Alamosa Creek Canal Co. v. Nelson

• Citation: 93 P. 1112,42 Colo. 140
• Parties: ALAMOSA CREEK CANAL CO. et al. v. NELSON et al.
• Decision Date: 03 February 1908
• Court: Supreme Court of Colorado

93 P. 1112

42 Colo. 140

ALAMOSA CREEK CANAL CO. et al. v. NELSON et al.

Supreme Court of Colorado

February 3, 1908

Appeal from District Court, Conejos County; Charles C. Holbrook Judge.

Action by Piadad Nelson and others against the Alamosa Creek Canal Company and others. From a judgment for plaintiffs defendants appealed. Affirmed.

A finding of the trial court based upon sufficient evidence to sustain it, will not be disturbed on appeal.

Jesse Stephenson, for appellants.

Ira J Bloomfield, for appellees.

CAMPBELL J.

This action was brought by plaintiffs, appropriators of water from the Alamosa river, a natural stream in water district No. 21 of this state, against defendants, appropriators from the same stream, to restrain the latter from diverting and using the waters thereof to the injury of plaintiffs, who are alleged to have the better right thereto. In 1888 a statutory decree was entered in the proper district court whereby the relative priorities of right to the use of water for irrigation between the various ditches and canals in this district were determined, including the rights of the parties here. The complaint alleged that defendants had wrongfully diverted the waters of the river, and threatened to continue the same, by means of the Molino ditch, to which ditch had been adjudicated priority No. 3 for 6.93 cubic feet of water per second of time to date from May 1, 1869, and that each and all of the priorities of plaintiffs were, under the decree, inferior and junior to the adjudicated priority of the Molino ditch. Though there was awarded to the Molino ditch the priority mentioned, nevertheless its capacity was never such as to carry the quantity given, and that it has never been used to irrigate more than about 12 1/2 acres of land. That in their statement the then owners of that ditch, preliminary to their obtaining a decree, claimed only 3 cubic feet of water per second of time to irrigate 50 acres of land. That only .93 cubic feet of water per second of time has ever been used in irrigating the lands lying under the ditch by the owners thereof until shortly before the beginning of this action. The complaint then charges that all of the water decreed to the Molino ditch, except .93 cubic feet per second of time, has been by the owners of the ditch abandoned since the decree was entered, and the same has been hitherto appropriated and ever since continuously used and enjoyed by plaintiffs and other appropriators of water from the same stream until a short time before the bringing of this action, when such use was interfered with by defendants. In the answer defendants denied the abandonment, and claimed a superior right to plaintiffs, and as a second and affirmative defense alleged that the headgate of the Molino ditch was several miles higher up the stream than the nearest headgate of any of the plaintiffs' ditches, and that between such nearest headgate and the headgate of the Molino ditch were a number of ditches through which had been made appropriations of water senior to plaintiffs and junior to the Molino ditch, which were entitled to divert such water before the ditches of plaintiffs were supplied, and that if a quantity of water equal to the entire volume which had been decreed to the Molino ditch was not turned into its headgate, but allowed to run down the stream, the bed of the stream between that point and such nearest headgate was of such a nature and character of soil that none of it would reach the headgates of any of plaintiffs' ditches. Upon these affirmative matters being traversed by the replication, the issues thus raised were tried to the court without a jury, and the court made specific findings of fact in favor of plaintiffs and granted the injunction prayed for. Defendants appeal.

1. The burden of proof was upon plaintiffs to prove the abandonment alleged. Abandonment is made up of two elements, act and intention. Nonuser alone, at least short of the period of the statute of limitations, is not sufficient to prove an abandonment, but nonuser continued for a considerable length of time, coupled with other acts of a character tending to show an intention on the part of the owner not to resume, or repossess himself of the thing whose use he relinquished, may constitute an abandonment. The evidence in this case was conflicting, but we think it sustained the finding by the court of an abandonment.

The defendants say that it was error for the court to admit in evidence a copy of the statement of claim which the owners of the Molino ditch filed in the district court, as they were required to do under the statutes in order to obtain a decree of priority, and to hear evidence as to the carrying capacity of the ditch, and the quantity actually diverted and applied to a beneficial use before the decree was entered. This upon the ground that the decree is a verity, and that the volume of water thereby decreed is res adjudicata, and if such decree is not, within the statutory time, reviewed, set aside or appealed from, it is binding upon the parties to the proceedings, and cannot thereafter be questioned except on the ground of fraud. Defendants' propositions of law are correct, but they are in error as to their application to the facts of this case. We think the case as made comes squarely within the decision of this court in New Mercer Ditch Co. v. Armstrong, 21 Colo. 357, 40 P. 989, and is not opposed to anything decided in P. V. I. Co. v. Central Trust Co., 32 Colo. 102, 75 P. 391. In a late case decided at this term, O'Brien v. King, 92 P. 945, a similar objection, under a different state of facts, was considered. It was there held, in accordance with several of our previous rulings, that a statutory decree establishing priorities is res judicata as to volume, and cannot be collaterally attacked. In that case the complaint was framed upon two grounds: (1) That the appropriation had never been perfected to a greater extent than sufficient to irrigate two acres of land--a less quantity than the decree awarded; (2) an abandonment of the appropriation subsequent to the decree.

To sustain the first ground the plaintiff, who attacked the decreed appropriation, relied solely on the same kind of evidence as that objected to in the case at bar--that is evidence of acts and conduct antecedent to the decree--and the court there said its admission was improper because such matters were not open to inquiry in that case, the question of volume being res judicata. Judge Goddard, who wrote that opinion, then proceeded to say that in some cases, evidently referring to the New Mercer and similar cases, which are like the one now before us, the admission of this class of evidence was held not to constitute prejudicial error, since evidence of acts subsequent to the decree was legally sufficient to prove abandonment; but in that (O'Brien) case, since the trial...