58 Colo. 462 | Colo. | 1915
Lead Opinion
delivered the opinion of the court:
On the merits, the question involved is whether the Greeley and Loveland Irrigation Company wrongfully impounded and held in its reservoir water which should have been permitted to flow down the stream, from which it was diverted, to supply the priorities of defendant in error, The latter brought an action against the irrigation company and certain water officials, the purpose of which was to compel the return of the stored water to the stream, and to restrain the commission of such alleged wrongful acts in the future. The judgment was in favor of plaintiff, and defendants have brought the case here for review on error.
Briefly, the facts presenting the merits of the controversy are as follows: The irrigation system of the defendant company is located on the-Big Thompson, a tributary of the South Platte, in Water District No. 4. The plaintiff owns an irrigation system on the South Platte in Water District No. 64. Each has decreed priorities for direct irrigation. The headgate of the plaintiff company is about 175 miles below the headgate of the defendant company. On the afternoon of June 21, 1911, a heavy rain storm occurred on the Big Thompson, above the intake of the canal of the defendant company, which caused a great volume of water to flow down the stream. The defendant company has a decreed priority for direct irrigation for 297 feet, as of date April 1, 1881. Previous to the storm it .had been receiving 133 feet of water, which it was then utilizing by checks in its ditch, so as to cause the water to flow in the various laterals supplied through that channel. This volume of water represented priorities which were in advance of the one dated April 1, 1881. To turn the appropriation of 297 feet into the ditch, with the checks set, would
In this jurisdiction priority of appropriation for a beneficial use has always been recognized as the foundation upon which water rights depend. When the diversion of the flood waters occurred, both corporate parties were entitled to divert water from the stream for direct irrigation, and for ■ immediate application to lands, to the extent their priorities were needed, and could be lawfully supplied; but there was not sufficient water flowing at the headgate of plaintiff to supply those it had been awarded, and were then required to irrigate lands under its system. The right of defendant company was senior to plaintiff, but it did not have any right to divert water for storage to the detriment of plaintiff. In other words, its right was limited to a diversion of water for direct irrigation, to be at once applied to lands under its system, consequently it was without right to divert and store such waters, when by so doing the plaintiff company
On behalf of the defendant company it is contended that the complaint fails to state a cause of action, because it is not alleged that had the flood water not been intercepted by storage it would have reached the head-gate of the plaintiff. It is also claimed the testimony fails to establish that had this water not been diverted it would have been available for the use of plaintiff, and hence the judgment is contrary to the law and the evidence. These propositions can be considered together. The water- involved did not belong in specie to the plaintiff, but when it appears as it does, from the allegations of the complaint and proof, that it has a decreed priority to the use of water from the stream, the flow of which would'presumably be augmented by the flood water diverted, and at the time of such diversion was in need of water to supply its priorities, it will be presumed that the volume in the stream was depleted to its injury as the result of the wrongful diversion by the defendant company. So that instead of plaintiff being required to allege and and prove such facts it was incumbent upon the defendant company to allege and prove them in order to excuse its wrongful act.—Peterson v. Payne, 43 Colo. 184, 95 Pac. 301; Alamosa Creek C. Co. v. Nelson, 42 Colo. 140, 148, 93 Pac. 1112.
In this connection we notice the claim on the part of defendant company that the testimony established that
The defendants filed a motion to change the place of trial to the. District Court of Larimer County, based upon the ground that the action was in tort, which according to the allegations of the complaint was committed in that county. The motion was overruled and error is assigned on this ruling. After the motion was denied the defendants answered and went to trial on the merits. This precludes them from questioning the order of the trial court in denying the motion to change the place of trial.—O’Rourke v. O’Rourke, ante, 300, 144 Pac. 890.
The remaining question urged on behalf of the defendant is not covered by any assignment of error.
The judgment of the District Court is affirmed.
Judgment affirmed.
Decision en banc.
Mr, Justice IJill concurs in the conclusion.
■Mr. Justice White, and Mr. Justice Garbigues dissent.
Dissenting Opinion
dissenting.
I cannot agree with the majority opinion.
1. The South Platte river and tributaries constitute water division No. 1. Water District No. 2 begins at the mouth of Cherry Creek on the South Platte river and extends to the mouth of the Cache la Poudre. Water District No. 1 begins at the mouth of the Poudre and extends to the east line of Morgan county. Water District No.
The Farmers Pawnee Ditch Company owns an irrigating canal having a decreed priority of appropriation for irrigation of 150 cubic feet per second from the South Platte river in Water District No. 64, of date June 22, 1882. The headgate of this canal is about 175 miles on the Platte below the headgate of the Greeley and Loveland canal on the Thompson. The afternoon of June 21, 1911, when both canals were needing all their decreed rights for direct irrigation, there occurred on the water shed of the Big Thompson a rain storm of unusual violence called a cloudburst, which greatly swelled the stream and flooded the country to such an extent that many of the ditches on the Big Thompson were flooded and broken, or their headgates washed out, so that they
*469 “Come now the defendants and move the conrt to change the place of trial of said action from the District Court of Logan County to the District Court of Larimer County, Colorado, and for grounds for said motion say:
That the county designated in the complaint is not the proper county for the trial of said action, and that the same should be changed to the District Court of Larimer County, for that it appears from the complaint herein that the cause of action arose in Larimer County, that the subject matter of the action is properly, located in Larimer County. That it further appears from the complaint that the cause of action and the relief prayed is of and concerning property in Larimer County. That defendants and none of them are residents of Logan County. That none of the defendants were served in Logan County. That the defendant H. H. Kelley is a resident of Larimer County and was served with summons in Larimer County, all of which appears from the complaint, returns of service and the affidavit hereto annexed. ’ ’
The application was denied, and defendant filed an answer in which it admitted storing the water, and alleged the irrigation company was in need of, and entitled to divert all the water of its decreed priorities for irrigation; that the checks in its canal, when the flood came suddenly, were arranged to carry and distribute 133 feet to its consumers which, owing to the low stage in the stream was all the water it was able to obtain; that on account of the suddenness of the flood, its short duration, and time of night when it occurred, it was not practical to arrange or rearrange the checks in the canal in time to economically and properly distribute from the canal the additional water to which it was entitled, and for the purpose of conserving and utilizing the water to which it was entitled, and needed,
2. Plaintiff’s, priority dated June 22, 1882. The Greeley and Loveland Irrigation Company has eight priorities aggregating 445.44 cubic feet per second. The first seven of these aggregate 148 feet and date from 1865 to 1878. The eighth priority is for 297.44 cubic feet and dates April 1, 1881, so that the last priority of defendant is one year two months and twenty-one days senior to the earliest priority of plaintiff. All the priorities of the defendant company are senior to any priority of plaintiff. Defendant was entitled to divert 445.44 cubic feet when it could get it anfl needed it, before plaintiff was entitled to divert any. If all the decrees in all the Water Districts of division No. 1 should be enforced as a whole, or as one decree, all defendant’s priorities in district No. 4 on the Thompson would be senior, and would have to be supplied prior to, any appropriation of plaintiff in district 64, on the Platte. The low stage of the river made it impossible for defendants to divert more than 133 feet on its decree. It demanded and needed and would have taken all its water, but could not get more, because it was not in the, stream. The tern
The question presented is, was the Greeley and Love-land canal lawfully entitled on its decreed priority of April 1, 1881 as against plaintiff’s .decreed priority of June 22, 1882 to divert this water from the' stream when needed by its consumers for irrigation? If so, then defendant had a right to divert it when needed by its consumers for irrigation, which right, was limited to the time and in the volume which it was entitled under the decree to divert for irrigation. The fact that it chose to temporarily store in a reservoir, to better conserve the use of the water for irrigation, was no injury to plaintiff, and deprived plaintiff of no vested right of seniority it had in and to the water as against defendant. As between these irrigating canals, the Greeley and Loveland was entitled to the water because of its prior decreed right for irrigation, and it could have raised its head-gate and ran all the water into its canal if it chose, and plaintiff could and would not have made any complaint. The complaint is, that instead of running it into the canal, as it had a right to do, it ran it into the reservoir, which it had no right to do. Because it preferred from the standpoint of expectancy, to store temporarily in the
In Cache la Poudre Irrigation Company v. Larimer and Weld Reservoir Company, 25 Colo. 144, 53 Pac. 318, 71 Am. St. Rep. 123, the Dry Creek Ditch Company, a mutual corporation, owned the Jackson ditch, which irrigated land north of the river and northwest of Fort Collins, and the Larimer and Weld Eeservoir Company owned a reservoir called Terry Lake. The Eeservoir Company bought stock in the Dry Creek Ditch Company, and ran the water represented by the stock through the Jackson ditch, thence down Dry Creek, from which it was diverted and stored in the reservoir. In the late irrigation season it drew the water from the reservoir into the Eaton canal, and distributed it to its consumers
In Colorado Milling and Elevator Co. v. The Larimer and Weld Irrigation Co., 26 Colo. 47, 56 Pac. 185, the Milling Company owned a flouring mill at Fort Collins on the hanks of the Poudre river, operated by water power through a mill race from the stream. The Irrigation Company’s canal — the Eaton canal — had a decree for irrigation, senior to the decree of the mill.race for power. The headgate of the canal was above the headgate of the mill race. During the summer the mill race had no difficulty in obtaining-sufficient water, for the reason that irrigation priorities below the mill race were in part senior to the Eaton canal. In the winter time it required all the water- of the stream to supply the mill with power. Things ran along this way without any serious trouble until the Irrigation Company built' a large reservoir on the plains, called the Windsor reservoir, and began storing water during the winter season when there was no irrigation, diverting it through the Eaton canal on its irrigation decree, which antedated the decree of the mill race, which prevented the mill from operating by water power. The question involved was whether the Irrigation Company by diverting the water in the winter time for storage had so changed the use decreed the canal for irrigation as to injuriously affect the right decreed the mill race for power. There was no question but what during the summer irrigation season, the Eaton canal had the senior right. The lower court held that because the general decree of the canal for irrigation was senior to the mill race decree for power,
It was not until the case of the Seven Lakes Reservoir Co. v. The New Loveland and Greeley Irrigation and Land Co., 40 Colo. 382, 93 Pac. 485, 17 L. R. A. (N. S.) 329 that the question was squarely presented before the court. This case is important also because two of the same ditches, the Greeley and 'Loveland canal and the Barnes ditch, are involved. Burton D. Sanborn organized the Seven Lakes Company,-which constructed and owned the Seven Lakes reservoir. The- ranches including the site of the Seven Lakes, were farm lands, irrigated from the Louden and Barnes ditches. In purchasing these sites and adjoining lands for the reservoir, the company bought the water which had been used for their irrigation, from the Louden and Barnes ditches, and ceased to use the water upon these lands; stored' it in the Seven Lakes reservoir during the flood time or earlier part of the irrigation season, for use in the latter part of the irrigating season. The water was drawn from the reservoir and conveyed by an outlet into the Greeley and Loveland canal, and distributed to its consumers and used for the irrigation of rowed crops such as beets, potatoes, beans and corn. The precise and only question involved was the right to store for later irrigation use, in the reservoir, priorities decreed to the Barnes and Louden ditches, during the irrigating season, at a time when the water was needed for direct irrigation. The right is upheld in an opinion written by Mr. Justice Gabbert, wherein the court said:
*476 “Appellant, (Seven Lakes Reservoir Company) owns certain rights to the use of water which, prior to its purchase, had been directly applied to the irrigation of lands. Instead of continuing to so use this water, it has ceased its direct application during the period it was theretofore applied, and stores the water, which it would have the right to thus apply, for use later in-the same season. This change is in no manner detrimental to the rights of the appellee. It is not thereby deprived of any water which it would have the right to divert and apply to lands during the irrigating season as against the rights of the appellant. By the change no greater burden is imposed upon the'common source of supply of the respective ditches. It must therefore, logically follow, that the appellant is entitled to divert the water represented by its purchase, and store for use later in irrigating crops, measured by volume and time, which it would have the right to apply directly to lands for purposes of irrigation at the time of such diversion. * * * Appellant is not asserting any right to the water in controversy by virtue of any appropriation for reservoir purposes, but is merely seeking to utilize priorities which it is conceded it is entitled to for direct irrigation purposes by storing the volume to which it is thus entitled for use at a later period. We are of the opinion that the appellant is entitled to so utilize these priorities; that is to say, entitled to store, during the direct irrigation season, the quantity of water, measured by volume and time, which it would be entitled to divert during that period for the purpose of direct irrigation.”
The cases are as much alike as two peas, and yet the majority opinion of the court written by the same judge, never even mentions it.
3. The Greeley and Loveland Irrigation Company learning that certain state water officials in Denver
4. The petition to change the place of trial to Larimer County should have been granted. Chapter 2, concerning the place of trial of civil actions, Code 1887, was amended in 1905, by adding the following section:
“Sec. 25A. All actions affecting property, franchises or utilities, whether by foreclosures, appointment of receivers, or otherwise, shall be tried in the county where such property, franchise or utility is situated, or*480 in the county where the greater part thereof is situated. And it shall he the duty of the court, upon application of any party to the action or interested in the subject matter at once to transfer any case to the county in which such property, franchise or utility is situated. After the application is made, the court shall have no jurisdiction, except for the purpose of entering the order of transfer.”
Session Laws 1905, 166.
This section provides that all actions affecting property whether by foreclosure, appointment of receivers or otherwise, shall be tried in the county where it or the greater part thereof is situated. A priority of appropriation to divert water flowing in a natural stream has been declared' by us to be one of the most valuable property rights known to the law, and surely water that has been captured over night, and stored in a reservoir to be used shortly after, for irrigation, is at least of equal dignity. The reservoir, including the water stored therein, was property. The complaint alleged that about June 21, 1911, defendant company, when plaintiff was needing the water, unlawfully diverted from the stream through the Barnes ditch into the reservoir, fourteen million cubic feet to be shortly drawn off into the Greeley and Loveland canal and distributed to its consumers; that plaintiff needs the water for irrigation, and the conduit from the reservoir is such that it can be turned into the stream and carried down the stream to plaintiff’s headgate. The prayer of the complaint is that the water, by the restraining order, be retained in the reservoir pending the suit and on final hearing be discharged back into the stream and permitted to flow down the river for diversion into its canal, and that the official defendants be commanded to assist and aid in carrying out this decree, and alleges they are made defendants for the purpose of enforcing the delivery of this water to plaintiff. The decree is as broad as the complaint.
5. Aside of any the foregoing matters, I am con