Broad Run Inv. Co. v. Deuel & Snyder Imp. Co.

• Decision Date: 04 April 1910
• Citation: 47 Colo. 573,108 P. 755
• Parties: BROAD RUN INV. CO. v. DEUEL & SNYDER IMPROVEMENT CO. et al.
• Court: Colorado Supreme Court

108 P. 755

47 Colo. 573

BROAD RUN INV. CO. v. DEUEL & SNYDER IMPROVEMENT CO. et al.

Supreme Court of Colorado

April 4, 1910

Appeal from District Court, Weld County; Christian A. Bennett Judge.

Special proceeding by the Broad Run Investment Company against the Deuel & Snyder Improvement Company and others. From the decree, petitioner appeals. Affirmed.

James W. McCreery, for appellant.

H.N Haynes, for appellees.

CAMPBELL J.

The Broad Run Investment Company, a corporation, claimed an appropriation of water for irrigation in water district No. 1 of 90 second cubic feet, with a priority as of December 27 1900, the date of the beginning of work on its Trowel ditch which was thereafter diligently completed and the water from it applied to a beneficial use. It also claimed that the ditch was constructed, in part, to carry and utilize an additional appropriation, acquired by its grantor, of 15 second cubic feet under what is commonly known as the "meadow act" (section 2268, Mills' Ann. St.; § 3176, Rev.St.1908), and which resulted as the natural overflow of the waters of the stream upon its adjoining meadow lands as early as the year 1875, and which has been continuously used and enjoyed by it and its grantor down to the time of the filing of its petition in June of 1903. This proceeding was instituted by petitioner by filing its petition under section 2421, Mills' Ann. St., which, among other things, declares that no recognition of any priority shall be regarded by any water commissioner in distributing water in times of scarcity until such time as the claimant, by application to the proper court, has obtained leave and made proof thereof and received his decree therefor. The petitioner here contends that as the original adjudication of water priorities in this water district was made in November, 1895, and as its ditch was not constructed until 1900, and no priority has hitherto been judicially awarded to it, it is entitled in the special proceeding provided by section 2421 to an adjudication thereof, which it prays for, naming the other ditches and appropriations which may be affected by the decree which it asks, even though, as to the 15 second feet, the decree sought would, if rendered, conflict with and antedate some of the priorities fixed in the original decree. The court appointed a referee to take testimony and make findings of fact, which was done, and on such finding the court rendered a decree awarding to petitioner 90 second cubic feet of water, whose priority was to date from the beginning of the construction of its ditch in 1900, concerning which there is no controversy here, but refused to allow the appropriation based upon the so-called "meadow act." The latter portion only of the decree is appealed from, and the only question argued here is whether petitioner is entitled to a decree for its ditch of a priority of 15 second cubic feet, to date, by way of relation, to the earliest time it enjoyed and had the benefit of the natural overflow of the stream upon its meadow lands.

As preliminary to the main discussion, we observe that several of the priorities, as fixed by the original decree of adjudication rendered in 1895, are of a date later than that which petitioner claims as a "meadow" appropriation by way of relation. Necessarily, therefore, if a decree in its favor, as prayed for, is granted, it would materially and injuriously affect and subordinate a number of priorities under the original decree, because it would antedate them. Though objection has not been raised by the respondent that this proceeding is not the proper remedy, we notice the point for ourselves that we may not be understood as sanctioning the practice of entertaining the statutory special proceeding, when, as here, it appears that an adjudication as to the meadow priority is invoked by one who claims that it was not a party to the original adjudication proceeding, and when, if the decree passes, it will materially affect and interfere with the priorities of the original decree. It is true that, under section 2434 of the statute, permission is granted to persons who were not parties to, or who did not appear in, the proceedings which culminated in the original decree, to establish their right to the use of water by some appropriate action or suit, such as was allowed in any court of competent jurisdiction before the so-called "adjudicating statutes" were enacted, even though a determination was sought of priorities claimed to be earlier in time than any of those established by the statutory decree. Yet this is not authority for saying that in the special proceeding under section 2421, which is the one here employed, it is competent for the court to permit a suitor thus to have determined his claim of right to such a priority. Crippen v. X.Y. Irr. Co., 32 Colo. 447, 76 P. 794, decided after this proceeding was begun, says the section does not contemplate such a case. If such relief can, in any event, be granted to one not a party to the original proceeding, the available remedy is a suit in equity, and not a proceeding under the statute. For that reason alone, the trial court properly refused to award the priority under consideration, wholly irrespective of the merits. But, since the question of the proper remedy is not raised by the respondent here, and the remedy invoked was the right one for establishing one of petitioner's priorities of a date subsequent to the entry of the decree, we proceed to determine the controversy concerning the other priority claimed, upon its merits, and as if the appropriate remedy was employed.

The facts of this case are, as found by the referee, that beginning with the year 1881, the meadow lands of the petitioner, during ownership by its grantor, were irrigated as the result of the natural overflow of the stream on whose banks the meadows are situate, and until about the year 1886 crops of hay were grown as the result of that method of natural irrigation. Beginning about the year 1886, a number of large ditches and reservoirs were constructed taking water from the stream, with the result that so much of its waters wee diverted that the amount of the natural overflow upon this meadow was materially diminished, and to such an extent that its then owner at one time constructed a ditch through which waters from the stream were diverted in an equal quantity for its artificial irrigation. This ditch seems to have been abandoned, at least its use was discontinued, and the owner afterwards became a stockholder, or a part owner, in another ditch, to which a different priority had been awarded, and through which he irrigated his meadow. These conditions prevailed at the time of, and for a period of nearly nine years before, the rendering of the original adjudication decree in 1895. Before that decree was rendered, and pending that proceeding, a number of other owners of meadow lands, situate with reference to the stream the same as the lands of petitioner, after the natural overflow was lessened, and after they had constructed ditches through which to enjoy their meadow appropriations, appeared in that proceeding and offered their proofs and received for their ditches decrees as of a priority relating back to the time when they first enjoyed the benefits of the natural overflow of the stream. Petitioner's grantor, however, did not avail himself of this privilege, and no steps were taken by him, or by petitioner, directly to utilize the meadow appropriation through a ditch until the month of December, 1900, more than three years after the decree was rendered, except through the abandoned ditch and from a third ditch, as above mentioned. The referee found, and the trial court approved the findings, that under sections 2434, 2435, Mills' Ann. St., the petitioner's...