City and County of Denver v. Northern Colo. Water Conservancy Dist., s. 16881

• Decision Date: 18 October 1954
• Docket Number: 16888,Nos. 16881,s. 16881
• Citation: 276 P.2d 992,130 Colo. 375
• Parties: CITY AND COUNTY OF DENVER, City of Colorado Springs, South Platte Water Users Association, Plaintiffs in Error, v. NORTHERN COLORADO WATER CONSERVANCY DISTRICT, Colorado River Water Conservation District, F. E. Yust, Clayton Hill, Grand Valley Irrigation Co., Orchard Mesa Irrigation District and Palisade Orchard Mesa Irigation District and Palisade Irrigation District, Defendants in Error.
• Court: Colorado Supreme Court

Page 992

276 P.2d 992

130 Colo. 375

CITY AND COUNTY OF DENVER, City of Colorado Springs, South Platte Water Users Association, Plaintiffs in Error, v. NORTHERN COLORADO WATER CONSERVANCY DISTRICT, Colorado River Water Conservation District, F. E. Yust, Clayton Hill, Grand Valley Irrigation Co., Orchard Mesa Irrigation District and Palisade Orchard Mesa Irigation District and Palisade Irrigation District, Defendants in Error.

Nos. 16881, 16888.

Supreme Court of Colorado, En Banc.

Oct. 18, 1954.

Rehearing Denied Dec. 13, 1954.

On Supplemental Motions and Petition for Rehearing Jan. 14, 1955.

Leonard M. Campbell, Glenn G. Saunders, John P. Akolt, Robert A. Dick, Harold D. Roberts, Milton J. Keegan and John M. Dickson, Denver, for plaintiff in error, City and County of Denver.

F. T. Henry, Colorado Springs, A. W. McHendrie, Pueblo, for plaintiff in error, City of Colorado Springs.

William W. Gaunt, Brighton, for plaintiff in error, South Platte Water Users Ass'n.

William R. Kelly, and John R. Clayton, Greeley, for defendant in error, Northern Colorado Water Conservancy Dist.

Frank Delaney, Glenwood Springs, for defendants in error, Clayton Hill and Colorado River Water Conservation Board.

John B. Barnard, John B. Barnard, Jr., and Duane L. Barnard, Granby, for defendant in error, F. E. Yust.

Guy V. Sternberg, Grand Junction, for defendant in error, Grand Valley Irrigation Co.

Silmon Smith and Charles Holmes, Grand Junction, for defendants in error, Grand Valley Water Users Ass'n, Orchard Mesa Irr. Dist., Palisade Irr. Dist.

STONE, Chief Justice.

Under our Colorado Statutes for adjudication of water rights, two proceedings were brought in Water District No. 36: one for adjudication of rights for irrigation, and the other for adjudication of rights for purposes other than irrigation. These proceedings were consolidated for trial in the court below and are considered together here.

The water rights involved are from the Blue River, a stream located on the Western Slope of the Continental Divide in Colorado, and a tributary of Colorado River. We have here for review the decree of the trial court as to priorities awarded to the water project of the City of Denver and that of the City of Colorado Springs and the refusal of priority to the project of South Platte Water Users Association, all situate on the Eastern Slope of the Continental Divide and all proposing to divert water by means of tunnels through the Divide, and also that refusal of priority to the Green Mountain Reservoir and hydroelectric plant, which had been sought at first by the United States of America and later by the Colorado River Water Conservation District.

In considering these conflicting claims, the Court must be concerned not with the oratorical hyperboles of council, or the alarming prophecies of partisans in the Press, or our own opinions as to comparative value of use, but only with the facts in the record, the questions argued before the Court and the application of established rules of law to the adjudication of the respective property rights in the waters of said stream.

First, considering the provisions of the decree adjudicating the rights of the Denver Blue River project:

By its statement of claim in the proceedings before us, Denver asserted right of priority to its Blue River project, both for direct use and for storage of various amounts in its several reservoirs. To the Dillon Reservoir, only, was awarded a conditional decree, which was for the full amount sought, but of later date. No challenge is made or argument presented before us concerning the decree to the Dillon Reservoir or concerning the failure of the trial court to award decrees to the other reservoirs; the only issues presented in behalf of Denver concern the award to its Blue River diversion project for direct use. Claim was made therefor in the amount of 1600 second feet as of date of March 21, 1914, and conditional decree was awarded therefor in the amount of 788 second feet as of June 24, 1946.

A brief summary from the record of the steps taken by Denver in connection with the intended appropriation of water from the Blue River is necessary to understand the issue presented. Denver is located on the Eastern Slope of the Continental Divide. As early as 1914 there began to be envisioned future shortage of water supply and the need for supplemental water from the tributaries of the Colorado River on the Western Slope of the Divide. A preliminary reconnaissance of the Blue River basin was made in that year, but nothing further appears to have been done until 1921 when a consulting water engineer was employed to investigate possible diversion of water from the Western Slope. On July 4, 1921, he began field work in the Fraser River basin and during the same summer did work in the Williams Fork basin. As a result of his work in these basins, the Williams Fork and Fraser River water diversion projects were planned and have since been largely consummated, and water rights have been decreed by virtue of diversion therethrough.

Sometime in the summer of 1922, preliminary surveys were made for the purpose of filing on the Blue River and its tributaries. Thereafter the office work was done and filing made in the office of the state engineer on May 31, 1923. The plat then filed showed a proposed transmountain tunnel to bring waters from the south fork of the Swan River, a tributary of the Blue, through the Continental Divide to Jefferson Creek, a tributary of the South Platte River, on the Eastern Slope. It was introduced in evidence by Denver as its Exhibit A.

In 1926 it was determined to investigate locating an intake at a much lower elevation which would involve less difficulty and expense for collection ditches and collect water from a larger drainage area. Accordingly, a survey was made in that year and plat filed with the state engineer in 1927 for a proposed diversion directly from the Blue River by means of a transmountain tunnel extending from Dillon on the Blue River to Grant on the north fork of the South Platt River. By that plan, in addition to the waters of the Blue and its tributaries which could be captured under the earlier plan, there could be diverted also the water from Ten Mile Creek by virtue of a short collection ditch, and the water of Snake Creek by virtue of a short feeder tunnel, both leading into the main transmountain tunnel. This second plat was introduced by Denver as its Exhibit B.

Geologizing of the tunnel site and geophysical work through subsequent years disclosed obstacles to the construction of this second tunnel, as originally proposed, with the result that the geologist in charge reported unfavorably thereon. Accordingly, it was proposed again to change the plan and to construct an angled instead of a straight-line tunnel a half mile longer. This is referred to as the Montezuma tunnel. This new site was geologized in the years 1943 to 1945. However, no plat appears to have been filed in the office of the state engineer or submitted in evidence showing the date of survey or the proposed location of the tunnel as so planned. In 1941 it was proposed to construct a large channel reservoir at the upper portal of the tunnel, located at the confluence of the Blue, the Ten Mile and the Snake. Adoption of this new plan would eliminate the need for any collection tunnels or ditches; provide storage during flood stage, and stabilize the supply. It necessitated a change in the proposed location of the tunnel of approximately twenty feet in elevation and of about three thousand five hundred feet in the point of intake. The large reservoir so proposed was designated as the Dillon Reservoir and a plat showing the plan for it was filed in the office of the state engineer on November 14, 1942. This plat stated that work was commenced on featues peculiar to storage therein on October 1, 1941. It was introduced as Denver's Exhibit D.

Still later, sometime between November 16, 1942, the time of filing Denver's claim in these proceedings, and July 1946, Denver's plan for the proposed tunnel was changed still again and it was decided to reduce its size and capacity from 1600 second feet to 788 second feet. In the latter year construction of a tunnel of 788 second feet capacity was actually begun and is still being prosecuted, and the trial court awarded to it a conditional decree in the amount of its capacity.

The Colorado River Water Conservation District and others protested the awarding of any decree whatever to Denver's Blue River project and here assign error to the decree awarded it on the ground that Denver now has an adequate water supply, and that a conditional decree should not be given for a larger quantity of water than it can reasonably expect to put to beneficial use. The uncontradicted evidence in the record discloses that Denver had adequate water supply at the time of the hearing without the Blue River water here sought. As to its further growth and consequent future need, there were divergent estimates, all necessarily without actual knowledge. We cannot hold that a city more than others is entitled to decree for water beyond its own needs. However, an appropriator has a reasonable time in which to effect his originally intended use as well as to complete his originally intended means of diversion, and when appropriations are sought by a growing city, regard should be given to its reasonably anticipated requirements. Van Tassel Real Estate & Livestock Co. v. City of Cheyenne, 49 Wyo. 333, 54 P.2d 906; City and County of Denver v. Sheriff, 105 Colo. 193, 96 P.2d 836. Particularly is this true in considering claims for conditional decrees. As was said in Taussig v. Moffat Tunnel Co., 106 Colo. 384, 106 P.2d 363, 367:

'* * * So long as no water has been applied to beneficial use, we are concerned only with an inchoate and an unperfected right. When the water is beneficially applied to a designated use, it becomes...