City and County of Denver v. Brown

• Decision Date: 03 November 1913
• Citation: 56 Colo. 216,138 P. 44
• Parties: CITY AND COUNTY OF DENVER v. BROWN et al.
• Court: Colorado Supreme Court

138 P. 44

56 Colo. 216

CITY AND COUNTY OF DENVER v. BROWN et al.

Supreme Court of Colorado, En banc.

November 3, 1913

Rehearing Denied Feb. 2, 1914.

Appeal from District Court, City and County of Denver; George W Allen, Judge.

Action by Samuel W. Brown and others against the City and County of Denver. From a judgment for plaintiffs, defendant appeals. Judgment vacated in part, and cause remanded, with directions.

H. A. Lindsley, City Atty., and Allen & Webster all of Denver, for appellant.

Crump &amp Allen, Goudy & Twitchell, S. A. Osborne, and D. R. Patterson, all of Denver, for appellees.

GABBERT J.

Appellee Brown, on behalf of himself and others similarly situated, commenced an action against the city and county of Denver and others, the purpose of which was to adjudicate rights to the use of water from a ditch designated in his complaint, 'The Platte Water Ditch,' but more generally known as the 'City Ditch.' Various consumers appeared and were made parties. The pleadings are voluminous, and it is not necessary to give a synopsis of them, as counsel for all parties have assumed that they fairly presented the question sought to be determined, which was the respective rights of consumers of water from the city ditch, and we shall treat them accordingly. Part of the testimony was taken before Judge Armour, and thereafter an order was made, appointing a referee, who, by stipulation, was authorized to consider the testimony taken prior to his appointment, and to receive and consider such further testimony as the parties offered, and from this testimony formulate his findings of fact and conclusions of law, and, based thereon, report a decree. He performed his duties in these respects. Some of the consumers other than the city and county of Denver, being dissatisfied with the report of the referee, filed exceptions to the report, which the court afterwards heard and sustained in many particulars, and entered a decree from which the city and county of Denver has appealed.

At the outset counsel for appellant contend that, as appellees did not file a motion for a new trial after the report of the referee was filed, the exceptions they filed should have been disregarded, and the decree recommended by the referee confirmed by the trial court, and for this reason the judgment should be reversed, and the case remanded, with directions to enter a decree in conformity with the one reported by the referee. We think it unnecessary to consider this question, and, in disposing of the case, will not consider questions of procedure and practice, the alleged disregard of which does not affect the substantial rights of the parties, but base our opinion upon questions involved which will tend in the greatest degree to enable a speedy and final disposition of the case upon its merits.

In 1860 the Capitol Hydraulic Company was organized under a special act of the territorial Legislature of Kansas. This act did not contain any limitation as to the period of the existence of the corporation it authorized to be created, and empowered it to divert the water from the bed of the South Platte river at any point selected between the Platte canon and the mouth of Cherry creek, and conduct the water so diverted to the cities of Denver, Auraria, and Highlands for mechanical, agricultural, mining, and city purposes. The purpose of the company was to construct a ditch to carry water to irrigate trees within the municipalities named, and also to furnish water to farmers cultivating land under the ditch. The construction of the ditch was commenced in 1865. In 1867 the name of the corporation was changed to the Platte Water Company. In 1875 or 1876 this company entered into a contract with the city of Denver, whereby it leased the ditch as then existing, with all its rights, privileges, and franchises, to the city, and also agreed to sell to the city the ditch and rights leased for the sum of $60,000, with interest, in six annual installments. These payments were made, and the city then became the beneficial owner of the ditch and such rights connected therewith as the vendor could convey. Prior to the commencement of the construction of the ditch, other ditches on the river were purchased by the original company. In 1883, under a statutory adjudication of water rights for the purpose of irrigation, the ditch was awarded priority No. 1, of date November 28, 1860, for so much water, 18 inches in depth, as would flow through a ditch having a grade of 4 1/2 feet to the mile, 10 feet wide on the bottom and 13 feet wide at the top; also two other priorities, dated respectively November 1, 1873, and March 7, 1881. It is not necessary, however, to state the volume awarded by these two priorities, as these matters are not material to any questions presented for determination at this time. It is the right to the use of water represented by these priorities which is involved.

The testimony introduced by the respective parties bearing on this subject is exceedingly voluminous, covering several thousand folios, and the abstract of the record proper and testimony consists of over 700 pages. It is evident the court disposed of the case upon an entirely erroneous theory, greatly to the prejudice of appellant, and perhaps other parties to the action, but, as the parties are numerous, and to go through the testimony with the care necessary to properly determine their respective rights would require a very considerable time, we shall only state in a general way so much of the testimony as may be necessary to direct attention to the material facts upon which the rights of the parties depend under the rules of law applicable, it being our purpose to merely declare, in connection with the principal facts, such principles of law as will serve to point out the errors committed and enable the trial court, from the pleadings and testimony reported by the referee, to determine the material facts in detail and render a correct decree.

At an early date individuals began to take water from the ditch for the purpose of irrigating lands. The water thus obtained was secured under contracts entered into from time to time between this class of consumers and the then owners of the ditch. These contracts were only for the irrigating season during the year they were executed; that is, they only covered the irrigating season for the year they were made. The testimony discloses that in many instances, at least, the use of water by these consumers was intermittent; that is, they would contract for and use it a year or so, and then cease to contract for or use it for a period, when they would again resume the use of water in the same intermittent way. On this testimony the court held that these consumers were in no wise affected by the contracts made with either the city or its predecessors, for the reason that they were appropriators, to all intents and purposes, from the river, with the right in the city to exact a reasonable compensation for carriage, and that the rights thus acquired vested and continued from the date the consumers or their predecessors first utilized water from the ditch unless lost by abandonment. Error is assigned on this ruling.

The original company was organized to divert and carry water for mechanical, agricultural, mining, and city purposes, but, so far as any question is involved in this case with respect to the priorities awarded it, we think it and its successors in interest, so far as the rights of the individual consumers are involved, must be treated as an irrigation canal company, carrying water for hire.

Such a company is a quasi public carrier for the purpose of conveying water from natural streams to places where it may be applied to a beneficial use. It is not the proprietor of the water which it is entitled to divert, but must be regarded as an intermediate agency existing for the purpose of aiding consumers in the exercise of their rights to appropriate water, as well as a private enterprise prosecuted for its benefit. Farmers' I. D. Co. v. Agricultural D. Co., 22 Colo. 513, 45 P. 444, 55 Am.St.Rep. 149; Wright v. Platte Valley I. Co., 27 Colo. 322, 61 P. 603; Wheeler v. Northern Colo. I. Co., 10 Colo. 582, 17 P. 487, 3 Am.St.Rep. 603; Wyatt v. Larimer & Weld I. Co., 18 Colo. 298, 33 P. 144, 36 Am.St.Rep. 280.

A consumer supplied with water by contract from a ditch owned and operated by a carrier company in a sense is an appropriator from the stream supplying the ditch, but does not occupy the exact status of an independent appropriator directly from the stream, as his rights are limited by the terms of his contract, so far as valid, with the ditch company, as well as other limitations which the law, from the nature of the relation between the carrier company and a contract consumer from its ditch, imposes. Wright v. Platte Valley I. Co., supra; City & County of Denver v. Walker, 45 Colo. 387, 101 P. 348.

Having contracted for and beneficially used for irrigation purposes a specific volume of water for any particular year, without any valid limitation as to future use, he would be entitled to the same volume each year succeeding, when needed for the purposes of irrigation, upon tender annually, without intermission, of the rate which the company could lawfully exact, and compliance with its rules and regulations so far as reasonable. Northern Colo. I. Co. v. Richards, 22 Colo 450, 45 P. 423; Section 2297, Mills' Ann. Stats. When, however, his contract expires by limitation and is not renewed, and he does not take the necessary steps to preserve the status growing out of his contractual relation with the carrier, his rights to a future use of water from the ditch cannot be based upon past use. In other words, his contract with the...