City and County of Denver v. Sheriff

• Decision Date: 23 October 1939
• Docket Number: 14448.
• Citation: 96 P.2d 836,105 Colo. 193
• Parties: CITY AND COUNTY OF DENVER v. SHERIFF et al.
• Court: Colorado Supreme Court

96 P.2d 836

105 Colo. 193

CITY AND COUNTY OF DENVER v. SHERIFF et al.

No. 14448.

Supreme Court of Colorado, En Banc.

October 23, 1939

Rehearing Denied Dec. 4, 1939.

Error to District Court, Grand County; Charles E. Herrick, Judge.

Petition by the City and County of Denver against Charles Glen Sheriff and others for adjudication of water rights. To review adverse portions of the general water adjudication decree the petitioner brings error.

Remanded with directions to modify the decree in part, and in other respects affirmed.

Malcolm Lindsey, Dines, Dines & Holme, Glenn G Saunders, R. H. Walker, and Harold D. Roberts, all of Denver for plaintiff in error.

Frank Delaney, of Glenwood Springs, Moynihan-Hughes, of Montrose, and Tupper, Smith & Holmes, of Grand Junction, for defendants in error.

Erskine R. Myer, of Denver, and Harold B. Newrock, of Louisville, amici curiae.

OTTO BOCK, Justice.

This controversy relates solely to those portions of a general water adjudication decree affecting the alleged water rights of plaintiff in error, hereinafter referred to as the city.

March 1, 1918, the city acquired from the Denver Union Water Company, a water system which had for many years prior thereto served it and others as a private public utility. At that time the water sources of the system were the South Platte river and its tributaries. It is now known as the Denver Municipal Water System. In addition to the rights acquired from the Denver Union Water Company, the city acquired, prior to 1918, valuable water rights including decrees for irrigation. These rights are used in part for the irrigation of parks within the city limits of Denver and in part for the irrigation of land outside of Denver. Other rights in various irrigation ditches also have been acquired. The petition of the city to adjudicate is rights involved herein alleges claims of priorities for irrigation and for purposes other than irrigation from the Western Slope.

The present population served by the city's water system is approximately 350,000. It has been a constant and serious problem for the municipality to obtain sufficient and adequate water to supply its citizens and the area contiguous to the city which it is under legal obligation to serve. The water sources, with the exception of the projects involved in the instant case, have, as previously stated, been the South Platte river and is tributaries. The water flow in this river is extremely variable. The stream and the yield from the water rights of the city originating therefrom is far from uniform. Moreover, the population of the city and in the areas contiguous thereto is showing a healthy growth. In 1918, when Denver acquired its water system, the population was between 150,000 and 200,000. The population served by the system at this time is approximately 350,000. The city has not been unmindful of its obligation to seek further water sources for its growing needs. As early as 1914 its Public Utilities Commission made investigation through employed engineers. After the city acquired the Denver Union Water Company, and in 1921, it caused a location survey to be made for projects of Western Slope water, and particularly the Fraser river and Williams Fork diversion projects, these latter being involved in the instant case, and which the trial court decreed as of July 4, 1921, as the appropriation date. The filing of the map for these projects with the state engineer occurred January 28, 1922. The claims as filed seek water for irrigation as well as for domestic and other purposes. To bring water over the divide so that it may be applied to a beneficial use by the city, engineering and financial problems always have been a serious concern. Several futile attempts were made until the successful culmination in the organization of the Moffat Tunnel District in 1922, which provides two tunnels, one for rail transportation and a similar one for irrigation purposes. The tunnel commission continued work on the water tunnel until January 2, 1929, when it was turned over to the city by lease, under the terms of which provision was made that it be finished by the lessee and placed in operation to bring water to Denver. The expense of the construction of the water tunnel is estimated at $5,000,000. At the time of the trial it had a usable capacity of 600 second feet per second of time. When completed and lined its capacity will be 1280 cubic feet per second. In addition to the completion of the water tunnel by the city to a capacity of 600 second feet, it constructed various gathering ditches, conduits, diversion works, tunnels and pipe-lines necessary to bring the water to Denver at an expense of approximately $12,000,000. It is hoped that by this development about 74,000 acre-feet of water will be made available at a cost of approximately $160 per acre-foot, which it is asserted is a considerably higher sum than farmers could afford to expend for water for the irrigation of agricultural land.

The decree here involved is in three separate parts, the first relating to the Fraser river diversion project, the second to the Williams Fork diversion project, and the third to the Williams Fork reservoir. In view of the questions presented by the assignments of error, we deem it unnecessary to describe in detail these three projects, and we refer to them collectively as the Western Slope waters. As related to the Fraser river diversion project, the court found and decreed 'that the maximum rate of diversion of water through said project accomplished prior to the date of this decree is 335 cubic feet per second.' The balance of the appropriations are decreed conditionally upon actual diversion and storage within a reasonable time from the date of the decree to the maximum of 1280 cubic feet per second, this being the completed carrying capacity of the Moffat water turnel. No issue is here made as to time, volume or waster. Nor is there any conflict of priority of appropriation involved. The assignments of error raise but two questions, namely:

First, that the trial court, in giving the city its priorities from the Western Slope streams, made such priorities subject to unlawful and burdensome restrictive conditions; and,

Second, that the trial court denied the city any priorities whatever for general irrigation purposes.

In each of the three divisions of the decree we find the paragraph of which the city complains, as follows: 'Any waters decreed herein, whether decreed therefor to be for direct flow or for storage, and whether the said decree be absolute or conditional, be diverted, taken and used as supplemental to the decreed water rights now belonging to claimant, which said decrees are from the waters of the natural streams of the State of Colorado and that the said claimant be required to satisfy its needs for waters from said existing decrees owned by it Before it shall be held to require or need waters herein decreed or shall be entitled to take the same. That the waters herein decreed shall be held by the said claimant as a water supply supplemental to its present supply of water available under water decrees which the said claimant now holds and to be used only to the extent necessary to fill the needs and requirements of the claimant for municipal purposes, after it has made full and economical use of the waters available to it under water decrees now owned by it.'

At the outset it is well to reiterate what we said in Conley v. Dyer, 43 Colo. 22, at page 28, 95 P. 304, at page 306, relating to established legal principles as applied to water rights: 'No principle in connection with the law of water rights in this state is more firmly established than that the application of water to a beneficial use is essential to a completed appropriation. Compliance with the law in other respects, that is, the filing with the clerk and recorder of the requisite plats and notices, the commencement and construction of the ditch or canal with due diligence, and even the actual diversion of water from the natural stream--all of these acts unaccompanied by the beneficial use of the water constitute but an inchoate right or interest. And unless such beneficial use follows the interest thus acquired does not ripen into an appropriation, the inchoate right terminates, and the water goes to junior claimants who have complied with all the requirements of law. Moreover it is equally well settled that in order to give the appropriation a priority dating from the commencement of the ditch or canal the beneficial use of the water must take place within a reasonable time from such date. What shall constitute this reasonable time depending upon the facts and circumstances connected with each particular case.'

It will be noted that the restrictions relate to 'water decrees now owned by it,' being the Eastern Slope water rights, and 'any waters decreed herein' being the Western Slope water rights.

We shall first discuss these restrictive conditions to the decrees of the city as they relate to its Eastern Slope water rights. These appropriations are all based upon unconditional and absolute decrees. That they take on the attribute of property rights cannot be questioned. Counsel for defendants in error do not question this. This carries with it the right, under certain circumstances, to lease, sell and convey title. Fort Lyon Canal Co. v. Rocky Ford Canal Reservoir, Land, Loan & Trust Co., 79 Colo. 511, 515, 246 P. 781; La Plata River & Cherry Creek Ditch Co. v. Hinderlider, 93 Colo. 128, 25 P.2d 187; Monte Vista Canal Co. v. Centennial Irr. Ditch Co., 22 Colo.App. 364, 123 P. 831; Wyatt v. Larimer & Weld Irr. Co., 1 Colo.App. 480, 29 P. 906; Strickler v. Colorado Springs, 16 Colo. 61, 26 P. 313, 25 Am.St.Rep....