56 Colo. 252 | Colo. | 1913
delivered the opinion of the court.
On May 19th, 1906, the German Ditch and Reservoir Company filed in the district court of the city and county of Denver its petition entitled “In the Matter of the Application of The German Ditch and Reservoir Company for the adjudication of priorities of water rights in Water District No. 2, situated in what was formerly known as Arapahoe and Weld Counties, now in Adams and Weld counties, state of Colorado.” The petition sets forth, that the petitioner is the owner of the German ditch, situate in water district No. 2 in Adams and Weld counties, and is also the owner of certain reservoirs used in
An order was entered appointing a referee to whom was referred the petition and all statements of claims to the use of water for irrigation from the natural streams of said water district theretofore filed or that might be thereafter filed in said proceeding. The order included instructions to take evidence, etc., and vested in the referee all powers and duties required of referees pertaining to such adjudications. The referee accepted the appointment, took the oath of office, and executed his notice to all persons interested as owners or consumers of water in water district No. 2, including therein the times and places for the filing of statements, the hearing of evidence, etc. The only purported service upon the other appropriators in the district is by proof of the publica
Upon March 17th, 1909, the Platte Valley Irrigation Company, the Fulton Irrigating Ditch Company, ,and the Farmers’ Independent Ditch Company, after giving notice to all parties named in this decree, filed their petition of intervention praying that the court grant to them and others who might see fit to come in, a rehearing, review and reargument; that they be permitted to introduce testimony which would enable the court to
It is alleged that the referee in attempting to give notice of the proceeding did not comply with the statutes; that neither the German Ditch and Reservoir Company, the clerk of the court, the referee, nor any other person served a notice as required by statute upon the petitioners, nor upon any of the parties similarly situate; that the petitioners owned and claim an interest in priorities and ditches in said district, which ditches take their supply from the South Platte river and its tributaries; that on or before the 1st of June, 1881, they filed with the clerk of the district court of Arapahoe county (now city and county of Denver), having- jurisdiction of the priority of right for the use of water for irrigation in paid water district No. 2, statements of claim under oath, entitled in the proper court, and in the matter of priorities of water rights in said water district No. 2; that at the time of said attempted adjudication the appellants had on file in the office of the clerk of the court their statements of claim filed with the clerk in compliance
The reargument and review were granted. The former claimants filed answers, which, while admitting the existence of the 1883 and 1888 decrees, denied the question of fact that said Dry creek was a natural stream, and denied that all waters coming into it from precipitation, seepage and other sources has at all times flowed down the channel of Dry creek into the Platte river, and denied that said water had been utilized as a part "of the flow of the South Platte river, and denied that it has been used in supplying the priorities of the petitioners and others similarly situated, under the decrees of 1883 and 1888. These answers do not deny the appellants’ allegation pertaining to the failure of personal service. Replications were filed to the answers. Evidence was taken upon the questions of fact. Thereafter, and upon the 19th of May, 1910, the relief sought by the appellants was denied; their petition dismissed, and the costs taxed against them. Upon the same date they filed their statement of appeal. This was ordered allowed, etc.
A motion has been made to dismiss the appeal because not applied for within two years from the date of the entering of the decree appealed from. It is claimed that the decree bears date May 22d, 1908, and no attempt was made to take or perfect the appeal until the 19th of August, 1910, which was more than two years after its date. In considering this motion it is necessary to review the record preceding the application for the appeal. By making the motion the movers concede that
The appellants also appear to maintain a dual and inconsistent position in their attack upon the validity of this decree in so far as service is concerned. They first requested the privilege of reargument and review in order to have it qualified and made subservient to the priorities theretofore decreed them and others, with which it is alleged it conflicts,' for this purpose they asked to be allowed to introduce evidence and to have the final decree so state. They also allege the failure of service, and upon account of this fact ask to have the decree set aside and declared void. The court permitted them to introduce' testimony to sustain their con
It will be observed that the appellants did not participate in the adjudication leading up to the decree of May 22d, 1908, and as above stated the service upon which that decree was rendered was ineffectual so far as it would affect the other appropriators in water district No. 2, who were without notice and did not participate. The granting of the appellants’ petition for reargument and review, with the right to introduce evidence was the same in effect as vacating this decree so far as they were concerned, for up to that time it is conceded it had never been effective as against them. It follows that it never became final as an adjudication decree against them until by their actions they became parties thereto, and then not until the relief prayed for was denied, which was upon May 19th, 1910. This being tiie only judgment in the case which affected their rights in the premises the effect of which was to include against them the declarations in the decree of May 22d, 1908, which included the findings that Dry creek was not a
It is claimed that the appellants had no right, after judgment, to petition for a reargument and review for the reason that they are strangers to the action. Many cases are cited to sustain this position.
The fallacy with the argument lies in its assumption that they were strangers to the action. Upon the contrary, the original petition prays for an adjudication in water district No. 2. The statutory notice was attempted to be given. It is addressed to all those interested in this district and the decree purports to hold that all other consumers in the district are in no manner injuriously affected thereby, the result of which, had the service been good, would have ultimately been a decree against them in a court of competent jurisdiction, and made in the manner provided by the adjudication statutes. The fact should not be overlooked that the object of these statutes is to provide a method whereby these matters can be determined in one adjudication, in which all interested in the district in this respect have the right to participate; and while under certain conditions certain parties are given four years thereafter to establish their priority by an appropriate action, that is no reason why they, as well as the other class, cannot come' in within the two years and make their showing by review and re-argument, as provided for by section 3841, Mills’ Annotated Statutes, Revised Edition.
The statement in Crippen v. X. Y. Irr. D. Co., 32 Colo, at page 455, 76 Pac. 797, where this section was
“The definition which appellants place upon ‘party’ is entirely too narrow. They would limit it to one who has notice of the proceeding and appears therein and offers proof, and gets a decree. But one is a party to these proceedings who has due notice thereof, or who appears therein or files his statement of claim; and the fact that he does not see fit to offer proof in support thereof, or fails to have his rights adjudicated, makes him as much a party to .the proceeding as though he offered proofs and obtained a decree for his claimed priority.”
The statements in Broad Run Co. v. Deuel Co., 47 Colo. 573, 108 Pac. 755, concerning the relief to be secured by bill in equity instead of statutory adjudication, has no application to the facts here. In that case the original decree, on account of its age, was beyond attack under the two or four year statutes pertaining thereto. The action was by supplemental proceedings for the adjudication of water rights, instituted by the Trowel ditch in the same manner that this action was started. The Trowel ditch was constructed since the rendition of the old decree. In this adjudication it was sought to secure a priority for this ditch (which would antedate certain priorities contained in the old decree) but for lands which, it was alleged were entitled to the earlier priority under what is commonly known as the Meadow act, section 3176, Revised Statutes 1908. It was claimed that these lands had been irrigated ever since 1875 by the natural operation and overflow of the river, and until the supply in the river had been decreased by the construction of large ditches and reservoirs, in that and other districts which held earlier priorities, and which consumed practically the. entire available supply. For these reasons it was alleged that they were entitled in this later adjudication
In the case at bar the appellants are not attempting to interfere with any vested right secured to appropriators under former decrees, but to the contrary they and others are the owners of priorities under the earlier decree which it is concede, upon account of its age, cannot be interfered with. They allege that the decree entered in this case, if enforced, will interfere with their vested rights. They are asking, no relief other than that such rights be let alone. In order to ask it they come into the case in which the decree declares that the priorities awarded therein, although in part antedating some of theirs, yet do not affect them. It- also purports to be an adjudication of a part of the waters in the district in which their canals are situate. They presented their petition and were allowed the reargument and review, within the two years from the date of the decree. Under such circumstances we are of opinion that it was not only- proper to grant their petition for the reargument and review, but that it would have been prejudicial error to have denied it.
The question- on which the case was disposed of is whether Dry creek is a natural stream within the meaning of our constitution; if it is, it stands admitted that it is a tributary of the South Platte river and that the priorities awarded from Dry creek are in conflict with, and inter
. It is true, as contended, that in Fanny Rawlings M. Co. v. Tribe, 29 Colo, at page 305, 68 Pac. 205, this court said: “Appellate courts must assume, in the absence of specific and unambiguous findings of fact to the contrary, that the lower court intended to find those facts which are responsive to the issues made by the pleadings, and essential to the judgment rendered.” But in the ease at bar'we have specific and unambiguous findings of fact upon which the court states it bases its conclusion. They are full and complete and.as stated by the court at the time, they were complete for the purpose, in case of an appeal, of advising this court of the reasons for the decision. This is self-evident from the statement of the court made at the time; it is as follows:
“In arriving at the conclusion which has been reached, the court has endeavored to cover, in its findings,*265 the testimony in detail, so that in the event that the supreme court should be called upon to review the case, it may have full opportunity to understand the reasons for the decision in this case, in so far as the facts are concerned. ’ ’
With this declaration of the court entered in the record preceding its findings, we think it was incumbent upon those now objecting, if they had any objections to the court’s findings or to this method being followed, to have made them at that time; not having done so, after thus being advised of the purpose for which they were made, and as stated, they being full and complete, we do not think that they now ought to complain of their being accepted and used for the purposes intended.
The question for determination is whether, upon the finding of facts, the conclusion reached is correct. The finding of facts as set forth by the court, in substance, are that in the year 1859 what is now known as Dry creek disclosed certain physical characteristics, consisting of a channel with banks upon either side of varying height, and the channel varying in width from six feet to approximately twenty feet, and with a general course of direction northeast to the Platte river to a point where it intersects the channel of the Platte river; that the bed of the channel was composed of a clay substance with small gravel or sandy deposit appearing at widely separated points; that beginning with 1859 down to about 1880 a number of water-holes, or washouts, in the bed of the channel, were present at various points which usually contained more or less water, even in the dry season of the year; that several springs existed at early dates on or along the channel; that at several points cottonwood trees of mature growth were found growing along the banks, or in the immediate neighborhood on the banks of Dry creek; that the water-holes had no connection with
From these facts the court concludes that Dry creek does not fall within the definition of what is known as a natural stream, and that at no time since its history, beginning with the year 1859, the earliest date concerning which testimony was offered, down to the hearing, had it ever arisen to the dignity of what might properly be termed a natural stream. In our opinion this conclusion is in conflict with the findings of fact upon which it is attempted to be based. It also ignores the conclusion which must necessarily follow such a state of facts, viz., that natural percolating water finding its way to a natural stream is a tributary of the stream. Our statutes provide that water district No. 2 shall consist of land irrigated from ditches taking water from the South Platte river and its tributaries (except Big Thompson, St. Yrain and Clear creek) between the mouth of the Cache La Poudre and the mouth of Cherry creek. In describing certain other districts the language used is quite similar, while in others it reads that the district shall consist of all lands irrigated by water taken from certain named streams, and from the streams draining into the stream named. It will thus be observed that in describing the
In Strickler v. Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am. Rep. 245, this court held that the rights of a prior appropriator from a stream cannot be impaired by subsequent appropriations of water from its tributaries. At page 67 it is' said:
“All large streams are dependent upon tributaries for a supply of water. To cut off the water from such tributaries would be to destroy the capacity of the stream to the injury of those below. It would result in ruinous and useless"expenditures of money in a race between rival claimants in the extension of ditches towards the source of water supply, and reward success at the expense of the rights of prior appropriaters. ”
In McClellan v. Hurdle, 3 Colo. App. 430, 33 Pac. 280, it is said:
“It is probably safe to say that it is a matter of no moment whether water reaches a certain point by percolation through the soil, by a subterranean channel, or by an obvious surface channel. If by any of these natural .methods it reaches the point, and is there appropriated in accordance with law, the appropriator has a property in it which cannot be divested by the wrongful diversion by another, nor can there be any substantial diminution. To hold otherwise would be to concede to superior owners of land the right to all sources of supply that go to create a stream, regardless of the rights of those who previously acquired the right to the use of the water from the stream below. ” '
To the same effect in principle are: Buckers Irr. Co.
A reading of the above cases in connection with the sundry provisions of our statutes will disclose that in dividing the state up into water districts the legislature in using the words “tributary to a natural stream” did not intend their use in a restricted sense, that is that the tributaries themselves should be natural, continuous running' streams, but as therein used it indicates that the word “tributaries” is used to include all sources of supply which go to make up the natural stream and which properly belong thereto.
In considering what is meant by the words “natural stream” as used in our constitution, it is proper to take judicial notice of conditions existing at the time of its adoption.—Stockman v. Leddy, 55 Colo. 24, 129 Pac. 220.
From the beginning of settlement in Colorado and in other arid regions of the west, irrigation has been recognized by federal and state legislation and by the decisions of federal and state courts as the declared public policy. In section 5 of article XVI of our constitution this public policy is thus expressed:
‘ ‘ The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided. ’ ’
Statutes have been enacted which provide a system for the distribution of the water to those entitled thereto. The natural streams of the state are non-navigable within its limits and practically all of them have their sources
This includes streams like the one under consideration as the facts stated by the court bring it clearly within the definition of a water course or natural stream.
In Chamberlain v. Hemingway, 63 Conn. 1, 27 Atl. 239, 22 L. R. A. 45, 38 Am. St. 330, it is said:
“A water-course consists of bed, banks and water. Yet the water need not flow continually; there are many water-courses which are sometimes dry. To maintain the right to a water-course it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks and sides. ’ ’
In McClure v. City of Red Wing, 28 Minn. 186, 193, 9 N. W. 767, 768, it is said:
“In a broken and bluffy region of country, like that part of southeastern Minnesota adjacent to the Mississippi river and its tributaries, intersected by long, deep coolies or ravines, surrounded by high, steep hills or bluffs, down which large quantities of water from rain*272 or melting snow rush with the rapidity of a torrent, often attaining the volume of a small river, and usually following a well-defined channel, it would be manifestly inappropriate and unjust to apply the rules of the common law applicable to ordinary surface water. In many respects such streams partake more of the nature of natural streams than of ordinary surface water, and must,-at least to a certain extent, be governed by the same rules.”
In Earl v. De Hart, 12 N. J. Eq. 280, 283, 72 Am. Dec. 395, it is said:
“If the face of the country is such as necessarily collects in one body so large a quantity of water, after heavy rains and the melting of large bodies of snow, as to require an outlet to some common reservoir, and if such water is regularly discharged through a well-defined channel, which the force of the water has made for itself, and which is the accustomed channel through which it flows, and has flowed from time immemorial, such channel is an ancient natural water course.”
In Brown v. Schneider, 81 Kans. 486, 106 Pac. 41, it is said:
“It is true, as contended, that there is not sufficient living water to make a continuous flow along the course of the stream. There - must be a permanent source of supply, but it is not essential to a ‘water course’ that the flow should be constant and continuous. Surface water may be the source of supply, and the flow from that source is necessarily intermittent and somewhat irregular. It is sufficiently permanent if the accumulated surface water flows through a well-defined channel made by the water flowing with some regularity during the heavy rains which ordinarily occur in that region. * * * To constitute a ‘water course’ it is not necessary that the supply should be from springs, nor yet that the water*273 should be discharged through a channel into another water course. The fact that the channel of the stream in question grew less distinct, and that it practically passed out of sight, before the waters reached Dry creek, does not argue that the stream lacks the characteristics of a water course. ’ ’
A case with quite similar facts to those here was but recently under consideration by the supreme court of New Mexico, Jaquez Ditch Co. v. Garcia (N. M.), 124 Pac. 891, in which, at page 892, it is said:
“ ‘When surface water, having no .definite source, supplied from fall rains and melting snows from a hilly region or high bluffs, and, owing to the natural formation of the surface of the ground, is forced to seek an outlet through a gorge or ravine, and by its flow assumes a definite and natural channel, and escapes through such channel regularly during the spring months of every year and in seasons of heavy rains, and. such has always been the case, as far as the memory of man runs, such accustomed channel through which the water flows possesses the attributes of a natural water course. * * * The flow of the water need not be continuous, and the size of the stream is immaterial.’ Mo. Pac. R. Co. v. Wren, 10 Kan. App. 408. ‘Where surface water from rains and snows in a hilly country by the natural formation of the ground seeks its outlet through a gorge or rávine, and by its flow assumes a definite channel, such a one, to a casual glance of the eye, bears an unmistakable sign of the frequent action of running water, and through which at regular seasons the water flows, and such has been immemorially the case, such a stream is a natural water course.’ ”
Some of the other cases which sustain our conclusion are: Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 28 Am. St. Rep. 727; West v. Taylor, 16 Or. 165, 13 Pac. 665; Ferris
Portions of the briefs are devoted to the alleged appropriation of seepage and waste waters which it is claimed have developed in Dry creek and its vicinity since 1885, and to the application of section 3177, Revised Statutes, 1908, thereto. As the evidence is not before us it would be useless to enter into a discussion of these questions. Some phases of which, under quite similar facts, have been considered in former opinions, in which certain declarations of law have been announced; to go further without the evidence would be but a matter of conjecture.
The judgment is reversed and the cause remanded with instructions (if the parties desire to proceed under the adjudication statutes) that notice be given to all parties interested in water district No. 2 as provided by law and that the proceedings thereafter be in harmony with the views herein expressed as far as applicable.
Reversed.
Decision en banc.
Mr. Justice Scott dissents.
