| Colo. | Jan 15, 1897
delivered the opinion of the court.
It is contended by appellants that the construction placed by this court upon the clause “ estimated capacity to furnish water,” as used in these water contracts, should be modified by reason of the facts set forth in the answer and the evidence introduced upon the trial. Upon a review of the former opinion in connection with the evidence in the case, we are confirmed in the correctness of the construction then placed upon this clause of the contract. We find nothing in the contracts introduced in evidence in any way qualifying or modifying this clause. In fact, every material part of the contract bearing upon the question is set forth in the complaint, and was before the court upon the former review.
The construction of the contract by which the “ estimated capacity to furnish water ” is held to have reference to the water supply as well as to the physical capacity of the ditch, is the only construction, we think, of which the written instrument will permit. But if we go beyond the written instrument, • the proofs leave no doubt but that this construction is in harmony with that given the contracts bjr the officers of the company from the inception of the enterprise until shortly before the institution of this suit. The record is full of expressions by the parties in interest which cannot be satisfactorily explained upon any other hypothesis than the one we have stated. But, admitting that the evidence is contradictory in this respect, we have the findings of the trial court in favor of appellees’ contention; so that whether we look at these contracts from the written instruments themselves, upon the proofs offered, or view them alone in the light of the findings of the district court, the result must be in each instance against the contention of appellants.
It is claimed, however, that the findings of the district court are incomplete. If this be true, it is a matter which should have been called to the attention of that court at
A large amount of evidence was introduced for the purpose of showing the physical capacity of appellants’ ditch. There is a sharp conflict between the witnesses for plaintiffs and the defendants, with reference to such physical capacity. A careful examination of such evidence inclines us to the opinion that by reason of enlargements the ditch has been made capable of carrying 720 cubic feet of water per second of time—sufficient to provide a supply for all the water rights claimed by plaintiffs and defendants, if a sufficient supply could be obtained from the Cache la Poudre river, this being the source of supply for this and many other ditches used to convey water for the purpose of irrigation. But we are satisfied that during a greater portion of the irrigation season the capacity of the ditch to furnish water is not sufficient to fully supply even those given preferred rights to water from this ditch by the district court.
Among other defenses interposed is the following:
“ That in the district court of Larimer county, state of Colorado,' on the 11th day of April, 1882, a decree was made and entered in the matter of the adjudication of priorities in water district No. 3,. division No. 1, awarding to The Larimer and Weld Irrigation Company a decree of priority for 719.99 cubic feet of water per second of time, as follows, that is to say:
“By original construction, June 1st, 1864, 3 cubic feet;
“ By first enlargement, April 1st, 1867, 16.66 cubic feet;
“ By second enlargement, September 20th, 1871, 75 cubic feet;
“By third enlargement, January 15th, 1875,54.33 cubic feet;
“ By fourth enlargement, September, 1878, 571 cubic feet.
“ Total,...........719.99 cu. ft.
“ Defendants therefore say: That the appropriation of said ditch, and the supply of water awarded thereto is 719.99 cubic feet per second of time; that the plaintiffs are, by the terms of their contract, above set forth, and the provisions of the statute in that behalf, required to prorate the water at any time, flowing in said ditch, to the extent of 500 water rights, and each water right is entitled to but one five hundredth part of said appropriation.
“Wherefore, defendants say: That the matters and things set forth in plaintiffs’ complaint, and the injuries alleged and relief sought, are res adjudieata, and plaintiffs ought not to be further permitted to prosecute their alleged cause of action.”
It is now contended that the decree in the case at bar is in conflict with the former decree rendered in the adjudication of priorities between defendants’ ditch and other ditches in that water district, as set forth in the foregoing plea. In answer to this contention of counsel, it is to be said that the former decree, (which was introduced in evidence in this case), by its express terms is limited to the canal itself, and expressly excludes its operation so as to in any manner affect the rights of the various users of water from this canal, as between themselves.' Further than this, in so far as the fourth enlargement of the canal is concerned, it is subject to the following proviso, which is made a part of the same decree which purports to give such appropriation:
“ And, further, as to said appropriation by fourth enlargement—priority No. 79—in said findings and herein above mentioned, it having been found in manner and form aforesaid, that said fourth enlargement of said ditch No. 9 has been in fact made commencing on the month of September, A. D. 1878, by means of which said ditch is actually enlarged to a carrying capacity of 48,200 (forty-three thousand two hundred) cubic feet of water per minute of time, the same having been made at great expense and in good faith, for use for said purpose of irrigation, without the fact that actual appro
This decree was rendered soon after the passage of the act with reference to the adjudication of priorities to the use of water and at a time when the act was not as well understood as at present. It was entered nearly four years after the fourth enlargement of plaintiffs’ ditch was made, and after the lapse of ample time to complete the appropriation. It is doubtful if any court could now be induced to enter such a. conditional decree.
It would be unwise, we think, to enter into a detailed discussion of the effect of this decree, as it is only collaterally involved in this proceeding, and in reality has no bearing upon the controversy now before the court, which is a contest-
It is also claimed that the decree is in violation of the prorating statute of 1879. We do not so consider it. It is admitted in this case that this ditch is entitled to priorities as of date of the original construction, and by reason of its several enlargements. These priorities are protected by the constitution, and cannot be interfered with by legislative action. The most favorable view that can be taken of the statute is that in times of scarcity of water it may be resorted to to compel the prorating of water among consumers having priorities of the same, or nearly the same, date. Farmers’ High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111" court="Colo." date_filed="1889-04-15" href="https://app.midpage.ai/document/farmers-high-line-canal--reservoir-co-v-southworth-6561811?utm_source=webapp" opinion_id="6561811">13 Colo. 111. In the case at bar, however, the contracts provide for prorating water in times of scarcity and are binding between the parties.
We attach no importance to the evidence introduced to show that plaintiffs at times used more water than they were entitled to use. It seems that the headgates of the laterals were not of uniform construction, and for this reason it was difficult to properly apportion the water. This was, however, under the control of the defendant companjp and regulated by its employés. Ditch riders were employed by it to see that the water was properly distributed. But even if plaintiffs were proven to have taken more water than they were entitled to take, we know of no principle by which this would prevent them from maintaining their right to the water to which they are in fact entitled.
A careful examination of the evidence convinces us that the decree of the court below is right, and should be affirmed as to the 366 1/2 prorating water rights designated. We think the only just ground of complaint by appellants is with reference to the failure of the district court to fully adjudicate the rights of defendant Eaton. We think, under the pleadings and evidence, that this defendant should have been awarded the 133 1/2 water rights claimed by him, but sub
This will give no right to the holder of such additional water rights to participate by reason thereof in the distribution of shares of stock in the company, as provided in the written contracts and by the decree, or in the management of the canal; but when the property is transferred to plaintiffs, it should be upon condition that the holders of such additional water rights be allowed to take the excess water, if any, remaining after the preferred rights are supplied upon such reasonable terms for the maintenance of the canal as the court may fix.
With the exception of this modification, the decree will in all things be affirmed. The parties will, however, be permitted to apply to the district court to fix the terms upon which such additional water rights may be enjoyed, and for such purpose the cause will be remanded; costs in this court not to be recovered.
Affirmed.