279 P.2d 420 | Colo. | 1955
delivered the opinion of -the Court.
In this cause, now before us on review for the second time, the trial court, on rehearing following remand, determined total abandonment of the water rights under priority No. 129 in water district No. 51, by decree awarded to the Williams Fork Ditch on December 11, 1906, for 150 second feet of water for irrigation purposes, with priority thereto as of June 28, 1902, and entered judgment accordingly.
The opinion of this Court upon the first review of this matter is entitled, Peterson v. Colorado River Water Conservation District and reported in 127 Colo. 16, 254 P. (2d) 422. Following trial in the first instance, Peterson conveyed all of his interest in said ditch and water rights to his associates, Harry G. Knapp and Myrlie L. Knapp, who appear here as plaintiffs in error.
The history of the Williams Fork Ditch, as well as the facts then pertinent, are set forth at considerable detail in our former opinion, and, in the main, we shall avoid repetition thereof herein. It must be borne in mind that the Williams Fork Ditch, due to the nature of the terrain traversed by it, was one of much more than usual difficulty, both in its construction and maintenance. It never was constructed to a sufficient capacity to carry the full amount of 150 second feet of water decreed to it, and because of ‘this admitted fact, it is conceded on behalf of plaintiffs that sixty second feet thereof definitely was abandoned. The Middle Park Land and Livestock Company was incorporated in 1908 and shortly thereafter became record owner of said ditch and water rights and continued as such until 1923 when it lost title through foreclosure of a deed of trust executed by it in 1915 to the United States National Bank, as trustee. During its period of ownership the Middle Park Company used said ditch and water right to some considerable extent until ■1915, when one of the twin inverted siphons crossing the Williams Fork in a ch'asm, collapsed. The remaining
For a proper understanding of the problem now before us it also is well to call attention to the fact, as stated in the Peterson case, that from and including 1915 to 1920 one Black was ranch manager and likewise owner of over 170,000 of the 200,000 shares of the corporate stock of the Middle Park Company. At the time of trial Black, the only witness to appear at that hearing who had any financial interest in the property prior to foreclosure, testified that in 1920, in the face of the mortgage and delinquent taxes, the financial burden of repairing the ditch so as to make it workable was beyond his ability; that he had no intention of doing anything about it, and, in effect, abandoned not only the ditch but the ranch as well. At the close of the hearing in that case the trial judge from the bench announced at considerable length his impressions, findings and conclusions, the portion thereof pertaining here being to the effect that he considered Black and the company as identical; that Black very definitely had abandoned the water right involved in the cause, and it having been thereby intentionally abandoned, there was nothing that any successor in title did or could do thereafter that “would breathe life into the corpse of that water right.” For details, see the long quotation from the trial court’s observations in the opinion in the Peterson case, supra.
In reversing the judgment in the Peterson case we held that the findings land conclusions of the trial court in several respects were inadequate to support its judgment of total abandonment. In the first place, the trial court based its judgment wholly upon its determination of abandonment of the water right by Black and failed to consider events thereafter occurring. We held this to have been error for the reason that Black, notwithstanding that he was manager of the ranch and
We have extended the foregoing discussion beyond what ordinarily would be required for the reason that, regrettably, it would appear disagreement has arisen between counsel and between court and counsel concerning the purport and effect of the opinion in the Peterson case, supra, much of the arguments presented in the briefs herein being devoted to that subject. We believe our former opinion to be clear and unambiguous, but if it would to some seem otherwise, the foregoing should eliminate the ambiguity. In the interest of additional clarity we might add that we ordered remand for further proceedings 'along the lines suggested, without limitation to answer only certain questions, or to any particular
Following remand, additional evidence was adduced, naturally cumulative to a considerable extent. At some stage of the proceedings the trial judge, upon request, in which all counsel of record concurred, and accompanied by said counsel, went upon the premises and on foot reviewed the line of said 'ditch throughout its length. His written findings are exhaustive and well prepared. Upon overruling plaintiffs’ motion for new trial he added further comment by oral statement from the bench.
Referring now to the summary of argument, it first is contended on behalf of plaintiffs that by our decision in the Peterson case, we held, on the evidence there before us: (a) That there was no abandonment of the water right; (b) that Black did not abandon it; (c) that, “by quoting with apparent approval the language of the trial court in connection with the action and activities of Peterson and his associates, this Court rules out any acts of any owners of this right which occurred (1) prior to the foreclosure of the deed of trust by the trastee; and (2), after the acquisition of the right by Peterson, as constituting abandonment,” leaving only the period between May 20, 1923, the date when the trustee procured deed following foreclosure, and August, 1928, when he conveyed to Peterson, to be explored by further proceedings, and that the evidence fails to establish abandonment during that period.
We have pointed out the fallacy of such an argument and, to what we have already said, ladd that no such strained construction can logically be read into the language of our former opinion. We simply held that, while Black might expressly abandon his personal interest in the water right, he could not also thereby relinquish the interests of the trustee land lien beneficiaries
The remaining points, set forth as constituting alleged error, all relate to findings of the trial court respecting the extent of diversion and partial abandonment, but where, as here, the ultimate conclusion and judgment and sole remaining issue concerned only the question of
Actually we now have disposed of all matters in plaintiffs’ summary of points with the possible exception of the last sentence of the first, which raises the question of sufficiency of the evidence, but as we already have said, erroneously undertakes to confine the time to the few years intervening between May, 1923, and August, 1928. Having declined to accept such limitation, we might conceivably here rest our labors in that we have covered all points presented. By so doing we might lay ourselves open to accusation of making use of' a technical mechanism to evade discussion of that which now is the only possible remaining question manifesting itself in the case, namely, sufficiency of the evidence to support the findings of the trial court. Certainly the findings support the judgment.
It is admitted that one of two inverted siphons equal in size and about 700 feet in length, went out of condition about 1915 and the other in 1919 or 1920; that neither has been rebuilt; and that no water whatsoever has been diverted or carried by said Williams Fork Ditch since the second of said siphons collapsed.
The record in the case comprises over 1500 folios rendering a complete summarization thereof impossible. Certain facts appear therefrom to be beyond dispute. Black vacated and abandoned his interest in 1920; no new manager came on; and the Middle Park Company did nothing further whatsoever. Foreclosure of the trust deed occurred and deed issued to the trustee May 26, 1923. The premises, with the exception of one year when leased without water, remained vacant and unoccupied from 1920 until after 1930. During all of that time and
Conrad Schrefferman, a general contractor of many years’ experience and a partner of Brown and Schrefferman, which held the tax certificates on the ranch and water rights, later ripening into la tax title on issuance of a tax deed, testified that he examined the 'ditch in 1928, and that the structures therein were in such bad condition as to require reconstruction. He further testified that the purpose of his inspection was to determine what they should do about the property should they acquire title, and tried to sell out because the reconstruction of the ditch would be so great they would not be interested. Later he ’did sell the interest acquired by tax deed for just about the amount of taxes involved, without profit.
Regardless of the 'above-mentioned tax title, it generally is considered that title to the property rested in the trustee from 1923 to 1930. There was no income from the property and the trustee had no funds with which to do anything. The bondholders were organized and appointed a committee to look after their interests. The trustee reported to the committee, and perhaps to others interested, that the property, being unoccupied, was deteriorating, and suggested that a receiver be appointed that the investment might be protected and the improvements maintained and preserved. The suggestion was
At this point Peterson took over. He admits that at that time the ditch was completely out of use, the fences were down, and the fields overgrown with brush. He further admits that during his many years of ownership he put forth no effort toward the further rehabilitation of the ditch or any of its structures. Further evidence is more in conflict. Peterson testified that the first thing he did was to repair the fences, which he asserts took him the better part of two years. He then commenced reclearing the land and shaping it for tillage and crops. He excuses his failure to commence rehabilitation of the ditch by stating that he did not wish to commence any such program until he had funds available to complete the job and estimated that that would require some $50,000 to $60,000. He asserted that on three different occasions he had negotiated loans in sufficient size to rehabilitate the ditch and each time circumstances beyond his control prevented him from carrying out the transaction. He states that in other instances he undertook negotiating to sell seventy-five second feet of the water right for enough money to enable him to reconstruct the ditch, but that in these he also failed. He, and others interested in title since the Middle Park Company lost it, emphatically deny iany intention to abandon the water right, admitting at the same time that they neither used nor maintained it, and did nothing to protect or preserve it. On the whole their conduct is much more indicative of being speculative than operative.
As beneficial use is the ultimate essential in the establishment of a water right, so it also is essential in the perpetuation of such right. Notwithstanding that it has been held that water when reduced to possession is personal property (Brighton Ditch Co. v. City of Englewood, 124 Colo. 366, 373, 237 P. (2d) 116), a water right is something vastly different and, when perfected
In common usage, to abandon means to forsake; give up wholly; quit; when applied to a possessory right, such as is a water right, it means to- discontinue, desert, relinquish, surrender, vacate or give up. Its opposite is to occupy, keep, maintain, use, preserve and protect. In water and irrigation matters it has no special, mystical or different meaning than that well and generally recognized in all instances where are involved legal rights, the preservation and continuation of which are dependent upon possession, use or occupancy. That the life of such right terminates and that it goes completely out of existence upon abandonment, is a principle so well recognized that citation of authority to support it is unnecessary. In the absence of expressed declaration, the difficult question for determination is whether, at any time following its acquisition, the owner of the right decided to quit, surrender or give it up. “Although * * *, the intent of the party charged with abandoning a water right, ditch, or other works, is a necessary element to work an actual abandonment upon his
Further, to the effect that oral declarations of ownership, in the absence of showing of reasonable justification for nonuser, are insufficient to overcome the presumption of intent to abandon, as is also the fact that the right appears to have been carried through a continuous chain of paper title (a contention here urged by plaintiffs), see, Green Valley Ditch Co. v. Frantz, 54 Colo. 226, 233, 234, 129 Pac. 1006, and cases therein cited.
Decisions of courts of last resort are legion in support of the firmly recognized principle that where a water right is not used for an unreasonable period of time, intent to abandon it may be implied. To make analysis of the numerous Colorado cases so holding is unnecessary. This Court, in Farmers Reservoir and Irrigation Co. v. Fulton Irrigation Ditch Co., 108 Colo. 482, 487, 120 P. (2d) 196, stated: “The law in Colorado on abandonment of water rights has been settled for many years.” Then follows in the opinion a discussion of the meaning of the term “abandonment”; that it is a question of intent, nonuse alone being insufficient, and then the following: “But where by clear 'and convincing evidence it is shown that for an unreasonable time available water has not been used, an intention to abandon may be inferred in the absence of proof of some fact or condition excusing such nonuse.” citing cases. Others to the same effect might well be added, such as, Alamosa
The issue of intent in such instance becomes a question of fact for determination by the trial court from all the pertinent facts and surrounding circumstances, and where supported by competent evidence such finding will not be disturbed on review. This rule is expounded in several of the cases above referred to, and together with the principle that nonuse for an unreasonable period of time raises an implication or presumption of abandonment, finds expression in more recent decisions of this Court. Especially applicable is San Luis Valley Land and Cattle Co. v. Hazard, 114 Colo. 233, 236, 157 P. (2d) 144, where the court said: “The trial judge, having both heard the testimony and viewed the premises, was better able to understand and apply the evidence than are we on review.” In Mason v. Hills Land and Cattle Co., 119 Colo. 404, 408, 204 P. (2d) 153, the author of the opinion summarized the above discussed topics, stating inter alia, “To rebut the presumption of abandonment arising from such long period of nonuse, there must be established not merely expressions of desire or hope or intent, but some fact or condition excusing such long nonuse. In the instant case, the existence of such a fact or condition was an issue to be determined by the trial court and the evidence amply supports its determination.” This passage, with added material, is quoted with approval in our opinion in Mountain Meadow Ditch and Irrigation Co. v. Park Ditch and Reservoir Co., 130 Colo. 537, 277 P. (2d) 527, 529.
To the holding that mere “expressions of desire or hope or intent” in abandonment cases are insufficient excuse for nonuse of a water right, we also add that, neither may such nonuse be justified by a showing, as contended in the instant case, that the owner intended
The judgment is affirmed.