Cache La Poudre Reservoir Co. v. Water Supply & Storage Co.

• Decision Date: 17 September 1900
• Citation: 27 Colo. 532,62 P. 420
• Parties: CACHE LA POUDRE RESERVOIR CO. v. WATER SUPPLY & STORAGE CO. et al.
• Court: Colorado Supreme Court

62 P. 420

27 Colo. 532

CACHE LA POUDRE RESERVOIR CO. v. WATER SUPPLY & STORAGE CO. et al.

Supreme Court of Colorado

September 17, 1900

Appeal from district court, Larimer county.

Action by the Cache La Poudre Reservoir Company against the Water Supply & Storage Company and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

H. N Haynes, for appellant.

Rogers & Shafroth and James W. McCreery, for appellees.

CAMPBELL C.J.

This is a controversy between owners of reservoirs which are used for storing water for purposes of subsequent irrigation of agricultural lands. This is the second time the case has been here. The former decision was upon a demurrer to the complaint,--the opinion reported in 25 Colo. 161, 53 P 331,--in which it was held, contrary to the ruling of the trial court, that the complaint stated a cause of action. The judgment of the district court was reversed, and the cause remanded, with instructions that, if further proceedings be had, they be in accordance with the views expressed in the opinion. When the case again reached the district court the defendant water company filed an answer which put in issue the material averments of the complaint and set up, by way of cross complaint, defendant's claim of seniority. A replication was filed, and upon the issues joined in a trial before the court there was a finding for the defendant, and the complaint was dismissed, from which judgment the reservoir company has appealed to this court. In the opinion above referred to will be found a full statement of the case as made by the complaint. That statement will not now be repeated, but only so much of it given as will elucidate the points determined.

The reservoir of the appellant company is fed by a ditch taking water from the Cache La Poudre river some distance below the head gate of the feeder which supplies the reservoir of appellee water company. Between them is the head gate of a ditch owned by the Colorado Milling & Elevator Company, which diverts 60 cubic feet of water per second of time from the river for the purpose of furnishing motive power to a flouring mill owned by the milling company; and this priority is senior to any appropriation claimed by either reservoir owner. After the water diverted into the mill race performs its function of propelling the mill machinery, it has always been turned back into the natural channel of the river. In 1892 the reservoir company, going upon the stream and finding that such was the case, made its diversion from the river below the point of discharge of the mill race, constructed its reservoir, and for several years thereafter, without interruption, filled the same with water thus diverted. The water company had made an appropriation for storing water in its several reservoirs before the time the reservoir company began its work of construction upon its appliances, and had received a decree of court, in proceedings properly brought for determining that question, which awarded to it a priority of right for storing water in its reservoirs which antedated the beginning of work by the reservoir company.

It is now contended by appellant that the trial court entirely misconceived our previous decision in the case at bar, while it is the contention of appellee that that decision stated the law of the case only upon the hypothesis that the facts were as stated in the complaint and admitted by the demurrer upon the former hearing; but since, in the trial of the issues of fact had after the cause was remanded, the findings of the trial court were in favor of defendant (appellee here), it cannot be said that our former decision is the law of the case we are now considering, which, as a result of the trial of the issue of facts, presents a case radically different from that which was admitted by the demurrer, and before us, upon the former review, when a hearing of the legal issue only was had. We have carefully examined the evidence, the findings, and decree of the court, and the opinion which the district judge filed when the decision was given, with a view to ascertain whether the trial court followed our former decision. The findings of fact, in a narrow but incomplete sense, may give color to the contention of appellee that it made the first appropriation of all the so-called winter waters for storage, and that it was upon this finding that the decree in its favor was made. But the evidence, the special findings, and the opinion of the trial court show that it was not upon this basis that the decree in its favor was rendered. It does appear from the evidence that appellee made an appropriation of some of the winter waters of the stream before any appropriation was made by appellant; but it also clearly appears that, in so diverting water, appellee always recognized, as it could only do, the priority belonging to the mill ditch of 60 cubic feet of water per second of...