Boulder & White Rock Ditch & Reservoir Co. v. City of Boulder

• Decision Date: 10 May 1965
• Docket Number: No. 20788,20788
• Citation: 402 P.2d 71,157 Colo. 197
• Parties: The BOULDER AND WHITE ROCK DITCH AND RESERVOIR COMPANY et al., Plaintiffs in Error, v. The CITY OF BOULDER, Colorado, the New Anderson Ditch Company and the Farmers Ditch Company, Defendants in Error.
• Court: Colorado Supreme Court

Page 71

402 P.2d 71

157 Colo. 197

The BOULDER AND WHITE ROCK DITCH AND RESERVOIR COMPANY et al., Plaintiffs in Error, v. The CITY OF BOULDER, Colorado, the New Anderson Ditch Company and the Farmers Ditch Company, Defendants in Error.

No. 20788.

Supreme Court of Colorado, En Banc.

May 10, 1965.

Rehearing Denied May 21, 1965.

Secor, McCarty, Flanders & Wood, Longmont, Fischer, Fischer & Beatty, Fort Collins, for plaintiffs in error.

Neil C. King, City Atty., Marvin B. Woolf, Asst. City Atty., Raphael J. Moses, Sp. Counsel, Boulder, for defendants in error.

SUTTON, Justice.

The City of Boulder, plaintiff in the district court, and hereinafter referred to as the City, sought and was granted, subject to certain conditions, a decree permitting it to change the point of diversion of water represented by 24 131/240 shares of The New Anderson Ditch Company, owner of the Anderson Ditch (equal to 6.14 cubic feet of water per second of time) and, 5 61/64 shares of The Farmers Ditch Company, owner of the Farmers Ditch (equal to 4.36 cubic feet of water per second of time).

The Anderson Ditch has Priority No. 4 dated October 1, 1860, and the Farmers Ditch has Priority No. 14 dated October 1, 1862. Both ditches are located in Water District No. 6, Irrigation Division No. 1, in the State of Colorado. The City alleged former use of this water for irrigation purposes.

The original diversion point is located near the mouth of Boulder Canyon with the ditches running in and through the City. The desired change is to a point upstream, a distance of about fourteen miles, where the City would divert the water into its pipeline to transport it to its environs for domestic use. In 1925, and again in 1942, the City was successful in two other change of point of diversion actions involving the same ditches. Neither of those decrees was questioned in review proceedings. This action, the City's third, has, however, raised protests from a considerable number of other ditch owners who are hereafter referred to as the protestants.

The record discloses that several of the protestants divert water at or near a common point of diversion at a situs on Boulder Creek not far below the headgates of the Anderson and Farmers Ditches--and above the sewage return outlet of the City. The other protestants have their headgates further downstream and below the sewage return flow of the City.

In brief, the City maintains that all of the waters requested to be transferred can be transferred without injury resulting to junior appropriators under the restrictions and conditions provided in the decree. Conversely, protestants urge that no transfer should take place because of a failure of the City's case; but in any event, it should be permitted only if it be made subject to additional limitations which they propose. They assert that in the event the transfer is not so further restricted, there will be substantial injury to the junior appropriators.

The trial court allowed the change of point of diversion. The protestants, by writ of error, now urge the following grounds for reversal, to-wit:

(1) The City failed to prove non-injury to junior appropriators; and conversely protestants proved there would be injury to at least some junior appropriators;

(1) The return flow, upon which the trial court relied to resolve certain problems of potential injury, will not cure that stream depletion which allegedly will result from the diversion;

(3) The 'built-in restrictions', as to conditions of former use upon which the City relies to prevent injury, will not be effective;

(4) That part of the water in the Anderson Ditch had been wasted in the past and that the trial court erroneously found that all water under the Anderson Ditch had, historically, been beneficially used; and,

(5) The trial court's decree will result in increased use of water to protestants' detriment.

The City assigns cross-error on two issues, viz.:

(1) That the two previous adjudication decrees on these same ditches, in 1925 and 1942, permitting the transfer of water to the same new point from the same old point of diversion, renders the issue as to transferability res judicata in this proceeding and the trial court should have so held; and,

(2) That the trial court erred in refusing to assess the City's costs to protestants.

At the outset, we note that most of the grounds urged for reversal, reveal that protestants simply dispute the trial court's findings of fact. We are directed to a five volume record of 2924 folios (of which four volumes consist of lengthy and complicated testimony) that only the trier of fact had the privilege of hearing and weighing; additionally, we are asked to direct our attention toward water facilities that were personally inspected and studied by the trier of facts. No citation of authority is needed to demonstrate that we do not overturn findings in the absence of a proper showing that the trial court completely disregarded the evidence before it. Suffice it to say, no such showing is made here and our review of the lengthy, complicated record discloses ample evidence to support the trial court's determination on the pertinent controverted factual issues involved. And this is true, even though under our statutes and case law the City had the burden of satisfying the trial court that the conditions imposed would adequately protect other vested rights in Boulder Creek. E. g., C.R.S.1963,...