39 Colo. 332 | Colo. | 1907
Lead Opinion
delivered the opinion of the court:
Can the relative rights of canals drawing water from the same stream for the purposes of irrigation, where their respective priorities have been regularly determined and awarded by adjudication proceedings in different water districts, be determined as between each other in an independent action after the lapse of four years from the date the respective adjudication decrees fixing such priorities were rendered? is the question presented for our determination in this case.
Plaintiff in error, The Fort Lyon Canal Company, owner of the Fort Lyon Canal, in connection with William O’Neill and D. S. Elliott, consumers under this canal, on the 24th day of September, 1901, commenced an action in the district court of Prowers
The headgate of the Fort Lyon canal is in water district No. 17. By statutory proceedings instituted in the district court of -Bent county — the court having jurisdiction to adjudicate rights to waters for irrigation in this district — there was, on the 3rd day of June, 1895, awarded priorities in the waters of the Arkansas river, to which the owner of the Fort Lyon canal has succeeded and is entitled to divert thereby, as f.ollows: 164.64 cubic feet per second of time, of date April 15, 1884, and 597.16 cubic feet as of date March 1, 1887. This canal is now the property of The Fort Lyon Canal Company, one of the plaintiffs in error. The predecessors in interest of The Fort Lyon Canal Company were parties to these adjudication proceedings. The headgate of the Amity canal is in water district No. 67, and on the 1st day of July, 1895, by proceedings duly instituted in the district court of Bent county — the- court having jurisdiction to adjudicate rights to the use of water for irrigation purposes in this district — there was awarded a priority to the flow of the Arkansas river, to which the owner of the Amity canal has succeeded and is entitled to divert through this channel, of
Upon the foregoing facts the defendants, among others, interposed a defense to the effect that the several decrees having been in force for more than four years prior to the bringing of the action by plaintiffs, §§ 2434 and 2435, Mills’ Ann. Stats., constitute a bar to showing any priority other than those established by such decrees. The statutes above referred to, -so far as relevant, are as follows:
“2434. Nothing in this act, or in any decree rendered under the provisions thereof, shall prevent any person, association or corporation from bringing and maintaining any suit or action whatsoever, hitherto allowed in any court having jurisdiction to determine any claim of priority of right to water by appropriation thereof, for irrigation or other purposes, at any time within four years after the rendering of a final decree under this act, in the water district in which such rights may be claimed, * * * and the water commissioner of every district where such decree shall have been rendered shall continue to distribute water according to the rights of priority determined by such decree, notwithstanding any suits concerning water rights in such district, until, in. any suit be*336 tween parties, the priorities between them may be otherwise determined, and snch water commissioner have official notice by order of the court or judge determining such priorities, which notice shall be in such form, and so given, as the said judge shall order.”
'“2435. After the lapse of four years from the time of rendering a final decree in any water district, all parties whose interests are thereby affected shall be deemed and held to have acquiesced in the. same, except in case of suits before then brought, and thereafter all persons shall be forever barred from setting up any claim to priority of rights to water for irrigation in such water district adverse or contrary to the effect of such decree.”
The trial court rendered judgment dismissing the complaint, and plaintiffs bring the case here for review on error.
The contention of counsel for plaintiffs is, that inasmuch as the adjudication proceedings were separate and distinct, neither of the parties to this action n.or their predecessors participating in the proceedings in which the rights of the other were determined, that as between each other the respective proceedings are in no manner res judicata, and that the action of plaintiffs may be maintained as though adjudication proceedings had never been had, and the relative rights of the respective canals adjudicated without regard to such proceedings. Counsel for defendants contend that these adjudication proceedings, having' been in all respects regular, are conclusive of the rights of the. plaintiff company after the lapse of the period prescribed by §§ 2434 and 2435, supra. The determination of the case before us, in so far as we have stated what the record discloses, therefore, turns upon a construction of these sections'with respect to imposing a limitation of the time within
This court has held that the decrees of the several districts taking water from the same general source are prima facie evidence as between such districts.—Independent Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513. We have also decided that it is the duty of the superintendent of irrigation for a water division to distribute the waters of the streams of his division in accordance with the adjudication decrees of the water districts included therein, so that, in effect, the various decrees in a water division are to be treated as one, and water distributed accordingly.— Lower Latham D. Co. v. Louden I. C. Co., 27 Colo. 267. Such was the law at the date when the adjudication proceedings were had and terminated in water districts 17 and 67, and each of the canals involved in this action took their priorities with this provision of the law attached, and under the conditions thereby imposed. When, then, if at all, do the decrees of different districts evidencing the rights of appropriators of water from the same general source, become conclusive as between such appropriators?
The decree when first entered is not final, because we find provisions for re-argument, and review, and for appeals — §§2425, 2427, Mills’ Ann. Stats. Notwithstanding these provisions, however, the decrees are res judicata between those who were parties to, or participated in, the proceedings in which such decrees were rendered, and can only be attacked, reviewed or modified in the manner provided by law.— Louden Canal Co. v. Handy Ditch Co., 22 Colo. 102. Section 2434 does not permit one who was a party to an adjudication proceeding to maintain an independent action against another party to such a proceeding for the purpose of fixing rights different from those determined in the ad
The state had the power to provide reasonable means for determining rights to the use'of water, and to require all persons claiming such rights to present them in a prescribed manner, within a prescribed period, and to provide that all such claims not thus presented should be barred—Barker v. Harvey, 181 U. S. 481. Parties to adjudication proceedings in one district are bound to take notice of
Under the facts of this case, we are of the opinion that the action instituted by plaintiffs was barred by virtue of the provisions of the sections of the statutes interposed by the defendants. It is urged by counsel for plaintiff's that these sections only apply to rights within a water district. The effect of the previous decisions of this court is adverse to this contention ; that is to say, it has been repeatedly decided
The judgment of the district court ‘will stand affirmed. -Affirmed.
Chief Justice Steele and Mr. Justice Campbell concur.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court:
In support of the petition for rehearing, counsel have filed an additional and able brief, which is supplemented by instructive briefs by counsel •amici curiae. In view of the importance of the question involved in this appeal, and the fact that it is one of first impression, we deem it proper to further consider the questions discussed by which the conclusion was reached, that §§2434 and 2435, 1 Mills’ Ann. Stats., constituted a bar to plaintiffs ’ action.
By § 5, art. XVI of the constitution, it was provided that the waters of every natural stream within the state not appropriated at the time when the constitution was adopted should be the property of the public, and was dedicated to the use of the people of the state subject to appropriation for beneficial uses. For the purpose of providing a procedure whereby
Eeduced to its final analysis, the contention of counsel for plaintiffs is, that the adjudication decrees are not binding upon the plaintiff company because neither it nor its predecessors were ever impleaded with the owners of the Amity canal in a common forum for the purpose of having their relative rights to the use of water from the Arkansas river deter-, mined.
The first criticism of the opinion is, that it does not appear from the record that the decrees rendered in water districts Nos. 67 and 17 have been enforced by the officials charged with the distribution of water in accordance with the priorities awarded. This contention is based upon the assumption that The Fort Lyon Company, by reason of the distribution of water in accordance with the priorities awarded,, was not deprived of its rights until about a year before it commenced its action. We do not think this fact is of any particular importance in the present- case. It is, perhaps, true that by adverse user, abandonment or other conditions arising after the rendition of a decree, rights may be acquired, or lost, independent of such decree; but no such question is presented by the record in this case, because, in our
. It is again urged upon our attention that these statutes do not apply to parties outside of the water district. As we endeavored to point out in the original opinion, this contention is not tenable. If these sections are only applicable to parties in the district in which adjudication proceedings are had, then such proceedings would accomplish little or nothing in the way of adjusting rights to the use of water. They could be invoked, priorities awarded, and then ignored by the commencement of other actions by parties dissatisfied with the decree. Such could not have been the purpose of the general assembly when the irrigation statutes were passed, and this court has so declared in cases cited in the original opinion.
It is also urged that, because parties claiming rights to the use of water outside of the district in which adjudication proceedings are had may not participate in such proceedings, therefore the statutes in question must be limited to parties in the same water district. Instead of this being an argumentan favor of such construction, we think it but
It is now urged that the construction of the statutes under consideration render them unconstitutional, because parties in different water districts are thereby deprived of their property without due process of law. When the case was argued orally counsel were interrogated by the court as to whether or not a constitutional question was involved. This was answered in the negative, and yet the case then, as now, turns entirely upon a construction of §§ 2434 and 2435. A constitutional question cannot be injected into a case for the first time on petition for rehearing. But, aside from this, we do not think there is a fairly debatable constitutional question involved. It is universally held that a statute of limitations is not invalid if the time thereby provided in which actions are barred is not, unreasonably short. All persons are bound to take notice of a public law. The irrigation statutes are public, and apply to all persons taking water from the same source. The waters of the state belong to the public, and, as we said, in substance, in the original opinion, the state in its sovereign' capacity had the right to provide a reasonable method whereby such rights might be adjudicated and settled, and to require
Considerable reliance is placed upon Nichols v. McIntosh, 19 Colo. 22, by counsel in support of the petition for rehearing. That case, however, related solely to parties claiming rights in the same water district, and what was said must be limited accordingly-
Our attention is also directed to Farmers’ Independent D. Co. v. Agricultural D. Co., 22 Colo. 513; but no point properly before the court in that case was decided adversely to our conclusion in the case at bar. It was held that the act of 1887, relating to the distribution of water in accordance with the several decrees embracing the same watershed, was not unconstitutional, and that a suit might be brought by a claimant of-water in one district against a claimant in another from the'same source for the purpose of determining their relative rights; but the question of the time within which such an action should be brought was not before the court, and not determined.
We are of the opinion that our conclusion as originally announced is correct, and the petition for rehearing will be denied. Rehearing denied.
Chiee Justice Steele and Mr. Justice Campbell concur.