoir”
water
storage”
capacity.
in “true
full
One
its
cannot add
cup,
may
water to a full
not have a second decree
for water from
same
to be held
the same
source
at
already
time in the same reservoir to which a decree
has
capacity.
been awarded to
full
elementary
Further,
rule is
that the first
appropriation
an
essential of
is
actual diversion of
apply
the water with
intent to
a
“It
beneficial use.
repeatedly
jurisdiction
has been
decided in this
that an
appropriation
an
consists of
actual* diversion of water
from
stream,
a natural
followed within a reasonable time
by
application
thereafter
use.”
thereof to some beneficial
Supply
Windsor Reservoir and Canal
v. Lake
Co.
Ditch
gain
44
Co.,
Colo.
Denver’s in a contention decreased flow through justifies stream the later season there decree capacity from of a water excess of of its ground temporarily holding ditch is based on the through early part water in channel reservoir storage. season for use in the later season is true *11 Virtually That contention is not sound. all streams in decreasing through have Colorado such flow season, purpose most reservoirs are constructed for the holding early during the excess flow for use the later “It season. is to difficult understand how the words ‘temporarily impound,’ applied storage to of water agricultural purposes, a to in reservoir be used later for anything add to nomenclature of the law of water. ‘Temporary’ lasting only; opposed means for a time it is permanent, impounded any storage to but all water put only temporarily; there is to be reservoir otherwise necessity capture its from stream must of defeat Handy purpose law of beneficial user.” Ditch Co. Irrigation Greeley Co., & 197, v. Loveland 86 Colo. 280 Pac. 481. recognizes appropria
The two statute classes of irrigation, diverting for directly one for ditches tions used water to be storage
from and one stream, for the 388 v. subsequently. District Holbrook water, to be used Lyon To the amount Pac. 574.
Fort 269 Co., 174, 84 Colo. directly to to be diverted that water when available is sought. To a use must be use, direct decree use, later amount it is to held in reservoir that storage sought. stored decree Where water is must be reservoir headed such in a channel a ditch reservoir, deplete right by to of direct use decree has virtue no may storage, properly from the take water such but by amount decree reservoir virtue of such subject direct to such from sources the current inflow use decree the ditch. awarding to Denver’s Blue no error
There use a volume limited the total for direct River question proposed capacity tunnel. The of its diversion city, right store water diverted diversion, after of a argued. is not here domestic use questions are Denver’s raisеd More serious challenge priority date awarded Blue River disputed, project in the law is not decree. basic give (1) priority appropriation shall that wit: using right the water for better as between those (2) purpose; here same that as to the involved a municipal corporation has no status from that different party proceeding; of an other individual although appropriation complete (3) until right may still, relate back use, actual diversion open step giving the time when first was taken (Sieber, et al., to secure it v. et notice intent Frink al. Model 901; Co., 2 Pac. Baca Co. v. 80 Colo. Colo. 358); (4) to relate back is Pac. condi prosecuted thereafter was construction tional that diligence, reasonable conditional further that there purpose up “a was then fixed definite take *12 (Fruitland Irrigation carry through” Co. v. Kruem it ling, Wyoming 161; 162 Pac. 160, Colorado, 62 Colo. v. 419); (5), questions that 259 U. diligence and of reasonable S. purpose questions of fixed and
and definite are by to court from fact determined trial evidence. appropri yet completed no
While Denver as has any Blue, here seeks ation from it water whatever project a conditional have Blue River awarded to its filing establishing by the dates of decree back relation plats priority it A and its B as the dates ultimately will Determination contends it of such date of be entitled. priority depend upon date must first step “the when first was taken connection carry purpose,” it and fixed definite existence upon prosecution through, with reason its second, diligence. able by plats
In as Exhibits each of the filed Denver by B commenced A, it is recited work was D, that survey day March, 1914. its statement on 21st date. claim, Denver asserts the same commencement appears However, from the with- submitted, evidence entirely dispute on out the 1914 was based that date surveys year Public made in reconnaissance any construction, not followed Utilities Commission Denver that date and in its now abandons briefs River to the Blue claims conditional decree project July 4, 1921, for 1200 second feet being 1927, as of former cubic feet October begun survey on a date when it is contended that was project planned but two feet, some divert 1200second any plat years filing date thereof, and the latter before showing filing plat being B, Exhibit date of of its plan to divert 1600second feet. survey, any no even of work,
There evidence that is begun July project 1921, on the Blue River was on prior claim for time the summer 1922. The at survey solely on the fact that 1921 date based Fork and on that date Denver’s Williams started projects that those two and the contention Fraser River projects in fact a Blue River constitute and the consequently single irrigation project, *13 step taken, was determination of the date the first when diligence and also in the of reasonable determination projects since such considered date, the should three be single project. as a step determining
In the date “when first survey taken,” was made on the Fraser River or on the Williams Fork would of no evidence of in itself be appropriate Certainly tent to water from the Blue River. survey supplying such a in a far distant basin water to another stream would constitute no notice to another appropriator filing plat of such intent. The of a method of diversion from the Fraser or Williams Fork appropriate would no be evidence of intent from the Blue or such intent. Therefore, notice there nothing support priority contention July should priority be dated as of most, 1921. At project only' the Blue River could date back step time when the first taken was in construction of a project on the Blue River. determining diligence, reasonable also, we ground holding, urged by
find no as Denver, that the project, project River Blue the Williams Fork and Fraser project single project River are each units of a so that projects the construction expenses work on those and the incurred part thereon can be considered as of the con struction project. of the Blue River Denver’s claim for River by survey, Blue plat was made filing entirely separate from those of its Fraser and Wil projects. priority liams Fork It seeks to water from an entirely separate stream, not even confluent with the Fraser except River or Williams Fork to the extent that ultimately tributary each is of the Colorado River. It seeks water entirely be separate diverted from an drainage surveyed planned basin. It after those projects. directly It affects other claimants who are protestants directly but here proj affected those through ects. It entirely is to be separate carried — being conduit through Fraser River diverted through Jones Fork Williams Tunnel Moffat planned, carried be as Blue, now Tunnel, Pass through Conti- bored to be tunnel in Montezuma Its many others. to the south miles nental Divide adjudicated sought en- rights here water tirely separate are projects. has It of those from *14 Fork Fraser River and Williams relation to the less even system projects Platte water Denver’s South than to and channel same river it will the with which share the Blue relation between fact, the reservoirs. projects project their these other is that and River ultimately may filtration rest in common several waters exchange plants, by means of and that and concentration prior supplying may cooperatively they be used filling storage be such as would or reservoirs any independent probable of other the case in appropriation gives right. priority bet- of which the The priority on a stream our constitution is ter under any diligence project, construc- and in than on a rather dating priority permit Blue River on the back of tion relating promoting diligence Blue to and must be appears. appropriation. here No such relation River diligence prosecution and the Fraser of Therefore, imputed projects Blue Fork cannot Williams City project. of Denver However, the fact that River was prises engaged or other enter- of these the construction together
may properly all be considered ability existing of as to facilities other evidence diligence. city of reasonable determination of issue project by Considering itself: Blue River contemplated appropria plan 1922 of Denver’s first River, a south fork Swan from the of of water tion tributary of a Blue means tunnel River, of the tributary of Jefferson Creek, would take the water tributary Tarryal of South in turn Creek, which seventy-six required plan miles of That Platte River. steep slopes along flumes and tunnels collection headgate bring water to terrain over difficult 392
of the tunnel. There is no evidence main transmountain pro- any work actual whatever construction portal posed project. upper proposed The tunnel its many portal subsequent was plans. miles from the under against 10,322
Its altitude was feet as altitude approximately subsequent plans. 8,800 under feet length approximately half its tunnel was four and a compared approximately twenty-four miles with that of subsequent plans. miles under It could collect water supply from less than half area of the available to presently proposed plat tunnel. The of that 1923 appropriate showed claim to feet, second while the plat feet, shows claim for 1600second virtue enlargement of the former as “a claim, but relocation project.” appropriation No ever awarded was adjudication it filed for behalf, claim thought upon of its construction abandoned the final adoption plan. Plainly, of a later at time of the sur- vey filing plat plan in 1923, said first purpose up there carry nowas fixed and take definite through; diligence *15 there no it in its construc- priority but an tion, entire abandonment. The of a water right may survey to be dated back the date of or fil- ing plat proposal of diversion which has been aban- very plan. doned favor of in another different Hol- Irrigation Lyon brook Ft. District v. Co., 174, 84 Colo. 269 Rocky 574; Pac. Colorado Land & Water Ford Co., Co. v. App. Wyoming 3 580; Colo. 34 545, Pac. Colorado, v. 259 part U.S. 419. Therefore no of Denver’s claim can be tied plat. or dated to its back 1923 step attempted next
The in of the solution Blue problem Engi- River 1926, was taken sometime in when by study simple neer Bull was sent Denver to a more collecting carrying ap- method of than waters peared plan presented from Exhibit A. An ex- survey year by tended in that followed office work preparation resulted of Denver’s B, Exhibit which was engineer in the filed office of the state 19, October
393 priority its Blue River that the Denver contends 1927. such least to the date of he dated back at should filing. denied that trial court contention. presented to the trial court themselves
Two issues pur- (1) definite in 1927 a fixed and therein. Was there carry plan by pose Exhibit B and shown to take the pros- (2) plan through completion? If was that so, to diligence? support In order Denver’s to ecuted due necessary find both in to date, claim to it was the affirmative. pur the first issue of fixed and definite
As to pose: 16, Constitution, section article Our Colorado give provides “priority appropriation shall requires right.” Appropriation diversion actual better legal fiction in relation back is a and use. The doctrine derоgation for the of claim Constitution benefit projects larger and should more ants under difficult Irrigation strictly Kruem v. construed. Fruitland Co. ling, 161. It not sufficient that 162 Pac. Colo. In order from the Blue. there was an to divert intent a definite must have been divert date back such intent capacity of and at ditch volume as evidenced headgate point so location of the evidenced definite appropriators other could know nature extent the claim. map (Sec- filing statute that a under our
If we assume chapter C.S.A.) constitutes notice 90, ’35 27-32, tions appropriators court, and that other as as evidence in well surplusage, filing provisions still as are to the time only prima maps therein, facie are, declared such as util- such construction and to to make evidence intent map and statement. as are shown ize such record overcome there Was evidence map? prima think was, We there facie evidence plan volume and as fixed both diversion.
A. to volume: As map of a tunnel 1927 showed Denver’s and statement thereby timely capacity prima if feet of 1600 second facie its maximum of intent divert that volume water. testimony But the showed contradiction that without planned being as later as now constructed tunnel only capacity Moreover, has of there 788 second feet. agreement the 18th as of was in evidence day executed March, of Denver and South 1943, between agreed Water Denver Platte Users Association wherein part as follows: subject “1. The of are matter this facilities which comprise right rights parties contract all the or both of physical acquired hereto to or use structures constructed September on or after or the diversion stor- age legal Blue River, waters title which structures stands or will stand in the name of parties agreement, either of to this and also the rights (without regard initiation) or date parties to or divert use such Blue River water, which proportion respec- be diversion shall ownerships parties paragraph tive as defined in hereof. Ownership proportional of the facilities shall “2. parties agree- financial contributions of the to this
ment to the construction or creation of the facilities made * * September on or after 27, 1942, *. * * * party “4. prosecute In event either shall such development, рarty right, the other have if shall years expenditure, exercised within five of to con- fifty per any tribute not to exceed cent amount ex- pended party the other on account of the construction, acquisition, any unit of the facilities, or the facili- * * electing party whole, at ties the choice of the agreement convincing Such would be evidence appropriate Denver had no fixed intent to for its users capacity even the full of the 788 tunnel, second-foot but capacity, half that and that or all of remain- par- ing capacity might the tunnel be owned other irrigation ties for use in the of farms far from Denver *17 original and far and declared outside intent appropriator. point plan
B. As to the and of diversion: applica- The trial court had before it evidence City County tion and of Denver under date petitioned December Denver wherein Fed- Emergency eral Administration of Public Works for an application $100,000.00. allotment of That recited, inter alia, need of the South Platte basin for additional immediately water, the existence the Blue River west of the Continental so that a tunnel could Divide, bring surveys constructed to therefrom, two already made of alternative means of diversion and possibility constructing such transmountain at tunnel a number of other and locations other elevations. It possibility thorough study further recited the that a necessity advisability would show for, or at least compensating Slope, of, a reservoir on the Western and particularly called attention to the Green Mountain Res- many ervoir site. It further recited the studies and “concerning possibility diverting. available data Blue River water into the South watershed”; Platte requested study proposed further of such diversion and investigations survey “that these and studies include upper both the site and lower site the transmountain tunnel also the consideration of four or five addi- tional routes for the tunnel.” Therein Denver asked that proposed survey “(e) comparison should include possible of the different routes for the transmountain including study tunnel, possible of variations in pumping higher method, such as the water to a elevation advantage so as to (f) obtain the of a tunnel; shorter costs of relative various routes of the transmountain tun- constructing nel and the various methods of the same.” Thеre was before the court also much evidence that in study by 1938, 1939 and 1941, had been there the Board of Water Commissioners of Denver and the United States expense, Bureau of as to the value, Reclamation confer- numerous diversion; of Blue River method representatives and dis- Bureau were held ences plans diversion, methods of had of different cussion surveys therefor; made were additional appropriated such sur- funds for Bureau Reclamation agreed veys to share Denver and, 31, 1941, on December appropriated expense surveys $100,000.00 *18 up engineering set was board of review therefor; that consisting Board of Water from the 1941, in of members Users of Platte Water Denver, the South Commissioners and Colorado Association, Bureau of Reclamation the possible various Board, Water to check the Conservation that best; tunnel and route was sites determine which investigated methods said board different at least three might diverted and routes which River water Blue much and the one of which was Platte, carried to South proposed by B, Exhibit the same as the Denver’s route February board 1946, and under date of that 16, that report made Board of Water Com- President, the City County missioners, of and others inter- Denver, finding engineering, con- ested, that there were definite operation advantages the struction, and administration in recommending Montezuma that a detailed route, project report prepared. that route be of provided plan Denver’s Exhibit B shown points for the at three of diversion: one on Blue the tunnel; Creek, one on Ten Mile with a ditch intake the carry the thence to the Blue, therefrom to and one on from which a branch intake, River, Snake tunnel There would take water to main tunnel. changed plan straight dog-leg after, the was from a to a plan again changed At tunnel. some later was time the building large provide of a reservoir Dillon at the confluence near the Blue with the Ten Mile and single point Snake, with a new of diversion captured the reservoir waters more than a mile which points proposed Appar below former of diversion. ently plan changed again about the same was time, the capacity tunnel from a the size of the reduce capacity feet, second of 788 second feet to portion small of the tunnel now сonstructed is capacity. During period smaller the entire from 1927 money substantially 1946, the work done and all the all spent by proj- in connection Blue River Denver with its investigation exploratory ect or work work Slope reservoirs were connection Eastern dependent any plan one for diversion even on Blue and similar River This evidence before water. presented support trial court conten- substantial protestants tion plan that Denver had no and definite fixed point report prior and no definite diversion sup- and recommendation of said board in 1946, and ported the decree of trial court consistent therewith. diligence: question, that of to the second
As summary, A evidence showed that Exhibit plan been abandoned of 1923 has without construc- following filing B whatever; tion plan Exhibit no actual excavation work evidence proposed appeared tunnel with its connection until years when a cut was made and a later, some fifteen small place *19 exploratory tunnel was driven about 400 a feet at portal intended to the be west to ascertain the then ground. proposed the location of the of condition changed part portal 'and a the has since been of excava- performed other has caved No work was on the in. tion ground July portal until 1946 when work east of at the Engineer Denver’s Chief the was testified tunnel started. actual construction that “That was the first work.” It ap- out of a total had 2850 feet distance of been driven twenty-four period proximately miles the from 1946 hearing. In to the date of addition to the Den- tunnel, plan approved at ver’s of as last time of the diversion the large included the Dillon Reservoir on the Blue trial plat intake, River at of which was filed in but 1942, begun no construction before 1946. satisfying requirement diligence, of
As reasonable filing plat 1927, that
Denver showed after triangulation 1931-2, staked in the tunnel was line geological survey These for studies. monuments installed report surveys brought about an unfavorable straight platted a that and a recommendation tunnel way dog-leg by of Montezuma. tunnel be constructed geologized until not the new was staked But line period from a 1944 and 1945. Over 1943, sometime survey that was 1928to Denver’s witnesses testified 1948, way rights acquired Forks for the Two of made Reservoir, located on but reservoir is to that application for in the and, Sоuth Platte River right as shown regulation way, planned river, of that of was for development. storage power It flood waters and direct has no connection with use diversion essential River; from Blue even its construction would give any plan an- diversion or Blue River indicate other any plan. appropriator of such Between notice surveys power lines to 1928 and 1932 were made for carry generated by energy proposed to be the electrical granted way project. the twenty-three was for the years period ten tunnel, mile but appears step no taken its construction. It toward throughout period from 1936to 1941efforts were City made induce United States Bureau of project, to build the but without success. Reclamation There was no evidence of effort Denver year prior finance itself but of efforts to United States to do so. induce support To that this work was its contention sufficient satisfy diligence, requirements reasonable Den- Taussig ver Tunnel & Co., v. W. D. 106 Colo. cites Moffat surveys, (2d) 384, 106 P. it was held 363, wherein preparation maps, acquiring way op- obtaining carriage contract for tions through drilling clearing Tunnel, holes, Moffat of test *20 along proposed of timber lines and other ditch similar satisfy requirement work was sufficient to the of reason- leading diligence of a ditch in construction able seeking party diver- However, Moffat there Tunnel. apparently company private sion of the a water was apparently dating for a back was limited resources. years, period of this decision and the of less than five holding finding that court, the trial Court affirmed the diligence; asked to are here, we there was due while great city, part expenditures of a hold that on the such capacity, upon its financial without shown limitation nearly twenty years spread period would out over a require trial decision of court us to reverse the say expenditures of reasonable that such were evidence diligence as a matter of law. irrigation, says: great
Kinney, “Prob- work on his diligence given ably word best definition early rendering opinion in an Lewis, J.,C. steady applica- ‘the there defined as Nevada case. It is any effort to accom- kind, constant tion to business doing undertaking.’ plish any of an act or ‘It is series delay except expedition, possible with no of acts with аll ” Kinney may as be incident to work itself.’ such Irrigation Rights, §735. and Water Yol. requires authorizing conditional decrees
Our statute proof support offer of his claimant shall that each ** * appear has claimant claim and “if it shall financing appropriation prosecuted his claims enterprise dili- of his reasonable and construction determining gence” enter decree shall court right. priority period twenty during undisputed a about
It begun years, had not even construc- Denver actual and had made no effort whatever of its tion financing appears it, but record, from towards years attempt, after nine of in- but laudible fruitless United States Reclamation Service induce action, to joint of Denver and the South for the use finance others have Meanwhile Users Association. Platte Water long diligently put part of this water worked *21 400
to actual show such use. record before us does not “steady application” conclusive evidence of busi- constructing project ness of ef- or of such “constant accomplish” require fort to it as to us to hold appro- trial court erred priation, date in refusal'to back Denver’s contrary, prior to the loss of such On the users. in order to claim, sustain Denver’s we should have city great great establish as a law of a or a Colorado that corporation, by filing plat of a of a water diversion plan surveys explora- and the fitful continuance tory operations, paralyze development could all a period years’ river for a basin of nineteen without ex- cavating single shovel full of dirt actual construction taking any step and without bond or towards issue other financing plan carrying purpose; of its own for out its years that for nineteen no farmer could build a ditch to develop' city industry his farm and no other or could construct for use of water that area without facing city corpor- loss of their water when and if plat actually ation which filed the should construct its project. This cannot do. we considering
Second, the claim of the South Platte Water Users Association: irrigation company is a
Said mutual com- claimant prised users from the South Platte water River and its large over a area. tributaries sought In its statement of Association claim, decree proj- feet to transmountain second diversion by original construction ect virtue of date of October storage priorities totaling 27, and for 1942, same date by original acre 246,481 feet virtue construction storage Canyon Reservoir, the Cheesman Eleven-Mile Reservoir, 'all and Antero of which Reservoir reservoirs Slope located on the Eastern are Divide. Claimant showing makes no construction work whatever in connection with claimed said or even of original survey. plat by aWhile was filed it on Novem- showing general proposed ber course itsof so-called tunnel and its and collection ditch collection by to be the water “Webster Tunnel” slope on the to Grant Dillon on west from diverted dispute appears slope, from testi- without eastern engineer employed mony plat by an that the was made surveys previ- City upon of Denver and was based engineers ously in the basin him and other made appears further Fork It the Blue and Williams Rivers. proposed facilities would collect while the collection that water from other sources *22 sought
than to be included that by project, claimant’s collection Denver Blue River in its only planned Dillon, to are conduct water facilities by they are which Tunnel, and the so-called Webster through proposed the Continental be diverted thence Denver in fact Montezuma tunnel which Divide, is constructing. proposes Claimant to construct and is now enlarge but no intent to said tunnel association claims City merely “joint Denver. for use” thereof with the capacity proposed to Since tunnel is have already sought Denver has condi- feet, 788 second this claim of thereto, tional for 1600 second feet decree by appropriation of 3300 second feet the South further ap- makes total claim for Water Users Association Platte through propriation more than six times the tunnel of its capacity for in behalf of Denver and its total associate joint joint for claim for use of use. The basis this their agreement is the Denver and the tunnel between written provides quoted from, Association hereinbefore proportional ownership for of facilities use parties. contributions financial (or elementary go being that decrees ditch It might tunnel) be that under owner, and not to it existing agreement the Association could claim some finally any Denver’s Blue share in awarded to decree by project, or the construction of the collec- River by bring proposed the Association to water tion facilities might water be obtained from new additional sources, supply any decree and decreed as an additional source ultimately here But no claim is awarded to the tunnel. — only for decree sources, made a second for additional name for more tunnel under another to Montezuma than four times already capacity, has been when it its capacity. decree its full awarded conditional beyond appears dispute that no work Further, survey either on the done, or construction has been money storage appears to facilities, or 'and no use direct spent financ thereon have been ing and no effort made only steps by the sole taken Association, having (1) procuring been: behalf of claimant The surveys filing prior plat upon for other of a based agreement employers; (2) entering into an urges whereby, City as the Association of Denver upon done Denver tunnel or brief, its work to the benefit of “would redound diversion structure diligence part part as a the Association completing toward a diversion Association right.”. under claim could not do otherwise
On such a record the trial court deny any than to the Association. decree provisions adjudi- considering Next, decree cating Springs project: the Colorado
By city sought claim, of that conditional its statement diverting from the to water decrees its several ditches all 1907. as of date of October Conditional River, Blue sought reservoirs decrees were also to its several filled prior therefrom, all as of to 1948. dates by the trial decree was awarded court to Conditional prayed in the amounts each of and said ditches reservoirs of May for, 13, 1948, but all of date instead City having given sought. decrees for the dates been prayed as of the date over for, full amounts when it took project, the sole here is construction of the issue the' predecessors or in and title had whether not its interest beginnings appropriation prosecuted and made such of diligence with such as to work of construction entitle
403 City relating City to back a date before decrees began its work of construction. sought
While the claim relation back to statements of City of date conten- October now abandons tion for September and relation to date of that date seeks back except Mayflower reservoir
27, 1927, for the which claims date as of the date awarded to it. sought by Such relation back to the 1927 date virtue Galloway of fact that James testified that witness D. began survey getting on that date he of of means Slope from the Blue River the Eastern as a survey filing map result of said was and claim made engineer July in the office 16, 1929, state appears Springs’ as Colorado Exhibit A. testified He proposal during he worked on this 1928and that survey dug seventy- he and a hired man staked the top five feet of ditch of Hoosier on a Pass, con- templated portion of the ditch, which thereafter was plan. abandoned in favor of a tunnel In he 1930 made' survey maps accompany application further rights way. the General Land Office for In 1931 he surveys map, made further and an amended made con- tacts with the General Land Office, and cleared one right way feet hundred for the In 1932 he ditch. right way cleared another hundred feet of and made stream measurements, in 1933 he still cleared an- way, through other hundred and, feet stream those years gathered made he data, measurements and completed report sup- until 1935 he his on the water ply, geology project. and costs of 1936 and “mostly contacting get he people was different them put up money for the construction” and at “water studies” studies as to best location. From tunnel 1933 until 1948 no work whatever him done project. his associates on the
Galloway’s plat, Springs’ first Colorado A, Exhibit preliminary map filed is entitled “The *24 Pipe showing Continental-Hoosier Ditch and Line,” con- templated carrying capacity for which feet of 200 second Henry- the lands of “to be used on made, claim the was lyn Platte Irrigation from the South and taken District, previ- headgate, present on their as shown at their River Springs’ plat, filing Colorado ous 4752.” His second No. “Map of the entitled, in 1929, also filed B, Exhibit assertedly System,” and is Diversion Continental-Hoosier Agricultural purposes Eastern on “for Slope Domestic the Galloway testified the Divide.” Continental survey largely that he initiative; on his own his was filings trying to finance worked to find someone project; interested the first that he construction thought put up Henrylyn Irrigation he District, which repaid filing that the fee was afterwards fee, and proj- take over concluded not to district when it Henrylyn Irrigation near located ect. was District thirty Den- northeast Hudson, Colorado, some miles lay Colo- far from ver. It in the South Platte River basin Springs, basin. rado is in the Arkansas River which Galloway, at- him, thereafter or others associated Irrigation tempted and Reser- succeeding Twin Lakes interest Valley. Company Not Arkansas voir in the they attempted interest the water board there, City Burlington County Ditch, Denver, then the turn, then, Platte, on the South located east of Denver Stanley High English Reservoir Com- Ditch, Line Englewood Lake- pany, and Aurora and and the cities as until so far Platte. Not all the South wood, on way Springs City appears, approached of Colorado was the project. In November in the or interested rights, any, by purchase year, acquired if year project. Galloway The next Gal- and others in engineer, City loway employed maps May prepared and state- 13, 1948, final and, evidencing plan upon con- claim ments of City begun in has then behalf of the struction was pursued. since been Galloway
Summarizing asso- labors of his *25 years twenty-one appears period ciates, in the of it that they survey, they when from 1927,when started City Springs, of their sold to the the extent of Colorado seventy-five digging feet actual was of construction ultimately part aban- of on of line was ditch a clearing hundred of doned, and the of three feet subsequent way, prior year of all 1936. employ- period years, his of twelve until sale to and by appar- Springs, ment associates Colorado he and his ently paid no further atten- did work whatever and no scheme of diversion. to their transmountain tion period attempt long in- account for In an this diligence construction, it action and show evidence urged George during the that one H. Y. was active years period and had some last six that connection Galloway George plat, and his associates. filed a largely duplicate Galloway, a of that of in 1942. He independent filing an in the that this was testified hope made Henrylyn again he could interest District use around Hudson and in construction Keenesburg. filing plat, Springs’ His and Ex- Colorado entitled, was “East-West Transmountain Diver- C, hibit was for a sion,” claim total to the made several irrigation, feet, of 125 second “for ditches domestic and power purposes in the Platte South River in Colo- Basin independent survey that he had no rado.” admitted He plat Galloway’s survey was on his based appear by in the abstract of 1929. title offered There Springs unexplained purported convey- Colorado certain George, Galloway ances to statements of claims and filings George’s subsequent filing, Galloway made gave George option purchase testified that unsegre- same, which was not fulfilled. In addition to gated expenses surveying in connection with reservoirs, expenditures by George substantial testified to trip City purpose of a to New York consisted for the financing promoting purchase by Henrylyn payment District, and of some $5,000 ditch and in- the tunnel but he admitted that construction, tunnel Galloway; contemplated was not the tunnel volved company mining on an old the work rather was done purchased then intended tunnel which he had through subse- mountain. That intent continue quently tell location abandoned. He could not appearing lay where it with reference to the tunnels any part plats and made no claim that constituted system being Springs or was built Colorado any service to it. *26 have the which we court,
Under facts before the attempted necessary briefly, for it it was outline determine, reasonable first, whether there had been diligence by Galloway As 1927. and his from associates already construction, we have noted, actual surveying during period other than more than twenty years, seventy-five ditch abandoned feet of clearing right way hundred and the for three parties feet of The evidence shows inter that the ditch. up continuing attempts to ested until 1937 were their companies project. interest various Coun ditch their City Springs ap sel of an of Colorado insist that if given propriator by filing has notice of his intention maps beginning and statements or actual work in ground construction on in sufficient to his indicate appropriate, tention he is entitled to relate date appropriation provided step, of his back the first he diligence proceeds efforts reasonable his with suf ficient to that he has not abandoned his demonstrate complete appropriation. intention cannot We agree may procrastinate with contention. One dilatory, entirely yet be without excuse or reason, with project. any requirement out to abandon intent The authorizing of the statute conditional decrees is shall -not have rather that abandoned, claimant but prosecuted appropriation he has financing his claims of enterprise of his construction with reason diligence. hardly insig- able It can be contended that the ground Gallo- nificant work of construction George way vague or labors of his associates an have re- connection tunnel would abandoned diligence. quired justified finding or of due why convincing another reason There is Springs’ right the date Colorado be dated back to cannot beginning Galloway George work or the why work, and cannot their to sell efforts their scheme diligence. determining Appropriation considered requires of water both In order to diversion and use. complete appropriation, actual there must be an tak ing of water for án beneficial use. order to initiate appropriation, purpose by must be there an intent and appropriator, actually put and to to take (section chapter it beneficial use. statute C.S.A.) requires appear that he make shall ’35 prosecuted court and referee that he “has his claims appropriation financing and the and construction of his * * enterprise diligence Here, with reasonable Galloway George any ap- neither nor had “claim of propriation”; procure neither or owned intended to irrigation any power plant power for land use. represented any municipality Neither for domestic use. “enterprise” “financing Neither had an and construc- *27 attempted tion.” Neither to finance or intended to build system they ditches, reservoirs and tunnel which platted. They give pretense did token work to of a right they might Galloway sell. testified: Mr. you price project “Q. people, Did to of these your in it? A. No, interest we wanted them to construct George it.” “Q. Mr. purpose testified: The whole develop project purpose to eventually for the dis- posing right, of it yes, to someone I else? think that A. is They promotors who could utilize water.” were and — speculators appropriators. not A claim for mere speculative purposes by parties having expectation no actually constructing applying themselves of works and purpose givеs to useful the waters some them no good against subsequent appropriations faith. made in Company, 271; 15 Cal. v. Lake Water Weaver Eureka page County Cal. Kidd, & Co. Nevada S. C. v. 314. D. Taussig & City Tunnel relies v. W. The Moffat (2d) support claim P. to 384, 106 106 Colo.
Co., private corporation there was to back. Claimant date authority corporate the declared to construct and with surveyed and reservoirs to construct ditches intent way right procured platted It had its behalf. and through South Tunnel to the for the Moffat its waters proposed them for to divert which it Platte River from negotiations engaged land It sale to owners. was companies Boulder Creek and individuals in ditch Valley water it was sale Platte South carry must, there declared to them. rule divert always, applied. to which as limited to the facts supporting a mere It speculators, claim that cannot be construed intending appropriate themselves representing carry use or others water to a beneficial survey, intending, by plat and token so can construction appropriators pay compel subsequent them bona fide acquire purchasing their claims order tribute right guaranteed our Constitution. them why Springs’ reason Colorado
Still further right seeks, is that back, dated as it both cannot be George project Galloway project were incom projects. Galloway plete Both and abandoned plats hope selling George in the the scheme filed their Henrylyn Platte, but in both District on South plan hope and that cases was abandoned. failed subsequent attempts all their abandoned were Likewise others. The fact Colorado their to sell Springs scheme pre other facilities which had used ditches or projects surveyed viously thereafter abandoned been give conception prior of its would it no beginning back to the abandoned to date Irrigation Lyon projects. District v. Holbrook Ft. Com- *28 pany, Wyoming Colorado, v. 574; 84 Colo. 269 Pac. 174, Sup. 419, 259 U. Ct. 552. S. denying considering provisions
Next, decree adjudication to Green Mountain Reservoir: January 19, the United States of America 1944,
On Conservancy filed Water District Northern Colorado petition adjudication proceeding water below their Reservoir, Mountain and statement of claim for Green hydroelectric plants No. 5 and No. and Elliott Creek 6, appropriation, Canal. addition to statements as to authority and direction of the said statement recited Attorney therefor; that General further recited provisions pursuance America, United States of pursuant of the Reclamation Docu- Act to Senate Seventy-fifth Congress, ment 80, No. session, first process constructing Colorado-Big Thompson rec- power project appropriated lamation and had tributary from the Blue River and its Elliott Creek for irrigation and other uses, and that Green Mountain hydroelectric plants Reservoir and said Creek Elliott parts completed; Canal and almost are said further recited Northern Colorado Water Con- servancy organized by District was virtue of the laws purpose contracting the the United States Colorado for State with of America construction of said project, part, of which Green Mountain Reservoir ais and had entered into contract the United States of agreed part pay America, whereunder it had cost of construction thereof. peti- States,
Thereafter United counsel, pro- tioned for and obtained consolidation of the two ceedings adjudication, petitioned and further for and hearing. July obtained continuance of Then, on day hearing set for of witnesses, United pro- with the court a notice, States filed entitled in the ceeding, thereby withdrew from said case the claims of America, the United States of theretofore filed on behalf of Bureau itself, its of Reclamation and For-
410 estry Department Agriculture, Service, of and that the attorney Conservancy the for Northern Colorado Water joined District in said withdrawal.
The Colorado District River Water then Conservation promptly adjudication filed its of for of statement claim reciting Reservoir, Green Mountain that beneficiary claimant district was under Senate Docu- Congress, Seventy-fifth that the Green 80, and ment Mountain Reservoir power plant and constructed for of and and users the benefit claimant other claimants said the and its in Western from Colorado River .tributaries made and Colorado, and claim was for the use benefit the persons. such of all sup- hearing, in introduced evidence district
At the disputed. port showing has not been It included claim, of its and the of the reservoir need the construction by landowners of water therefrom actual use for and the August 9, 1937, that the Act of and district, within authorizing of the Green Moun- construction Stat. provided be that should con- Reservoir, tain plan described Senate in accordance structed Seventy-fifth Congress; that said Docu- No. Document required evidence, which was introduced ment, capacity of 152,000 with a reservoir be constructed said be 52,000 of which “shall available water, acre-feet replacement water which Colorado, western by usable there if withheld or diverted be would primarily project,” 100,000 acre-feet be stored said purposes power available, released with- for “be charge, existing irrigation supply out domestic including Valley appropriations water, the Grand chargeable supply project, all losses reclamation delivery 52,000 water, and for said acre-feet purposes irrigation and in further use domestic brought to be under cultivation in of lands thereafter appears It from said Colorado.” also Document western the'right of said from use No. 80 any obligation payment free from shall be reservoir replacement Slope and as a users the Western through tunnel from for use taken the river waters Slope Divide. of the Continental the Eastern promptly upon appearing from form Thereafter, tentatively court for con- submitted decree River of claimants that said claim of Colorado sideration denied, Grand District was to Water Conservation Irriga- Valley Mesa Association, Water Users Orchard Irrigation tion District filed their District and Palisade joint petition seeking reopen order the court proceeding permit them to file their own statement *30 adopt of claim or that of the Colorado River Water Con- adopt servation and to District, evidence introduced as to the said Green Mountain Reservoir introduce n further evidence concerning reciting, same, inter Valley alia, said that Grand Water Users Association organized by Valley was water users under the Grand project, Reclamation pursuant constructed the United States authority to the Reclamation Act, with acquire irrigation water for of the lands of share- its irrigation acquire holders and to construct and works generate power engage opera- sell and to in the Valley project, tion of Grand Reclamation and was obligated by contraсt with United States distribute project by water to the consumers under said its canal, priorities right; to which had been awarded certain of Irrigation that the Orchard Mesa District and Palisade Irrigation organized pursuant District, to Colorado law, large acreages irrigated contained land and owned rights canals with decreed water from the Colorado during River for use on the lands in said districts; that years year 1945 to 1948 and the was there not supply sufficient in the water Colorado River to rights priority petitioners; needs and up that to make deficiency, there were released from the waters Mountain Reservoir, stored Green in Water District large particularly No. amounts of water as set out in petition, beneficially said all which had been used for irrigation generation power lands be- and the
longing and in said association users under said personally petitioners served not districts; were that they proceedings were so far as and, with notice of Con- River Water informed, that the Colorado believed appearing their servation behalf District was necessary steps was all to' obtain authorized take petitioners; adjudicating decree petitioners recently the claim of advised that had been by this court had been denied said conservation district entirety that such denial and had been advised in might that said district does
have been due to fact appeared It was water users. water, use but Green Mountain Reservoir was recited further Bureau of Reclamation the United States constructed provisions Document the terms said Senate under acre-feet for, 52,000 as contracted 80; that, therein No. replace- said reservoir stored of the water petitioners purposes for the use and other water ment 100,000 Colorado and acre-feet stored users in Western power purposes, provision primarily for that it be required to maintain the flow Colorado released irrigation appropriations including supply River waters used through by petitioners the works of Valley petitioners and that Reclamation Grand *31 beneficially supplemental used said waters and had will require them future. in the recited the
Petitioners further their information that physical America, States of as owner of the works United appeared Mountain Reservoir, and filed the Green procеedings and then withdrew from claim herein said an action in the United Court for and instituted States rights to establish and those the of Colorado its District juris- consumers; of its that if said latter court denied rights may their thereof, claimants have sub- diction junior are in to fact to theirs. ordinated they prayed permission appear to Wherefore and file proceeding adopt claim the evidence their in by Dis- Conservation River Water submitted Colorado and offer ad- Reservoir trict as to Mountain the Green support petition, in their both ditional evidence irrigation adjudication ad- of water for irrigation. judication purposes other than of water promptly after announcement of decree Thereafter, Valley Irrigation peti- Company court, Grand trial adopt reopen evidence,' case and and offer to tioned reciting authority operate certain canal its to therein irrigation systems and furnish stockholders water for irrigated acres of land domestic 30,000 than more existing sup- shortage decrees of water its use; the necessity ply to assure needs; its for stored water building filling decrees; of Green senior its purpose supplying for the such Mountain Reservoir prior of such water and the demand for and use needs, irrigators system. Petitioner made under claimant’s Valley petition of Grand Water further as in recitals Users Association. that the evidence sub- decree,
In its the court found respect to of the Colorado the claim River mitted Green Water Conservation District decree justify was insufficient court Mountain Reservoir entering favor, claim decree in and its was by Denver and Colorado denied. were filed Motions petition Valley Springs deny Grand and dismiss Irrigation Association, Users Orchard Mesa Water Dis- Irrigation petition trict and the District and Palisade Company, argument Valley Irrigation after Grand in both court sustained said motions cases. District here as- Water Conservation Colorado River any priority by the trial court of in the denial serts error power plant. Reservoir the Green Mountain We by said district, submitted above think the evidence require storage de- brief, recited was sufficient statement of claim therefor reservoir, if cree to properly the court. before Conservancy District, Water
The Northern Colorado *32 although in behalf of had its claim said withdrawn power plant, had clаim therefor reservoir and no tacitly acknowledges remaining court, before the continuing jurisdiction by appearing court’s here er- party, supporting findings ror as a with a brief yet court, the trial the same asserts that at time therein jurisdiction lacked court to enter decree as to rights water Green Reservoir for the the reason Mountain property reservoir is of the
that said jurisdiction had United States and the state court enter no against judgment the United States as owner of against those for whom it is trustee rights, and that “officers of the United water States were authority rights of to submit the United without States against jurisdiction proceedings priority in these right.” of water rights adjudicated
Water cannot fact be as to only. part They claimants are relative both as to time is and amount. None certain unless all are deter immunity mined. If the contention Government many adjudication proceedings true, then all the water rights in Colorado and elsewhere in which the United States have submitted been its officers and adjudicated by have been the court have resulted de crees void to as United States of all other therefore uncer rights parties. tain as to If this conten true, tion be is landowner who so fortunate as to taxpayers’ money through have use of other the Rec building lamation Bureau his reservoir or ditch is exempt statutory proceedings adjudication from our rights, of his paralyzed and the arm of state function, in this vital at least until such as the time offi superior Federal cers fit Government see in their bring wisdom to action in the Federal Court. certainty, aOf the United States has claim no owner of the water of the Green Mountain Reser- Oregon said, voir. The court Power Co. v. California Co., Portland Cement Beaver 295 S. 142: U.
415 government public the domain, “As the owner the of dispose possessed power water there- land and the of separately. together, dispose v. Howell of or to them the construction of Johnson, 89 Fed. 558. The fair Congress provision now under is that intended review land should for future the to establish the rule that the non-navigable patented separately; all be and that for use of the thereon should reserved the waters be public under and territories named: the laws the states * * * following the is that act of “What we hold non-navigable part then before, if not all waters publici juris, subject public the the domain became ** designated plenary states, control the owned The fact that the Government the reser rights gave or claim to water accru it no the voir ing by title storage thereby therein; it be virtue of water only a for the and owners whose came priority carrier trustee adjudicated. Fox,
was to
As said
Ickes v.
government
“Although the
diverted,
U.
82:
stored
S.
petitioner
water,
the
the
and
contention
distributed
thereby ownership
water-rights
of the
or
be
water
the
is not well founded.
vested in
United States
came
govern
Appropriation
use of
made not for
the
was
the
Act, for
under
Reclamation
the
ment, but,
the
use
by the
law
owners; terms of the
and of the
the land
water-rights
already
to, the
contract
referred
became
wholly
property
land owners,
the
of the
distinct from
right
government
irrigation
property
Murphy
Compare
v.
296 Fed.
Kerr,
536, 544,
works.
government
simply
was and remained
a car
545. The
(ibid.),
water
with the
rier
distributor
stipulated
sums
contracts as reim
to receive
cost of construction
annual
for the
bursement
charges
operation and
for
maintenance
works.”
Accordingly,
held therein
it was
United States
indispensable party
against
to a suit
interfering
Secretary of
Interior
operating
project.
rights in
a reclamation
adjudication
within
of water
adjudication
made,
is
not to
Colorado,
State of
which the
such,
but
or reservoir to
users
priority
ditch
by corporation,
ownership
is
is
decreed. Where
company, or
it be a mutual
or reservoir
whether
a
ditch
separate
company,
properly
carrier
claim is
made
company
behalf of the stockholders
other users
represents.
of the water
it
for this
The reasons
change
rule are that the number
consumers
under
might
impracticable
a ditch
all
make
of them
parties,
company
be made
ditch
priority
therefore
obligated
to file claim for
as the
trustee for
*34
Farmers Independent
and
stockholders
Ditch
consumers.
Agricultural
Co.,
v.
Ditch
22
444;
Co.
Colo.
45
513,
Pac.
Canal
v. Loutsenhizer
Co.,
Montrose
233,
Co.
Ditch
23 Colo.
Rocky
532;
48 Pac.
Randall v.
Ford Ditch
29
Co.,
Colo. 430,
Under the of 'the Act, Reclamation duty Secretary of the of the Interior in behalf of the proceed conformity United States in with state laws. 2 of Section the Reclamation Act 1902, 17, June provides: nothing “That this Act shall in be construed affecting any way or intended or to affect to in inter- any Territory fere relating with the laws of or State appropriation, the control, use, or distribution of water irrigation, any used acquired in or vested there- Secretary carrying under, Interior, of the in out provisions proceed conformity this Act, shall nothing any way with such laws, herein shall in any right any affect State or of the Federal Govern- any ment appropriator, or of landowner, or user of water in, or from to, interstate stream or the waters there- * * Wyoming, Wyo- Nebraska v. 295 U. 40, where S. ming ground Secretary moved to dismiss on the that the indispensable of the party, an Interior was the court alleges, said: “The bill and we know as a law, matter of [citing Act of 17, 1902, June c. §8, 32 390; Stat. agents, Secretary his §383] Tit. U.S.C. supple- acting by authority Act and of the Reclamation mentary permits priorities legislation, must obtain Wyoming in the for the from the water State use irrigation private appropriator same as a or manner district formed under state law.” Wyoming, opinion
In the in Nebraska v. U. S. final 589, the court have then a direction Con- said: “We gress Secretary proceed in con- the Interior formity appropriating for irri- state laws compliance gation purposes. We have a with that direc- procedure to that landowners Pursuant individual tion. rights, appropriators have of the water become being United States the storer and the carrier.” pro of the United States in this interest ceeding being a that of carrier or behalf trustee in sought water, title which is to be of the owners sovereign immunity government adjudicated, as a As be extended the water users. said United cannot repeated 338, 347, U. S. Beebe, 127 States v. Telephone Co., 167 224: Bell U. S. “We States United v. opinion a the Government is mere that.when are purpose complainant suit, as formal in right protecting any public serting any public or in merely property, but terest, title, to form conduit person litigation through private can one conduct *35 private person, equity against a court another of will administering equities from the exist not be restrained by any parties exemption ing between real the the designed protection rights for the Government The mere alone. use of name the States United private of a cannot benefit suitor extend its suit the sovereign government private immunity said as a whereby escape scrutiny he can avоid and suitor, pleaded equity against into matters him a court of party; stop examining by the other nor from court deciding according principles the case to the into private governing equity in like cases between courts litigants.” unnecessary attempt
However, think for us to we as trustee of the determine whether United States federal owners of water project, under a reclamation invitum us, situated those now before can in by adjudication be concluded in the court. That state does not here exist. Under direction of the situation Attorney voluntarily ap- General, the United States adjudication proceeding, peared in this Northern Conservancy under District, Colorado Water con- tract United States constructed Green voluntarily joined Reservoir, Mountain therein. Such authority Attorney action was within the General, right “That United absent statute. States have a bring attorney by their suit courts of the several protect prop- states to their contracts and enforce their erty special statutory open without sanction is not Supp. Jacobs, doubt.” United States F. v. 189. Such depend July does not on the 10, 1952, statute immunity of which seems to waive the the United States proceedings jurisdiction and consent inde- s.uch pendent voluntary appearance by Attorney Gen- eral.
Voluntary appearance the United States in existing seeking equivalent suit, relief, affirmative bringing subjects to the of a suit and United States jurisdiction. Guaranty to the In court’s United States v. (2d) judgment Trust Co. New 76 F. York, 747, beneficiary spendthrift sought creditor of the of a trust supplementary proceedings to recover in from the an payable beneficiary. nual income United holding unpaid appeared, claim States income taxes asserting Surrogate claim therefor, also and the held precluded by exemption its lien under the state subsequent brought by law. case the United Court, States Federal court held that recitals Surrogate’s appear- order were sufficient to show
419 government defense the on behalf of the anee judicata good. Thekla, v. In States of res United steamship, in chartered to 266 U. where S. barque possession the States, collided with the United steamship Thekla, the the owners of the libelled Thekla, at- owner cross bill and the United States whose filed against tempted Thekla, a claim the “without file submitting jurisdiction” The tо the court. itself against and the court found United States trial United States through Supreme J.: Holmes, Court said, Court to assert a States comes into United “When position private of a so far takes suitor claim it agree justice may by implication be done re- legal liability subject gard matter. absence of to the sovereignty its would but for be liable a case where in justice against destroy the claim it. does paramount question would concerns what When against libelled the United a vessel States claims vessel the moral hands, in other were * * * recognized. such The libel a case is claimant in imports pay account, which an a bill offer to like against party bring- if the balance it should turn out * * * ing is no bill. It is said that statute there accepted liability. joined Government this It acceptance suit, that carried with it the in the liability may the courts decide be reason- whatever ably act.” to that incident point, in in United v. American Ditch
Closer States Supp. Ass’n, F. United. States intervened a adjudication priorities the Idaho suit court. brought concerning a suit Federal Court said rights, said: the court judicata applies priorities order “That res by the United as well as all of the waters States user parties suits in court is clear. To other the state property protect United has all its States persons, may or in sue courts state own *37 by ren- the decree tribunals, and of course concluded is persons [Citing cases.] dered even as are. Bryan
“Its the suit the decree intervention in of by begun, a to ad- in a that in suit essence suit it judicate priorities are water, or of user of all order ranged actors, and it is the record. immaterial in how [*] [*] [*] submitting jurisdiction “Of its own volition to of the by plaintiff the decree; courts of the Idaho, is bound unsatisfactory may and, be, however is too it decree any party, late States, for the United as it is for hope that choice, abandon forum of of more and, its result, favorable resort this tribunal.” jurisdiction having pro court state ceeding having voluntarily ap United States peared, jurisdiction. we think that court retains still Assuming have Government could withdrawn parties after other issue therefrom had made assert ing request attempt appears. claims, no or so do voluntarily having after Counsel, claim filed a in behalf having sundry of the United States and filed motions in merely proceeding, served notice on the court thаt “hereby it withdraws from the above entitled case the claims of the United States of America, heretofore filed itself, behalf of its Bureau of and For Reclamation estry Department Agriculture,” Service, and an attorney nounced the counsel was authorized Conservancy Northern Colorado Water District “to joins advise Court that the said District in this with drawal.” That notice was not and could con not be request or sidered as notice of withdrawal appearance parties, of but as the withdrawal pleading, leaving their the United States the North Conservancy ern Colorado Water District as still ad mittedly parties proceeding, but without claim position filed and to file new and substitute statement they of claim if so desired. Stanley, (2d) plaintiff
In O’Connor sought v. 54 F. against thereafter estate establish claim County dismissal and with- Court a filed written petition of an answer as claim, drawal well petition court another. The and claim of filed to the of the so-called withdrawal said: “As to the effect proceedings, plaintiffs from the administration instrument, on this was entered observed that no order appearance purport and it not withdraw does plaintiffs said think it was ineffectual court, we jurisdiction, deprive either of sub- court plaintiffs, ap- ject-matter persons their or of having pearance withdrawn, and the entire been judicial being approval proceeding sanction, without *38 apparently and parties.” notice to the other interested without States or Northern
Whether
United
necessary
Conservancy
awas
Colorado
District
Water
adjudication proceeding
party
re
to
is not
issue
this
quiring
is that both volun
determination.
record
tarily
parties
such,
are
thereto. As
it
became and now
steps
protect
duty
necessary
to
their
to take all
was
rights
Rocky
water. Randall v.
of the consumers of the
Having
430,
Mr. Justice Holland, Mr. from dissent the decision as to the Justice Knauss priority City amount and date awarded Den- ver.
Mr. Justice Moore dissenting. agree generally expressed by
I with the views Mr. opinion Chief Stone in the Justice written him, ex- cept disposition concerning for the which he makes City County claim of the of Denver. The case is of importance require my sufficient a statement of con- study, though they careful even clusions, reached after appear opinion. dissenting the form of a must depends upon of Denver’s claims Detérmination three *39 propositions: main First: As of what date did Denver rights? During period water initiate its Second: what diligence thereafter did Denver exercise reasonable to- perfection right? ward of the initiated water Third: appropriate? What amount water did Denver by parties Under the contentions made the fol- lowing pertinent questions (a) of law are raised: Can a right prior relate water back ato date time physical by the first work thereon which would, appearance, give location and notice of an intention to having appropriate water to those an interest in the (b) claimant what can a To extent waters involved? change plan development without his water (c) amounting change relinquishment to a of his claim? May to show a claimant of water offer evidence system part in- claimed of an interrelated the water is volving rights is wоrk on various and, so, other water if system parts of to be considered in such interrelated determining diligence com- with which each of being ponents system in the de- water is veloped? (d) appropriator for direct Can the of water temporarily immediate detain such water use being operational purposes his without such detention “storage,” classed as and, so, if to what extent? my upon briefly questions
I will state views as possible in the order above mentioned. Question.
First right prior a date Can a water relate back to by physical would, work thereon which time the its location first give appearance, notice an intention appropriate having water to an interest those waters involved? question
This should be answered the affirmative. Physical appropriation, on a work water which would put others on natural notice that water from a water being, course was be, about to diverted beneficial clearly may one method which all interested use is right. put It be on notice the initiation of a water is years, method, not the exclusive however. recent especially respect projects with con- magnitude, the more usual method been siderable has making- filing Engineer. office of State necessity, physical activity relating first to the the Of going upon the act of of a water creation ground physical examine what is to be done. Such project might in the case of a small manifestation, be immediately up followed of con- commencement and the works, struction of diversion together, all taken activities, ample appropriate evidence of the intent to *40 424 put potential appropriators
which would other on in- quiry. pointed
As this
Benesch,
Court
out in DeHaas v.
116
(2d)
181
344,
P.
such
carried
453,
work,
Colo.
when
completion by
application
use,
of water to beneficial
right dating
results in the creation of a water
back to
necessity
filing any
the first work, without the
for ever
map
engineer
or statement in the office of
state
or
supra,
the clerk and recorder.
In DeHaas
Benesch,
v.
nothing
ap-
there was
to indicate that the work of the
propriator
any particular
right
was attached to
claim of
commingled
for the
water,
water was
with the waters
appropriations
of other
and carried in the same ditch.
appropriation
Yet, we
held
the true
there
test of
appliсation
was the successful
of the water to beneficial
appearance
use
accomplish-
and not the
the means
ing
application.
physical
giving
ap
This Court has held that
work
pearance
appropriation
on the
start
creation of an
adequate
not
did
constitute
evidence of such a start
good
Irrigation
not
where
faith. Fruitland
Co. v.
Kruemling, 62
Colo.
Reasonable in the creation of a project adequate planning diversion and use demands step>. survey the first ap- Initiation field has had the proval step court, of this as the first from which a water right may properly Taussig be dated. v. Tunnel Moffat (2d) survey Co., 106 Colo. P. 363. Such a field might might appearance, not indicate, na- proposed appropriation. ture or extent of the might It appear survey even to be a for a water yet, good if all, at made in faith up and followed *41 step, and con- diligence, the first constitute due sequently would project. beginning of the the would date greatly advan- the circumstances, it is these Under provided re- tage public means be some the of early surveys. meaning as 1881 cording As of such the filing the of of work provision a record made for was engineer. surveys of the state the office in such destroy early effect far the even so as to went statute survey right by the if of a water of commencement survey of record with had not been made record sixty days engineer of commencement within the state dropped penalty amenda- This was in the of the work. tory the reason that of 1911 for obvious Acts 1903 and appearing required as sec- law, now if all the work performed, chapter it be 90, C.S.A., ’35 were to tion impossible of state be office the would engineer to have it the sixty days of commencement in
within magnitude. The statute itself of of a work case filing, preliminary requires recognizes but a this, and penalty comply. again It follows without for failure lost a diversion is not that work on water apрropriator not does, because what he does would-be appear ground appropriation, to be work on does thereof office because he not file the record in the sixty days. engineer fact, if the within of state appearances departs it is not lost to from work quote part appropriator I as as of his effort. follows supra: opinion Benesch, in DeHaas v. “Whether from in- accordance constructed with were or not ditches * * * * * * filings maps not of and statement appropriation.” the substance penalty no failure to file attaches
If the statute prescribed map time, a not within and statement a especially pointed impose one, since, court to for this supra: “The Benesch, statute further DeHaas v. out nothing provides therein contained shall be con- having rights prior injury those of those strued to the prevent proper a ad- or so construed as to claimants, existing judication in accordance laws governing adjudications.” such Question.
Second change To what extent can a water his claimant of plan amounting development change without that relinquishment his claim? question As Ben- will seen from the in DeHaas be v. supra, changes esch, are some can made there which plan development of a con- will relinquishment project. stitute One criterion problem for determination of this was used Supreme Wyoming United States v. Court the case changes planned Colorado, S. U. where had to do with the determination of “whether” the would-be *42 proceed appropriator at would all with diversion project. changes distinguished Such are to be those from go which rather to selection the most economical or employed accomplishment means effective to be for the concerning of a diversion and water, use of which there already ais fixed and definite intention to take. Once proceed project, has been decision made to with the continuing investigations changes simply are evi- diligence accomplish great- dence of to endeavor good public, at a minimum est of cost to the not aban- project. donment adopted regard.
This Court has a liberal rule in this Taussig supra, adjudica- In the tion case, at the time proceedings purp&se place neither the nor of use of ultimately proposed the water to diverted was known. be pointed out, As we there before a final can decree be these entered uncertainties must been have eliminated. say, right That to completed, is before the could be existing plan adjudica- of construction at the time of the be tion would have to modified so as to include making means of use beneficial of the water involved. preclude a not Such situation does the rendition of a relinquishment right. or work a conditional decree pointed Taussig fact, as we out in the case, a condi- may necessary “reason- tional decree to furnish that be project. financing private able assurance” essential why public reason are entitled We see no funds equal assurance. question
The under cannot be answered discussion applicable terms must to all controversies. The facts govern examining each The individual case. basis for facts, under the law of Colorado as announced years, may this Court include the over well follow- ing: (a) appropriator’s a fixed acts should evidence and definite intention to take a fixed amount of water application (b) change plan, to a use. A beneficial purpose a lack of or which shows indicates fixed general without a fixed determination desire support appropriation, desire, fulfill the would not (c) Changes apparent undertaken intent improve costly or make more or less efficient the whole regarded be undertaken, work to should natu- diligence prudent ral of a man rather than the want constancy prosecution undertaking. pertinent principles
Within these three I think abundantly that, clear at least from and after the 19th day City County October, Denver change plan develop- made no in its the water relinquishment claimed, which would amount to a plan purpose upon appropriate then fixed feet second of water. Question.
Third *43 May water a claimant evidence show that to of offer part system claimed is in- the water interrelated of rights, volving and, so, other water is work various on if system parts such to be considered interrelated determining diligence with which each com- ponent rights system being developed? in the water is. question
This must be answerеd the affirmative. respect development to a With of water to irri- gate single piece through single a land a ditch- to of. through headgate, which is diverted water one it would diligence reference could be shown be obvious that component parts: any, to all, work on or of the three carrying laterals. ditch, or distribution dam, diversion including complex, several As the works become more variety supply, spread uses, and a sources of purposes, wider county irrigation project may lines, cross juris- irrigation or lines, district division different adjudicating dictional lines for water involved. any point appear there is at which a It does not that large longer system parts no becomes so that its way part to each in such a that work on one relate other diligence completion may respect not constitute may including parts. other It of the well whole single entity may holdings have so extensive that that many case, are unrelated others. In such a
of them holding work on one would not work on an constitute holding. unrelated appears,
It test therefore, that of the extent part system may properly which work one of a water purpose determining for the relate another due diligence, parts is whether work relate to a integrated intimately enough single purpose prog- part bearing upon part. a direct ress on one has another really considering are is What we whether or not the reasonably work done within limits of what is customary enterprise be considered as to an unified single management impairment under and in which any part directly impair remaining parts, tends part directly of one which construction contributes to comprised parts. the whole which is other the evidence Much of which was admitted, and that erroneously excluded, established fact city sys- has Denver one interrelated water should have been tem which considered a so whole in question diligence city far as the of reasonable going forward with the Blue River con- diversion is Even without full cerned. delineation fact which might presented been have had the trial re- court not *44 only stricted evidence to the Blue River alone, unit the concerning the evidence in a record Denver’s efforts shows continuing good accomplish ap- the faith endeavor to propriation for which de- she now seeks a conditional Arguments pro cree. the counsel, or con, cannot take place of evidence. majority opinion gives only lip
The to the service proposition diligence city that in the matter of going activity forward Blue diversion, with the River development system in the of other arms of should appears majority be opinion considered. This in the following language: diligence “Therefore, prosecution projects of the Fraser and Williams Fork imputed projects. cannot be to city However, the Blue River engaged the fact that of Denver was in the projects may properly construction of other these together existing considered with other evidence as to ability city facilities and in determination of the diligence.” By language issue of reasonable this majority opinion pertinent brushed off most and undis- puted concerning well as evidence, as facts which this judicial knowledge, concerning desperate Court has early years speedy need, in 1930 decade, supply city, heavy in the increases and upon city completion developments demands of other related works for the diversion water from tributary majority streams to the Colorado river. opinion any comments that: “There was no evidence project prior year effort Denver to finance only but efforts to induce the United States to every do so.” Unmentioned fact, citizen living knows, that in then well 1929 the whole nation lay prostrate depression; public trembled that the empty; years that for treasuries were thereafter at- tempt large undertaking upon to finance such the local folly; been level would have sheer and that hope for resources sufficient to warrant start at con- backing struction was to seek the financial of the United pri- public years business, all both In those States. *45 only Washington from total for rescue vate, looked collapse. approach finan-
At about the to the time when another expected problem might reasonably cial have been II for sev- succeed, World War broke out and thereafter years people productive energies were eral the of all the concentrated on war effort. Men and materials were any development not to kind, be had for of this possibly Just as as the conflict ended could wait. soon and war demands construction of the tunnel be- relaxed, despite gan, inadequate financing disappoint- and, city gone ments, Thus, has with forward the work. although majority opinion in that, declares deter- mining 'diligence part city, “may on the of the this Court emergency consider” other activities of substantial city water, the “together to meet demands of residents for its existing all
with other as to facilities evidence ability city” go forward Blue River very apparent opinion diversion, it is that the fails to give any thought to those circum- serious facts and my To clear, stances. mind it as a law, is matter undisputed under the facts shown record and pertinent judicially Court, from other facts known this city diligent has been to divert efforts majority opinion, River, water from Blue and that the contrary, patently . erroneous. is appears From an of the whole examination record it respect that Denver, with to its Blue River has might reasonably expected done what been have similarly city In Denver 1939, Sheriff, situated. v. (2d) this 105 Colo. 96 P. Court alia: said, inter highest speculation prudence but the “It on the city appropriations part, to obtain of water that satisfy resulting from will needs a normal increase population period a reasonable within of time.” With metropolitan population now at about these 600,000 years ago prophetic. seem words fifteen the Sheriff sup- furnishing adequate of an case we also said: “The managerial judg- people requires ply of 350,000 water to ever-changing problem.” This is an ment and involves today, population condi- no the increased less true approach chal- serious tion, and furnishes the one seeking lenge good city water faith of the supply involved here. Question.
Fourth appropriator Can the direct imme- opera- temporarily detain such his diate use water for being purposes such detention classed as tional without “storage,” and, so, extent? to what if brings question a new us to a consideration of This legal problem involved somewhat novel in Denver’s way question Den- claim. in another is: Can Stated *46 equivalent proposed ver a for the substitute mechanical 1600 second feet tunnel? the decisions of this Court it has been estab-
Under right lished that one who owns the to>divert water may lawfully direct and immediate not divert water use right storing purpose at such for the it for use under some indefinite future time. Under our law owner right given right of a water does have the divert a continuously, quantity of but when circum- water application can stances are such that make beneficial he right a does not need to use. When water owner right gives water, divert; his him no but the might water he be entitled to if needed it must which he appropriators be allowed to flow to other do need who against right originally storing rule it. Hence on a appropriated for immediate and direct The trial use. court limited Denver’s diversion to an amount which through a tunnel cur- can be diverted of the size it is rently drilling, 788 second feet. filing map, “B,” is
Denver’s which its Exhibit con- representation as sixth “The tains it: method of (for contemplated tunnel) construction first is to heading a and then drive economic dimensions to en- 432
large and line the tunnel full Denver’s testi- size.” mony enlarge- engineering standpoint from is that an accomplished ment of the tunnel can the substitu- be equivalent, forebay tion of a a mechanical to wit: temporarily impound size sufficient the difference be- appropriated 1600 tween second feet and the 788 present carry, feet, second which the tunnel will until lessening of the runoff in Blue River and its tribu- flow, at Dillon leás than taries affords 788 second feet of gradually forebay would after lose its con- testimony tents. Denver’s was that such a mechanical if equivalent prohibited against because of our law stor- ing appropriated for use, direct and immediate forebay dropped the idea of the reservoir or would city enlarge the tunnel stated in would Exhibit testimony saving “B.” The was $10,000,000 that plan. made could be under the substitute We must there- fore examine the circumstances to ascertain or whether proposal contemplates operating not the a lawful deten- storage, principles tion unlawful in view point discussed under the fourth above. testimony, proposed appropriation
Under the Denver’s is for 1600 second There is feet. no evidence whatsoever second feet awarded the trial court is By confining correct. the amount of water decreed ignored simply court feet, second the trial the evi- building present that Denver dence the tunnel as step a 1600 first toward second foot diversion, increasing were two alternate methods of there capacity from 788 feet to second 1600 second feet, one *47 forebay, of which was and the other was a Dillon the use of reservoir as a physical enlargement of the 788 second feet tunnel. plan City my is conviction that
It and Coun- ty of Denver accumulation for the of water the Dillon during peak flows, the season reservoir quent with subse- permissible by at rate withdrawal a tunnel capacity, against storage does not violate rule ,
433 numerous has on. held flow of water. This Court direct impoundment diverted of ditch water that the occasions irrigation upon for direct into a canal the ditch’s decree obtaining independent cannot be made the basis Irriga- storage Greeley separate right. & Loveland Huppe, tion Pac. 535, 60 155 386. Co. v. Colo. right denying flow water to store direct
The cases
They
irrigation
in which
are cases
all involve
uses.
irrigation
right
later
decreed
for direct
seeks
owner of a
through
con
such
is
ditch,
water
utilize the
veyed,
for the
a feeder to
obtain
as
a reservoir
right
priority
as
a
the same
date
that
reservoir
Greeley Irrigation
Land&
New Loveland &
ditch.
Supply
Co.,
Co.
Ditch
Consolidated Home
& Reservoir
v.
27
Reservoir & Canal Co.
525,
366;
Colo.
62 Pac. Windsor
Supply
729;
v. Lake
Ditch
44 Colo.
Pac.
Co.,
98
214,
Finley
Irrigation
234,
v. Cache La Poudre
44
Co., Colo.
Greeley
Irrigation
Huppe,
98
173;
Pac.
& Loveland
Co. v.
injunction
involving
60
535,
Colo.
None mentioned involves gigantic project proposed by uses such as under at Denver Denver. the case bar seeks to divert 1600 c.f.s. from Blue River-and and trans- its tributaries through port the Continental Divide means capacity a tunnel which has a of 788 Water c.f.s. through system diverted collection will be accumu- lated in the Dillon reservoir and allowed to flow from permissible capacity. aat rate under the tunnel operation reason for this method cost of a that the *48 carry tunnel 1600 c.f.s. some in excess $10,000,000 is of the cost of the Dillon Reservoir of the smaller tunnel. by
This is not a case in which watеr covered a direct irrigation right sought is to be stored for use future priority relating date with the for such back to the de- priority right. irrigation creed date Rather direct adjudication city a which, this is case in suit, an permitting a seeks conditional decree the diversion quantity municipal pur- use aof defined of water for poses. impoundment proposed this water adversely reservoir will Dillon affect other water users because there no is will be increase in by quantity water, time, measured volume and city annually which the had a tunnel would be entitled to divert if (Seven capacity of 1600 c.f.s. Greeley Lakes Reservoir Co. v. New Loveland & I. & L. 485). Colo. 93 Pac. As there Co., 40 will be no in- quantity annual in the total of water taken crease over might by be a that which taken tunnel with 1600 c.f.s. why capacity, no there reason is Denver should be re- quired expend $10,000,000.00 additional order to satisfy applied a rule of law heretofore in cases involv- irrigation ing altogether of lands facts were present from in the dissimilar those at bar. case This eyes practical Court will not close its considerations. City Unquestionably the of Denver would have the appropriate per the 1600 cubic feet second of capacity. construction of a tunnel of that objective ground op- This could be attained with no position by expenditure of an additional $10,000,- money. people’s 000.00 of the If same result can be operational obtained the substitution of mechanical equivalent larger I tunnel am a loss to at under- why upon taxpayers stand burden the increased required. analysis should the last the result would appropriators same be the and the other would jeopardized. in no wise be ap-
It no answer to the above to assert that Denver plied storage impound- for and was awarded decree ing water at the Dillon *49 “One cannot reservoir, that, cup, may add water to a full a second de- have cree for water from the same source to be held at the same time in same reservoir to which a decree al- ready capacity.” has been awarded to its full This state- quoted majority opinion plausible ment from the enough substantially present but it fails the whole picture. certainly cup can One most have a full of water subject application which is governing of two rules of law may cup
the use which the water in the be put. permits If the direct decree flow withdrawal of the cup priority water from under a date of 1927 one entirely result is obtained which would be different from securing cup storage a full of water under a decree with priority many years subsequent a date to 1927. Thus cup” the illustration of the “full fails to hold water. majority opinion treats Dillon reservoir as a capable filling
storage very unit under its late decree. Actually unquestioned fact is that this reservoir aas storage junior so unit is to other users that it could be expected impound storage water on decree operations on the rarest of In all occasions. normal Dillon dam would serve two functions: a One as head- diverting appropriation works Denver’s direct through catching tunnel; two, an occasional nothing late There is flood summer. our law may the effect that a dam not be used both as a head- gate storage and as a control. In fact the same structure storage often is used for both uses in direct the case Many carry storage ditches water to off- ditches. supply appropria- stream and also to reservoirs direct headgate frequently The same ditch and tions. have storage both and direct decrees attached to them. The structure carries both identical kinds of A water. ditch capacity may day carry 500 second feet one storage second feet to reservoir on a decree and the entirely carry day different next 500 second feet why the Dillon uses. There is no reason decree for direct diverting and both the dam succession cannot fulfill any quantity storage amount- of water If functions. dam the Dillon ing awarded to a of that fraction even upon actually storage be relied decree could under its no priority would there decree, of that under the late controversy Court. before this for determination me has authorized Holland Mr. Justice conclusion opinion and in this full concurrence to announce his say the munici- have would included further pality he Springs.in dissent, and in addi- this of Colorado following is, observation, tion add the thereto language, as follows: his analysis pivotal question involved in “In the last determining 'conflicting claims that have arisen in *50 priority litigation ‘diligence.’ words, In other this is upon question a determination stand fall diligence perfecting of in connection with the reasonable regard, of I have an different claims. this indelible impression be a different more that there should and approach diligence ap- question liberal of when to carry plied municipalities governmental duty their out their in efforts sup- obtaining and function of and plying for their inhabitants. Our and water statutes geared largely of been decisions our Courts have irrigation appropriation purposes, of of for matter water there decisions, and virtue of such statutes and has appears majority opinion, now and an in- been, fringement .upon truly domestic It is use water. advantageous profitable to a and farmer have water maturity development crops; for however, of his fundamentally important people congre- it is more gated municipality have water to itself, sustain life safety. municipality A as as health well cannot people taking up prevent thousands of their abode in a city, presented. the domestic- need is at once To important providing all matter of this for meet water necessarily plans consumption, be must vast domestic finally, financed to tested, studied and conceived, accomplish required a matter of This is not result. overnight arrangement, speak, far but necessitates so to change many consumption instances, and, more of time arrange original plans required for the tak- is than employed ing from a streams to be of water stream or part agricultural purposes. for On of a on lands integral may by necessity large municipality become a system, perfection changes for of which demands physical feasible, as economic considera- reasons, well as entirely from the be different more tions. Such would declaring simple appropriate matter of intention following use and intention in a water field physical reasonable with some demonstration of time carrying might rightfully the intention forward. What diligence be determined reasonable liberal sense application municipality part plan, on with such properly negligence part could appropriators be considered on the purposes. my
for other firm convic- It decisions tion that our statutes and should retimed inescapable actual meet the necessities life that are city attempt humanity. in a in its to care for a mass of regulations imposed upon city We find water dwellers rigid imposed upon when no restrictions are the takers purposes rights. for other under their decreed ally myself I the side individual his vital against plants, needs for life itself industrial moun- grain. tains trees and fields The individual would have little need the latter if he could not have a *51 firmly drink of water. are taken We back estab- proposition things By lished that first come first. present application of our
strict water statutes and the adherence to decisions that have not taken or allowed approach question diligence more liberal appropriation they in these matters as relate to a mu- nicipality, day growth do we further hasten the when the halted, cities is and such a standstill, allowed to freely may
wither on vine, taken while water be priorities, under old and land, allowed to run across the finally tongue city back to the sea, while dweller’s may parch with thirst.” foregoing opinion
For the I am that the reasons of the City County and Denver conditional entitled per priority decree for 1600 cubic feet with a second, date as of October 19, 1927.
Mr. Justice Holland and Mr. Knauss con- Justice cur in this dissent. Supplemental
On Motions and Petition
Rehearing. Statement Mr. Holland. Justice position of Mr. Justice Mr. Justice Knauss Moore, myself, taken at the time of announcement of majority opinion and to herein, which we ad- still uncertainty; here, admits of no however, in the fulfill- processes ment of our Court there comes time minority, expected parties, litigant when the as is public, accept finality and the must adhere majority opinion. pro- Therefore with this correct hesitancy, regularly cedure I mind, had no after the rehearing motion for allowed was denied December adopted 13, 1954, issued, remittitur make the supplemental rehearing motion that motions and mo- tions for further relief the remittitur recall January denied, denied on 3, 1955, were January peti- respectively. motions and These unanimously slightest tions were denied. Without the participation original as to the merits of the or the case opinion Lindsley unhesitatingly par- therein, Mr. Justice ticipated in the matter the denial of last of the proper procedure subsequent motions as establish proper finality litigated other this, as is as well as cases.