delivered the opinion of the court.
Thе City of Colorado Springs petitioned for change of point of diversion of certain water rights from several tributaries of the Blue River, decreed to the East Hoosier and West Hoosier Ditches. It was alleged.that such *292 change would not injuriously аffect the vested right of other appropriators. Yust, the Colorado River Water Conservation District and Hill, filed protests. After hearing, the court found that petitioner had failed to establish the fact that the proposed transfer and chаnge of point of diversion as prayed for would not injuriously affect the vested rights of others, and therefore denied the petition.
In seeking review of the judgment below, it is urged that the trial court erred in denying motion to strike from the protest of the Colorado River Conservation District and from the protest of Clayton Hill, their third grounds of protest, based upon the asserted claim that the decrees granting petitioners said water rights were entered without jurisdiction and in excess of the authority of the сourt, in that said decrees were without limitation as to the times of use or the respective amounts to be used for each of the several purposes for which the decreés were awarded. Assuming that such ground of protest should have beеn stricken, failure so to do did not constitute reversible error for the reason that the court made no finding adverse to petitioner, or at all, on said ground of protest; further, it denied petitioner’s motion to strike, with permission to renew later, and we are not advised that the motion was thereafter renewed.
Error is predicated also upon the admission in evidence, over objection, of protestants’ exhibit 1, which consisted of records of diversions of the East Hoosier Ditch and the West Hoosier Ditch during certain years, certified by the State Engineer as true and correct copies of the records as they appear in the files of his office. Objection was made upon the ground that the data therein contained included that as to diversion of water for a period prior to the entry of the decree, and therefore was an attempt to modify or change the decree. Error is further specified to the admission in evidence of protestants’ exhibits 2 and 3, being the ditch claim state
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ments which were the basis of the decrees for claimant’s said water rights, and to' the admission of protestants’ exhibit 14, which was the testimony offered at the adjudication proceedings in support of the ditсh claim statements in the proceedings in which claimant’s said decrees were awarded. All these exhibits were offered, not only for the purpose of challenging the decrees, which was improper, but also for the purpose of thе use of the water both before and after the decree. As we said in
New Mercer Ditch Co. v. New Cache La Poude Irr. Co.,
Further errоr is predicated on the asserted fact that there was no evidence to support the finding of the trial court. We think it unnecessary to attempt an analysis of the evidence admitted. The showing of interception of additional water аnd of additional time use hereinafter mentioned was sufficient to create an issue of fact as to increased use by virtue of the proposed change.
The one substantial challenge to the decision of the trial court, is the assеrtion of error in its failure to find whether or not the change in point of diversion could be granted without injury to other vested rights upon the imposition of proper terms and conditions.
In this semiarid region, a water right has long been recognized as a prоperty right, often more valuable than the land upon which the water is applied. As our court said long ago in
Strickler v. Colorado Springs,
The water rights here involved were originally obtained by petitioner’s predecessor for use outside the drainage basin of the Blue River. The East and West Hoosier Ditches, running athwart the streams, caught the water from numerous small tributaries at a high elevation and carried it to Hoosier Pass across which it was taken to the place of use; consequently, there is no question involved as to loss of seepage or of return water. By means of the proposed change the greater part of the water would be diverted at a point some 500 feet lower on the streams and taken through the divide by means of a tunnel. The new ditch system taking the water lower down on the streams would intercept the drainage from 830 acres, having an average elevation of 11,400 feet, the waters from which аre not intercepted by the present ditches. The runoff from that area would come earlier in the season than that from the higher areas and permit longer season use of the water.
The only injury alleged or asserted by protestants is thаt claimed to result from enlarged use in
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time and volume by petitioner. The amount of such enlarged use, and the resultant injury, if any, to protestants, would appear to be approximately ascertainable. Petitioner here introduced еvidence as to the extent of additional water intercepted by means of the proposed change and resultant injury, which protestants permitted to go unchallenged. Under such circumstances, change of point of diversion should bе decreed subject to condition which would compensate protestants for such injury. Dismissal of petitioner’s action would result either in his being deprived of a valuable property right or in the necessity of his bringing another action involving the samе parties and the same evidence to determine the same issue which was before the court in this proceeding. Our court has said: “An application for change of point of diversion of water having been judicially determined, may not аgain be litigated as to its injurious effects on the rights of others.”
San Luis Valley Irr. Dist. v. Centennial Irrigating Ditch Co.,
Protestants, in turn, insist that petitioner’s evidence did not establish that no injury would result to the vested rights of others; that no competent evidence was introduced to establish the allegation of the petition, and that denial of change by the court was therefore necessary. The burden of proof on petitioner in such a proceeding requires him to meet only the grounds of injury to protestants asserted by them. As said by the Utah court, in Tanner v. Humphreys, supra:
“In an application for a change of diversion, it is not necessary for a party so applying each time to make a showing that it hаs beneficially used its water right. If it has not, then the protestants may so show. It is assumed that where the water has been used upon the land for which it is diverted, that such amount was beneficially used.
“It would be impracticable to require the plaintiff to ferret out all of the ways in which the others might perchance be injured and offer proof in negation thereof as a part of its affirmative case. The general negative as against injury to the protestants is sufficient to carry the case ovеr a motion for a nonsuit in that respect.”
We think the testimony of petitioner’s witness Debler, as to 'the effect of the change, based upon many years of study and experience in hydrology investigation and upon study of the area, ditches, runoff аnd appropriations involved, was properly received by the trial court and constituted prima facie evidence to satisfy the burden of proof resting on petitioner.
The judgment is reversed and the case remanded with direction tо the trial court to determine, upon the evi *298 dence already taken, together with any additional evidence the parties may see fit to introduce, whether change of point of diversion as prayed for will injuriously affect the vested rights of protestants, and, if so, whether such effect may be prevented by the imposition of terms and conditions, and enter a decree accordingly.