Antero & Lost Park Reservoir Co. v. Ohler

• Decision Date: 06 May 1918
• Docket Number: 8534.
• Citation: Antero & Lost Park Reservoir Co. v. Ohler, 176 P. 286, 65 Colo. 161 (Colo. 1918)
• Court: Colorado Supreme Court
• Parties: ANTERO & LOST PARK RESERVOIR CO. v. OHLER et al.

176 P. 286

65 Colo. 161

ANTERO & LOST PARK RESERVOIR CO. v. OHLER et al.

No. 8534.

Supreme Court of Colorado, En Banc.

May 6, 1918

Rehearing Denied Dec. 2, 1918.

Error to District Court, Park County; Charles Cavender, Judge.

Controversy between the Antero & Lost Park Reservoir Company and George M. Ohler and others. Exceptions having been filed to referee's report, the court made new findings, etc., and the former brings error. Judgment affirmed.

Garrigues and Scott, JJ., dissenting.

Paul M Clark, Goudy & Twitchell, and L. M. Goddard, all of Denver for plaintiff in error.

G. K Hartenstein, of Buena Vista, and Milton Smith, Charles R. Brock, and W. H. Ferguson, all of Denver (R. F. Armstrong, of Denver, of counsel), for defendants in error.

Gerald Hughes and Clayton C. Dorsey, both of Denver, Charles D. Todd, of Greeley, R. W. Flemming, T. J. Leftwich, and L. R. Temple, all of Ft. Collins, Delph E. Carpenter, Charles F. Tew and Walter E. Bliss, all of Greeley, and L. R. Rhodes, of Ft. Collins, amici curiae.

TELLER, J.

Plaintiff in error is the owner of the Antero Reservoir, located on the South Fork of the South Platte river, and the Lost Park Reservoir, located on Goose creek, or Lost Park creek, and duly filed its statement of claim in a proceeding to adjudicate water rights in water district No. 23.

For the first-named reservoir a priority was claimed to the extent of 2,552,654,986 cubic feet as of November 15, 1888, and 1,186,535,819 cubic feet by way of an enlargement as of November, 1907, and for the other reservoir a priority was claimed to the extent of 2,000,000,000 cubic feet as of January 1, 1891.

The referee found the claimant entitled to an appropriation, for the original construction, to the amount claimed, as of March 8, 1891, and, by way of enlargement, 1,174,502,182 cubic feet as of November 1, 1907, provided the claimant proceed with due diligence to complete the reservoir to the above-named capacity. He found that the Lost Park Reservoir was entitled to an appropriation of 2,000,000,000 cubic feet, as claimed, as of January 1, 1891.

Exceptions having been filed to the referee's report, the court made new findings, and gave to the Antero Reservoir an appropriation of 3,727,157,168 cubic feet, its full capacity, as of October 8, 1907. It gave to Lost Park Reservoir an appropriation of 2,000,000,000 cubic feet as of date of October 3, 1907. The cause is now here for review on error.

The substance of the several assignments of error is that the court erred in not adopting the findings of the referee instead of making new findings.

The record contains a large quantity of evidence as to the beginning of work on the reservoir and the prosecution of it. From this it appears that from 1891 to June, 1894, there was some actual construction work carried on; that later, for several years, the only work done was by way of keeping up the fences and buildings on the property; and that from 1898 to the year 1907, when claimant purchased the property, it was rented, and no work done by way of construction. There is ample evidence to support the court's finding that the work had not been carried on with diligence from 1894 to 1907, and that the claimant had no right to an appropriation dated prior to 1907. Under these circumstances, to set aside the court's findings would be a violation of a well-settled rule and without justification.

The former opinion is withdrawn, and the judgment affirmed.

Judgment affirmed.

GARRIGUES J. (dissenting).

I cannot agree with the majority opinion. All the evidence was taken before a referee, who made findings of fact and drafted a decree based thereon, as required by statute. The referee found that construction work was commenced by one Cyrus Richardson in 1891, who soon thereafter conveyed his holdings to the Highline Reservoir Company, of which he was president and general manager; that the company proceeded diligently with the work, and there was expended some $50,000 on the enterprise prior to 1899; that on account of Richardson's death in 1894, coupled with the great financial panic lasting several years, the construction force was reduced in 1894 but work continued without substantial interruption until 1899; that the altitude of the reservoirs in the mountains, with the attendant long winter seasons, made it impracticable to prosecute the work during the winter months; that some work was done after 1899, but active work of construction...