City and County of Denver v. Just, 24005

• Decision Date: 06 July 1971
• Docket Number: No. 24005,24005
• Citation: 175 Colo. 260,487 P.2d 367
• Parties: The CITY AND COUNTY OF DENVER, a Colorado municipal corporation, acting by and through and for the use of its Board of Water Commissioners, Plaintiff in Error, v. Alfred C. JUST and Gladys S. Just, Defendants in Error.
• Court: Colorado Supreme Court

Page 367

487 P.2d 367

175 Colo. 260

The CITY AND COUNTY OF DENVER, a Colorado municipal

corporation, acting by and through and for the use

of its Board of Water Commissioners, Plaintiff in Error, v. Alfred C. JUST and Gladys S. Just, Defendants in Error.

No. 24005.

Supreme Court of Colorado, En Banc.

July 6, 1971.

Rehearing Denied Aug. 9, 1971.

Saunders, Dickson, Snyder & Ross, Jack F. Ross, George L. Zoellner, J. J. Petrock, Denver, for plaintiff in error.

Jon K. Mulford, Granby, for defendants in error.

GROVES, Justice.

The defendants in error, called the Justs, brought an action against Denver and others to quiet the title to a 7/25ths interest in a decree of 25.22 cubic feet of water per second of time (cfs) to the Crooked Creek Supply Ditch out of St. Louis Creek in Grand County. The Justs prevailed, and Denver sued out this writ of error. We reverse.

One Ralph Ord obtained the decree for the full 25.22 cfs on August 3, 1911. On November 12, 1914, Ord executed a quitclaim deed, which was recorded later that month in the office of the county clerk and recorder. This deed provided in part as follows:

'Whereas the legal title to The Crooked Creek Supply Ditch stands upon the record in the name of Ralph Ord, and

'Whereas, the ownership of said ditch is divided into twenty-five shares or parts owned by the following persons and in proportions as follows, towit: George Eastom, 7 shares; Gus Johnston, 1 share; Nels Nelson, 1 share; Charles Jacobson, 1 share; Robert Lyon, 3 shares; John Daxton, 1 share; W. E. Ingrim, 1 1/2 shares; F. F. Coolidge, 1 1/2 shares; Fred Feltch, 5 shares, and Ralph Ord, 3 shares.

'Now therefore, for the purpose of establishing and determining the ownership of said ditch, both in law and in equity, I, Ralph Ord, of the City and County of Denver, for good, valid and valuable consideration have remised, released and forever Quit Claimed and by these presents do remise, release, and forever Quit Claim unto the said (persons above named), their heirs and assigns forever, twenty-two shares or parts and all right, title, interest, claim and demand I have in and to said twenty-two shares or parts in the following described ditch and water right, towit: The Crooked Creek Supply Ditch * * *

'To have and to hold the same unto the said parties, their heirs and assigns, to their only proper use and behoof forever, in the proportions above particularly set out.'

The Justs came to the community about 34 years prior to trial, and for the first ten years leased a ranch which was irrigated with water represented by two 'shares' in the Crooked Creek Supply Ditch. They then purchased the property, including the water and ditch rights, and still owned it at the time of trial.

The Ord quitclaim deed transferred seven 'shares' to George Eastom. The Justs testified that they had never seen Mr. Eastom; that during the 34-year period he did not reside in the particular area; and that during that time he did not take any water out of the Crooked Creek Supply Ditch. There was no evidence that Eastom at any time had used any water from the ditch.

Mrs. Just testified that during the thirty-four year period prior to the trial of the action owners of seventeen 'shares' constituted all the users out of the ditch. Apparently, there also had dropped out of sight another grantee who obtained one 'share' by the Ord deed, or his successor. In the 1950s Denver acquired twelve of the seventeen 'shares,' and still holds them.

The Justs discovered that George Eastom had died and in 1963 they obtained a deed for seven 'shares' from the executrix and sole devisee of his estate. The action under review here was brought to quiet the title to the property acquired by that deed. One of the issues presented is whether this deed vested title. In the light of the disposition that we make of this case, we do not pass upon this point.

Based upon amply sufficient evidence, which was not contradicted, the trial court found that those actually using water from the ditch diverted and used the full 25.22 cfs over the years 'whenever it was available, and diverted as much as they could at other times, subject to rights of senior appropriators.'

As stated, the complaint sought only to quiet title to the seven 'shares' acquired under the executrix's deed. The defendants in the action were users of the water adjudicated to the ditch or their predecessors in title. It is of some significance that junior appropriators on the stream were not joined as parties defendant. In its answer Denver denied many of the allegations in the complaint and, as its only other defense, pled that the water involved had been abandoned. At the conclusion of the trial Denver moved to amend its answer to plead adverse possession. The court denied this motion.

The trial court found that any abandonment would be only to the stream, but that abandonment had not been proven. The basis of the determination of the trial court is disclosed by the following conclusion of law made by it:

'Even though the owner of a water right May not have used the full quantity of water to which his share entitled him, if the excess water is used by the other owners in the ditch, there is no abandonment of the right. See Cache La Poudre Irrigation Company case, 25 Colo. 144, 53 Pac. 318.'

In the cited case (Cache La Poudre Irrigating Co. v. Larimer and Weld Reservoir Co.), a mutual ditch company was involved, and it was sought to enjoin a person who had purchased stock in the company from transporting water represented by such stock to lands not previously irrigated by waters from the mutual ditch company ditch. The following statements were made by Chief Justice Campbell:

'(The stockholders in the mutual ditch company) might, and in this case did, apportion the water among themselves. White v. (Farmers' Highline) Reservoir Co., 22 Colo. 191, 43 P. 1028. They could not waste it, or divert more than their necessities required; but junior appropriators are not concerned with the method of apportionment adopted by those entitled to its use, so long as the latter had a necessity for it, and actually used it, and diverted no more than the decreed priority. If one consumer did not need, or use, all that his stock entitled him to; or if, by sale of a portion of his lands, his necessity was less, or, as expressed by counsel, if he owned more water than land, he might lawfully sell the excess of water, or lease it, or permit his cotenants to use it, before any subsequent appropriation attached thereto, and of this junior appropriators may not complain.

'One tenant in common may preserve the entire estate held in common. This doctrine is applicable where the common estate is a water right, so long as the tenant in common has both the necessity for the use, and actually uses the water for a beneficial purpose. The extent to which the right may be preserved, of course, depends upon the amount so used, coupled with the necessity. Meagher v. Hardenbrook, 11 Mont. 385, 28 P. 451.'

It is apparent that the trial court here found that the remaining users in the ditch held the entire adjudicated priority for 25.22 cfs as tenants in common, and following Cache La Poudre Irrigation Co., applied the rule that use of an entire property right by less than all tenants in common thereof prevents abandonment by the nonusing tenants in common.

We make no comment as to whether any statement in Cache La Poudre Irrigating Co. has been or should be modified. We do not have a mutual ditch company involved in the instant matter, and we hold that the users of the water from the Crooked Creek Supply Ditch were not tenants in common of the water rights.

Excluding consideration of stockholders in mutual ditch companies, ordinarily, for persons to be tenants in common in an irrigation water right, they must be owners as tenants in common of the lands upon which...