280 P. 481 | Colo. | 1929
SUIT for injunction, brought by the Handy Ditch Company against the Greeley Loveland Irrigation Company and two public officials, Hinderlider, state engineer of the state of Colorado, and Kelly, a water commissioner, to restrain the official defendants from interfering with plaintiff's use of the waters of the Big Thompson river, and to enjoin the corporation defendant from storing water when plaintiff needs it for immediate use or temporary storage for later use. After numerous motions, demurrers, amendments, and rulings thereon, plaintiff filed a second amended complaint and amendments thereto, to which the defendants demurred on several grounds. The court sustained on the first ground of demurrer, that a cause of action was not stated. Plaintiff elected to stand on its second amended complaint as amended; the same was dismissed at plaintiff's costs, and it brings the case here for review.
We shall omit plaintiff's formal allegations, and briefly state its contentions as we understand them. It owns the right to use 192.43 cubic feet of water per second of time of the waters of the Big Thompson river, decreed for direct irrigation. It owns also five large storage reservoirs, taking water from the same stream, but to which no priorities have been awarded. It supplies water to its stockholders for the irrigation of about 12,000 acres of land. It seeks through injunctive relief to accomplish two things, first, to keep its priority to the flow of the stream for direct irrigation, and second, to use the water so economically that it will be permitted to "temporarily impound" more water for use later in the season, all under and by virtue of its decree for direct irrigation. *199 Plaintiff claims that it has followed this practice for the past forty years.
1. If the above is permitted, it will affect the defendant company in this way: the latter owns certain reservoirs which also get their water supply from the same Big Thompson river, and to which reservoirs priorities have been decreed. Plaintiff's decrees for direct irrigation are senior, in point of time, to defendant company's reservoir priorities. If plaintiff wins on its theory, its direct flow rights will serve for "temporary storage" rights, as well as for the direct flow of the stream, and thus cut out defendant company from its decreed reservoir rights in times of scarcity of water supply.
[1] Plaintiff's theory is untenable. The statute recognizes two classes of appropiations [appropriations] for irrigation, one for ditches diverting water directly from the stream, and one for the storage of water, to be used subsequently.Holbrook Irrigation District v. Ft. Lyon Canal Co.,
[2, 3, 4] It is difficult to understand how the words "temporarily impound," as applied to the storage of water in a reservoir to be used later for agricultural purposes, add anything to the nomenclature of the law of water. "Temporary" means lasting for a time only; it is opposed to permanent, but all water impounded in any storage reservoir is to be put there only temporarily; otherwise its capture from the stream must of necessity defeat the purpose of the law of beneficial user. The right to the use of water, whether by direct flow or through storage reservoirs, is a usufructuary right, and it would be absurd to suppose that water could be used for irrigation by permanently storing it in a reservoir. And so, when we say that water is stored, or temporarily stored for agricultural purposes, it means the same thing. The effect of this is that the plaintiff is entitled to have *200 water distributed to it for its immediate needs according to its priorities for direct irrigation, but it cannot claim storage rights thereunder by using different words for the same thing. As to economical methods, which plaintiff says it has employed, the answer is that economy in the use of water is commanded by law; waste is proscribed; plaintiff has, therefore, done only that which the law enjoins upon it, but to say that a user has not wasted water does not mean that he can store it for future use when he has appropriated it and got a decree only for direct irrigation. To so hold would violate the above decisions, and would not only tend to undermine water decrees, but also to unlawfully extend or enlarge plaintiff's appropriation for direct irrigation, to the detriment of junior appropriators.
[5] 2. The public officials charged with the distribution of water must distribute it according to the decrees therefor. Sec. 1762, C. L. 1921; Gunnison County v. Hider,
[6] 3. The complaint as amended makes particular reference to plaintiff's system of reservoirs, known as the Welch reservoirs, work on which, it is alleged, was *201
commenced and prosecuted with diligence to completion, and water used therefrom in connection with plaintiff's decreed ditches, prior to the building of the defendant company's reservoirs. It is conceded that the several reservoir claims of the plaintiff and the defendant company are the same as those heretofore litigated and reported at length in the 60th Colorado Reports in the case of Greeley Loveland Irrigation Co. v. Huppe, supra, and which came to this court for the second time in Greeley Loveland Irr. Co. v. Handy Ditch Co.,
[7] Plaintiff's brief discusses at some length the allegations of the complaint and first amended complaint, but they were superseded by the second amended complaint and amendment thereto, and thereby became plaintiff's pleadings. The essential principles involved, as far as the decision is concerned, are the same in all, but we have intentionally confined ourselves to the last amended complaint and amendment thereto, which took the place of those that went before.
Judgment affirmed.
MR. JUSTICE ALTER, MR. JUSTICE CAMPBELL and MR. JUSTICE MOORE concur.