Antero & Lost Park Reservoir Co. v. Lowe

• Decision Date: 23 November 1920
• Docket Number: 9360,9363.
• Citation: 194 P. 945,69 Colo. 409
• Parties: ANTERO & LOST PARK RESERVOIR CO. et al. v. LOWE et al. LOWE et al. v. ANTERO & LOST PARK RESERVOIR CO. et al.
• Court: Colorado Supreme Court

194 P. 945

69 Colo. 409

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

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

Nos. 9360, 9363.

Supreme Court of Colorado, En Banc.

November 23, 1920

On Petition for Rehearing January 10, 1921.

Error to District Court, Adams County; Harry S. Class, Judge.

Action by Elmer E. Lowe and others against the Antero & Lost Park Reservoir Company and others, in which certain parties intervened. From a decree, various parties bring error.

Chas. F. Tew, of Denver, for plaintiffs.

Perry D. Rose, of Denver, for plaintiffs and defendant Lucas.

Bardwell Hecox, McComb & Strong, of Denver, for defendant Lucas.

L. F Twitchell, Goudy & Goudy, and Paul M. Clark, all of Denver for other defendants.

Melville & Melville, H. L. Shattuck, and E. M Walton, all of Denver, for East Denver Municipal Irr. Dist.

C. H Pierce, of Denver, for interveners.

F. W. Sanborn, James A. Marsh, and Norton Montgomery, all of Denver, amici curiae.

This case contains probably the longest record ever brought to this court. There were 165 days spent in the trial, 80 witnesses were examined, and 385 exhibits introduced in evidence. The record contains 40,000 folios of typewritten matter. The printed abstract contains 16,294 pages, and there are 1,428 printed pages of brief and argument.

In 1879 the Platte Land Company, Limited, called the English Company, for the purpose of irrigating a large body of land it owned near Denver, constructed the Highline canal at a cost of $644,000, which is about 83 miles long, and covers over 100,000 acres. It caused to be organized a holding company called the Northern Colorado Irrigation Company, which held the title to the canal and water privilege, and the Platte Land Company held and owned its stock. In the general ditch adjudication in 1884 the canal was decreed a direct appropriation from the river for 1,184 cubic feet per second for irrigation, with a priority as of January 18, 1879. The company which owned and managed the canal sold to consumers water rights for about 30,000 acres, which, of course, were confined to the river flow, and in low stages not always obtainable to the full amount, and sometimes not any on account of ditches with senior priorities demanding and taking all the water. At the time of the trial there were outstanding and in force ditch rights for about 25,000 acres. In 1891 one Cyrus Richardson filed upon and began the construction of the Antero reservoir in Park county for the purpose of supplementing the ditch rights. Soon thereafter he conveyed his reservoir holdings to a corporation called the Highline Reservoir Company, of which he was president and general manager. October 3, 1907, after about $50,000 had been spent on the project, the Antero & Lost Park Reservoir Company, plaintiff in error, defendant below, purchased the site for $75,000, and after making additional and amended filings completed the reservoir at great expense, so that in 1909 the dam embankment had been constructed to a height of 46 feet, the dam was 4,150 feet long, faced with concrete, and the reservoir at its 33-foot contour line had an estimated storage capacity of 71,000 acre-feet and at its 36-foot contour line had an estimated storage capacity of 85,600 acre-feet, 300 acre-feet of which had been reserved to Mrs. Richardson. While it was the intention and purpose of the company to store water in the reservoir for irrigation and domestic purposes generally, it expected to be able to sell storage capacity under a form or reservoir contract, and naturally the promoters supposed the principal market for such contracts would be with landowners under the Highline canal. (For a more detailed statement, see Antero & Lost Park Reservoir Co. v. Ohler, 65 Colo. 161, 176 P. 287.) For this reason the company desired to own and operate the Highline in connection with the reservoir. February 1, 1909, a contract of purchase was entered into whereby the reservoir company acquired the Highline, and 10,800 acres of land from the Platte Land Company, of which 8,000 acres were under and 2,800 above the line of the canal, and 3,580 acres lay within what afterwards became the exterior boundaries of the East Denver Municipal irrigation district, defendant in error. The purchase price was $600,000 with interest on deferred payments which were to be made from a period extending from April 1, 1909, to July 1, 1913. The canal was conveyed by transferring the entire capital stock of the Northern Colorado Irrigation Company, as representing the ownership of the canal, which was placed in escrow and turned over to the reservoir company upon final payment of the purchase price, and as payments for the land were made deeds were executed to the reservoir company, and it took immediate possession of the canal. The contract of purchase, among other things, contained the following clauses:

'No irrigation district shall be organized by or through the efforts or influence of the second party that shall include any of the lands covered by this contract, unless such lands shall have first been paid for in full under the terms and conditions of this contract, and deeds issued therefor by the first party to the second party.

'No incumbrance shall be placed on any of the lands or water rights described in Schedule A until the same shall have been deeded to the second party, nor shall anything be done by the second party while in the management, operation and control of the said Highline canal or in connection therewith which shall change the status of the present conditions, except in the matter of selling perpetual reservoir water rights to owners of water rights in the said Highline canal as hereinafter provided, nor shall the party of the second part sell or contract to sell in the name or by the authority of the Northern Colorado Irrigation Company any new or additional water rights, but each and all of said matters shall remain as they now are until all of the lands covered by this contract shall have been paid for in full to the first party under the terms and conditions thereof.

'The second party may sell perpetual water rights in its reservoirs to owners of water rights in the said Highline canal, which may be in good standing, but to no other persons, until final payment has been made on this contract, and may contract for the carriage of said water, through the said Highline canal at such times as there shall be room in said canal to carry said reservoir water; that is to say, at such times as the reasonable and safe capacity of the said canal shall not be needed to carry the water to which the owners of water rights in said canal may be entitled; provided that contracts for the running of said reservoir water in said Highline canal shall include an annual charge by the said the Northern Colorado Irrigation Company at a rate of not less than fifty (50) cents per acre, and all such contracts shall be subject to the approval of the first party.'

After making this contract, the reservoir company sold reservoir rights to landowners under the Highline having water rights in the canal. February 19, 1909, it entered into a contract to sell the land so purchased from the English Company to Annis & Simonson, land agents and speculators, upon the same terms by which it had purchased it from the Platte Land Company to which it attached reservoir rights for 8,000 acres, amounting to 8,000 acre-feet, represented by reservoir contracts similar to those sold to holders of ditch rights. The total amount of storage capacity sold, including rights sold for the land purchased from the English Company, was about 11,000 acre-feet under a form of contract, which, among other things, provided:

'The said party of the first part hereby agrees to sell unto the said party of the second part, and the said party of the second part hereby agrees to buy, a water right for ___ acres in the reservoir of said company, known as the Antero reservoir; a ___ acre water right being such proportionate part of the whole capacity of the said reservoir as ___ acre feet bears to the entire available capacity in acre feet of said reservoir, being the pro rata share of the total contents of said reservoir; for example: 80 100-acre water rights require a completed storage capacity of 8,000 acre-feet, and so on, in the same proportion for each additional water right sold until said reservoir is completed to a maximum capacity, as determined by a contour one foot survey made under the supervision of the state engineer, of approximately 85,000 acre-feet, so that all 100-acre water rights sold will be of equal status and of the measure of, as an illustration, and taking 85,000 acre-feet as said maximum capacity, 1/850 part of the completed and available capacity of said reservoir. The water stored in said reservoir shall be distributed pro rata, not only once in each year, but as many times as the reservoir can be filled, or partially filled by the use of reasonable diligence during the year.

'Fourth. It is distinctly agreed by and between the party of the first part and the party of the second part, that if through unavoidable accident said reservoir shall in any season be unable to receive

or hold in storage a quantity of water equal to its then existing capacity to store water, or if through unforeseen and unavoidable accident, any of the structures connected with said reservoir shall be unable to carry and deliver the same at the time required, said company shall not be liable for any damages thereby accruing to the party of the second part, or _____ assigns. The said reservoir company agrees to use reasonable diligence to fill the said reservoir form its appropriations of water now or hereafter made for that purpose, and in case

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