44 Colo. 214 | Colo. | 1908
delivered the opinion of the court:
This is a joint appeal by three separate corporations from certain subdivisions of the general decree under the appropriate statute establishing the relative priorities of rights to store water in reservoirs in water district No. 8.
1. Two of the numerous appellees say that assigned errors’ which concern two or more appellants severally may not be reviewed, because the statute granting appeals allows a joint appeal only when all the appellants “are affected in common with each other by some portion of said decree.” — Session Laws 1881, p. 156, §27 (§2427, Mill?’. Ann. Stats.).
This statute enjoins upon the courts a liberal construction of its provisions, to' the end that all persons may secure the just determination and protection of their rights. — Session Laws 1881, p. 155, §24 (§2423, Mills’ Ann. Stats.). These things considered, and appellate practice permitting this court,in its discretion, to notice errors appearing of record which, because of their failure to comply with the statute or the rules of court, the parties themselves may not urge, we have concluded that it will be to the public interest, save costs to the parties and avoid protracted litigation, to settle on this review the various questions presented by the record which are within the issues the act has in view and which affect substantially the integrity of the various provisions of the decree, to the end that it may, so far as practicable, be harmonious and just to all the parties.
2. The act under which this adjudication was made enjoins on the court the duty of hearing evi-' dence in support of the respective priority claimants, and thereupon entering a decree establishing the
Keeping in mind the foregoing,, we proceed, first, to discuss that. subdivision of the general decree which relates to Douglass lake or reservoir. One of the appellees, The North Poudre Irrigation Company, on September 10j 1901, began its construction, and in its sworn statement claimed a priority therefor as of that date. A portion of the site of this reservoir is in the bed of Dry creek, and the work of construction consisted in throwing up embankments across and alongside the creek. They were substantially finished by appellee in the summer of 1902. In the spring or summer of 1903, appellee contracted to sell the site to one of the appellants, The Poudre Valley Reservoir Company, and thereafter, about March, 1904, the deed to the same was executed, reserving, however, to the grantor, any priority or appropriation which it had theretofore made by reason of its construction work. The court found that appellee thereby had perfected an appropriation before the sale of the site, which sale was several months before the decree was entered, and rendered a decree awarding to appellee
It is the contention of appellants that, under the undisputed evidence, no priority should have been awarded to appellee, the original owner and builder in part of the Douglass reservoir, as the result of such partial construction, because appellee had not then, and never has, perfected an appropriation. There was no finding of fact by the referee or court that appellee ever perfected its appropriation of water for storing in Douglass reservoir, and the record would not justify such finding. Appellee substantially completed the banks, but not the entire work, on the reservoir, and the evidence leaves it uncertain whether, by means of ditches or otherwise, it ever connected the reservoir with the claimed sources of supply; but, if it did, certainly it never turned water into the reservoir, except such as naturally flowed into it from Dry creek or Park creek, of which no use was ever made.
Turning to its sworn statement of claim, we find
From this statement it also appears that of the 460,000,000 cuhie feet, the total capacity claimed for the reservoir, 430,000,000 feet were to he received hy means of the proposed system of exchanges, which, so far as we can ascertain from the evidence, appellee has not yet put into operation, even if it has the facilities for doing so. In short, the only completed appliance that appellee seems to have with which to impound water consists of its dam across the' bed of Dry creek, which intercepts the waters that naturally flow in its channel.
Appellee does not seriously contend that it actually diverted from these ■ sources of supply, or filled Douglass reservoir, or used water therefrom, before it sold and conveyed its site to appellant. Nevertheless, it claims a perfected appropriation prior thereto as the result of its construction work. By an ingenious argument it seeks to uphold this claim. The year 1902, appellee says, was a dry year. There were no spring or summer floods, and the Cache la Poudre river was so low that only senior reservoir claimants could get any storage water. For these reasons appellee says its failure that season to store in or use water from Douglass reservoir, except as to a small volume from Dry creek which was not used at all, is excusable. Appellee'makes no claim that it stored water in Douglass reservoir during 1903, because in the spring or early summer of that year it had contracted to sell the site to appel
The record does not support appellee in any of these contentions. It does not satisfactorily appear that it had in readiness in 1902 appliances for getting, or that it got, into the reservoir water from the claimed sources of supply; neither does it appear that in 1903 it otherwise, or elsewhere, stored the capacity claimed for it. Indeed, the findings of the court, on which the decree in appellant’s favor with respect to the Douglass reservoir is based, conclusively show that the award was predicated entirely upon the,work which appellee did on the reservoir-before the contract for sale of the site was made. The only finding touching the storage of water in Douglass reservoir, is that, “Prior to the transfer of said site to The Poudre Valley Reservoir Company, the latter company filled said reservoir by means of its feeder from the Cache la Poudre to nearly its full capacity, and used and enjoyed the same.” This filling and using of water, the finding itself states, was by appellant, - not appellee, before the' formal transfer by deed of the site was executed, it is true, but after appellant’s right attached by the contract of sale.
It is altogether clear from the evidence, which is strengthened by the fact that there is no finding of the referee or trial court to the contrary, that an appropriation of water was not made or a priority acquired by appellee for Douglass reservoir, either before it conveyed the site to appellant, or at all. The above finding evidently was intended to be, and
Manifestly it was improper to grant two separate reservoir priorities of the same capacity and date to the same reservoir, as the result of one and the same construction and the same act of storing. The referee and the trial court, apparently realizing such unfitness, sought to avoid it and preserve to the appellee, by reason of its original partial construction, a priority to the extent of the capacity claimed by permitting a transfer of the volume to other reservoirs which appellee owned. For reasons which we have already given, appellee had no priority which could be thus transferred. If, however, there was a. priority which was the subject of transfer, reservoirs 5 and 6 were completed and have decrees for priorities of their own of a date later than that of the Douglass priority, and 7 and 9. were not completed at the date of the decree, and their total capacity is not equal to the aggregate capacity awarded to the Douglass reservoir. But, aside. from the impossibility of fully carrying out the transfer, had there been a valid appropriation, we do not think any such
For all these reasons, that part of the decree awarding á priority to appellee for Douglass reservoir, and permitting'it to be utilized through othérs of its reservoirs, is erroneous and -should be entirely omitted.
3. One provision "of the decree permitted appellee, The North Poudre Irrigation Company, to fill its Caverley, Stutchell, and Fossil creek reservoirs twice in any one year to their full capacity, and another provision gave to- appellant, The Water Supply and Storage Company, a similar right for several of its reservoirs; with a proviso in each case “that said second filling shall in no manner affect, prejudice or injure the rights of junior reservoir appropriators.” Some of the appellants object to any double filling whatever, and say that no provision therefor should be in the decree, as there is no authority in the law for it. The appellee objects to the proviso in its own decree, and while it concedes that in a proper case a-double filling should be allowed, it objects to the provision here in favor of appellant-storage company; because, it says, the evidence does
By section 4 of the act of 1881 (Mills’ Ann. Stats., §2403), the decree must award priorities to the several reservoirs in the water district, to- each according to the time of its construction and to the extent of its capacity for storage purposes, and by section 9 (Mills’ Ann. Stats., §2408), the reservoirs must be separately numbered in consecutive order according to the date of priority of appropriation of' water made thereby. These provisions mean that
The trial court evidently had in mind the foregoing when it added to the decree, permitting a double filling, the proviso that the rights of junior appropriators should not be thereby affected. If this proviso has any significance at all, it is, expressed concretely, that double fillings shall not be allowed to a senior reservoir appropxiator in any one •year, until after junior reservoirs have been once filled. The proviso, therefore, virtually neutralizes what is claimed for the preceding clause.
We are of the opinion that all provisions in' the decree for more than one filling of reservoirs in any one year are wrong, and should be omitted in the
4. Counsel have discussed, on the one side with full commendation, on the other with disapproval, the system of'exchanges between its several reservoirs which appellee proposes to adopt. It is not necessary now to explain the ingenious and somewhat complicated method of change and interchange contemplated. We are left in doubt as to whether the decree really purports to sanction such system. The parties seem to agree that it does. If it is to he so interpreted, it is wrong, if for no other reason, because such issues have no place in this proceeding. The question of exchange of water between the same or different owners of ditches or reservoirs, is a matter wholly foreign to the object of this, and is to be determined in some other appropriate, proceeding brought for that specific purpose. But if such issue is properly here, its determination was wrong. We do not attribute to the inventors of this scheme a design to obtain an undue advantage over other appropriators, but if such system of exchange, taken in connection with other parts of the decree in favor of the owner of the Fossil creek reservoir, is put into practice, it will necessarily convert a junior into a senior right. It will make many of the reservoirs of appellants which were built and used for storage a decade before Fossil creek reservoir was conceived, subordinate to the latter. No device or combination of appliances that would produce such a flagrant injustice should be looked upon with favor or sanctioned by a court of equity. All references in the decree, if any, purporting to approve or disapprove such exchanges, are to be eliminated.
5. We now take up some important questions raised by assignments on the part of appellants and cross-assignments by appellee to the decree pertain
The first specification by appellants is that, under the statement of its owner and-the findings of /the court, appellee made two distinct appropriations of water for this reservoir, the first as of date March 5, 1901, of 200 cubic feet per second of time, the second of date October 22, 1901, of the same volume; whereas, in direct' contradiction of such statement and findings, the decree awards the entire priority of 400 cubic feet per second as of date March 5, 1901. In its brief appellee disclaims any right to more than 200 second feet of priority as of date March 5, and expressly says that it claims no right of greater diversion therein adverse to any appellant for the second appropriation of 200 second cubic feet earlier than October 22, 1901; but insists, nevertheless, that, fairly construed, the decree accords with its present assertion of claim. In view not only of this concession, but of the positive findings, the decree should be definite upon these points. It is now not merely indefinite, but clearly wrong, in that it says that under the findings the appellee is entitled to one appropriation of the entire volume as of date March 5, 1901. It must, therefore, be modified so as to award two separate appropriations as of the dates and volumes specified in the findings.
6. The next question pertains to the' prior right, as against appellants, which the decree- gives to Fossil creek reservoir, to be filled by means of its alleged prior appropriation of the water of the Hottel millrace. The importance of the principle of law involved, and the value of the contested right to the parties, have led to a careful consideration of their respective arguments.
Before this special proceeding was instituted, one of these appellees, The Cache la Poudre Reser
In the pending proceeding the trial court, in enforcing what it conceived to be the doctrine established by the decision in that case, determined that the Fossil creek reservoir, owned by another of these appellees, The North Pondré Irrigation Company, was senior-to all the reservoirs of appellants, though the latter were beneficially used for a period of about ten years before work on the Fossil creek structure was begun. In the pending litigation that decision is res adjudicata between the parties to that action who are present here, and as to the reservoirs whose conflicting rights were then determined. But it is not res adjudicata, even between those parties, with respect to other reservoirs owned by them, and not in any wise conclusive.upon any other parties to this proceeding. Of course, under a similar state of-facts between the same or different parties, and as to a different subject-matter, that decision would be followed here and its rule applied, not because of the principle res adjudicata, but stare decisis. The lower -court was impressed with the apparent injustice'of giving, out of the waters of the same stream, a preference to Fossil creek reservoir ahead of other reservoirs which were built and used for storage years before it was begun, but felt constrained, as we have said, to follow what it supposed to be the settled law in this state. To a full understanding of that case, the reported opinions above referred to, in which a detailed statement of the facts are given, should be read.
When we said there that the storage company might not, as against the reservoir company, for its reservoir then in question, take this 60 cubic feet of water, this was not equivalent to saying that it had no right whatever thereto. The effect of the holding was not that as to such volume the storage
This part of the decree proceeded upon the theory, deduced by the trial court from our former decision, that when the reservoir company made its appropriation by ^diverting water at a point below the mill-race, 60 cubic feet of water thereby became segregated from the river and was reserved for all time to appropriations then, and thereafter, to be made below that point, and never could be utilized by appropriators above the mill-race, even though their reservoirs' were constructed and used years before such lower ones were started. Fairly considered, as it should be, with reference to the facts of the particular case, we do not think the decision susceptible of the construction which the court below, and appellee here, put upon it; but if it is, it is to be qualified by the views herein expressed.
That part of the decree, therefore, as to the so-called Hottel mill-race priority, giving, as against all reservoirs farther up the stream, a superior right to the Fossil creek reservoir,.must be modified. As to the reservoirs included in the former action, that decision being res adfudicata is controlling here between the parties to that suit. As between other
The foregoing views adversely dispose of appellee’s cross-assignment of error that its rights to the Hottel mill-race priority are not sufficiently' guarded, and to appellants’ assignment directed against the action of the trial court in holding that the former equitable suit settled the controversy between the rival reservoirs there considered.
7. Appellants argue that the court erred in giving too early a date to the priority awarded to The Larimer and Weld Reservoir Company for its reservoir. It would serve no useful purpose to review the pertinent evidence. Color is given to this contention by the filing statement in which a later date is claimed than the one allowed. But considering all the evidence bearing on the inception of the éntérprise and the ensuing work of constructing the necessary appliances to perfect the appropriation,- we do npt feel justified in saying that the court made a mistake. The decree will not be changed in that regard.
8. The court found that a valid appropriation had been made for Mitchell lakes, a series of five small reservoirs, and gave a decree accordingly. As we read the record, these lakes are used for propagating fish, not for any purpose within the purview of the statute on which this proceeding is founded, except, perhaps, as to reservoir No. 1, water from which the court' apparently thought had been used to irrigate about fifteen acres.of land. The
9. By its cross-assignments, appellee, The North Pondré Irrigation Company, questions the correctness of the decree by which certain priorities were awarded to appellant, The Water Supply and Storage' Company, for Richards and Curtis lake reservoirs. We think the objection interposed is good. If appellee’s statement of the evidence on which the decree is based is correct, and our investigation tends to confirm it, and appellants do not point out wherein it is wrong, no valid appropriation of water from a natural stream was made for either of these reservoirs for storage purposes. A priority therefor is sought on the strength of a temporary storing of water for immediate irrigation, which the storage company had the right to divert to irrigate its lands in virtue of its ownership of stock in a ditch company which had a decree for so-called direct irrigation. In other words, these are what counsel calls “stock-filling reservoirs,” temporary receptacles, forming part of a continuous conduit for carrying water, from the stream directly to irrigate lands. This branch of the decree is, in principle, like that considered in Finley v. Cache la Poudre Company, an appeal from this same decree decided at this term and reported at p. 231, post, wherein we held that a decree for storage purposes, on such a state of facts, was improper. Following that decision, the subdivision of the decree for these two reservoirs must be held unwarranted and should be stricken out.
From the foregoing it follows that, upon the assignments and cross-assignments of error herein-above discussed, the general decree must be modified and corrected in accordance with the conclusions
Reversed and remanded.
Chiee Justice Steele and Mr. Justice Gabbert concur.