Bijou Irr. Dist. v. Weldon Valley Ditch Co.

• Citation: 67 Colo. 336,184 P. 382
• Decision Date: 02 June 1919
• Docket Number: 9272.
• Parties: BIJOU IRR. DIST. v. WELDON VALLEY DITCH CO. et al.
• Court: Supreme Court of Colorado

184 P. 382

67 Colo. 336

BIJOU IRR. DIST. v. WELDON VALLEY DITCH CO. et al.

No. 9272.

Supreme Court of Colorado, En Banc.

June 2, 1919

Rehearing Denied Oct. 6, 1919.

Error to District Court, Weld County; Robert G. Strong, Judge.

James W. McCreery and Donald C. McCreery, both of Greeley, and Robert M. Work, of Monmouth, Ill., for plaintiff in error.

Goudy Twitchell & Burkhardt and H. R. Kaus, all of Denver, and Joseph C. Ewing, of Greeley, for defendants in error.

TELLER J.

The defendants in error were plaintiffs below in an action in the district court of Weld county against plaintiff in error and others to secure a decree of abandonment of a part of a water right in water district No. 2. The right in question was given to one Plumb, one of the defendants below in 1883, in an original adjudication proceeding in the district court of Arapahoe county, now the district court of the city and county of Denver. In 1909 a decree was entered in said court allowing a change in the point of diversion of 40 cubic feet of said priority, which had theretofore been purchased by the plaintiff in error. Upon a trial to the court it was adjudged that Plumb had abandoned all but 25 feet of the priority of 64.4 cubic feet per second of time originally decreed to the Highland ditch owned by him.

The complaint in this case alleges that said ditch was constructed for the irrigation of about 500 acres of land that it had a carrying capacity of not more than 12 cubic feet per second, and that it had never been enlarged. Plaintiff in error contends that these allegations make the action one to modify the decree of 1883, and hence the district court of Weld county is without jurisdiction of the cause.

If these were the only allegations bearing upon the question of use, the complaint would be subject to a general demurrer under our ruling in O'Brien v. King, 41 Colo. 487, 92 P. 945, where we held that abandonment could not be established by evidence only of nonuser prior to the adjudication decree. But in subsequent paragraphs of the complaint there are allegations of nonuser and failure to divert more than 12 cubic feet of water per second from the date of the decree to the beginning of the suit, thus stating a cause of action for abandonment.

Counsel say that an abandonment decree is a new warrant to the water officials, with the result that they must look to two decrees, instead of the adjudication decree alone, for their instructions as to the distribution of water. From this fact the conclusion is drawn that the suit must be brought in the court where the priorities were adjudicated. It does not appear that this court has directly ruled upon that question, none of the cases cited on this point requiring its determination. We have, therefore, to consider the correctness of the conclusion thus urged upon us.

The case of Weiland v. Catlin Co., 61 Colo. 125, 156 P. 596, upon which counsel rely, presented an entirely different state of facts, as there an attempt was made by decree of the district court of Otero county to compel a distribution of water according to that court's construction of an adjudication decree entered in Bent county. So far as the effect upon the original adjudication decree is concerned, there is no similarity between an abandonment suit and a suit to compel water officials to change their method of distributing water. The latter, necessarily based upon a charge that said method is not correct, assumes either that the original decree is wrong or that the officials are not properly interpreting it. This calls for a revision of the decree, or a construction of its provisions.

An abandonment suit, on the contrary, assumes the ownership of a priority, with no question as to the decree evidencing it, and is predicated on matters subsequent to the decree. The fact that a judgment that a part, or the whole, of a priority had been abandoned, makes it necessary for water officials to act under a new decree, as well as under the original decree, does not militate against the right of the district court of the county in which the ditch in question is situated to determine the issue if abandonment, though it was not the court which entered the adjudication decree.

If the banks of a ditch in such county were so broken as to allow its water to flow over lands below it, and the water officials continued, in spite of protests, to turn into such ditch the quantity given it by the decree, no one would deny that an injured property owner might sue in the county where the injury was occurring to compel the officials to respect his rights. An injunction thus obtained would, to a certain extent, conflict with the original decree directing the water to be turned into said ditch; but that would be no valid objection to it. Moreover, the water commissioner obtains his directions for the distribution of water not directly from the decree, but from a certificate issued by the clerk of the court specifying the amount of water allowed to each ditch. Sections 3284 and 3285, R. S. 1908. Said commissioner is required to keep a book in which he enters a brief statement of the contents of such certificate.

Decrees changing the point of diversion are filed in the office of the state engineer, whose duty it then becomes to notify subordinate water officials of such change (section 3229, R. S. 1908), and water commissioners must, of course, amend the statements in their books accordingly. It is not apparent why there should be any more difficulty in correcting such statements in the one case than in the other.

In Parsons v. Ft. Morgan Co., 56 Colo. 146, 136 P. 1024, this court affirmed a judgment in an abandonment suit in Morgan county, though the adjudication decree had been entered in Weld county. No question of the jurisdiction of the district court of Morgan county was raised, nor does it appear to have been raised in any other case in this court. We are of the opinion, therefore, that an abandonment suit need not be brought in every case in the court which entered the adjudication decree.

The defense pleaded the judgment in the general adjudication proceedings in 1883 as res adjudicata of this action. For the reasons already stated, the plea is not good; nor is the plea of the 4-year statute of limitations.

It is next urged that the issues raised in this cause were litigated in the suit to change the point of diversion of the 40 cubic feet of water, and that, the findings in that cause being against these plaintiffs, they cannot again try the said issues. Error is alleged in the sustaining of a demurrer to this special defense.

This defense alleges that all of the plaintiffs in this action...