City of Boulder v. Boulder & Left Hand Ditch Co.
| Decision Date | 13 December 1976 |
| Docket Number | No. 26996,26996 |
| Citation | 557 P.2d 1182,192 Colo. 219 |
| Parties | The CITY OF BOULDER, Colorado, a Municipal Corporation, Plaintiff-Appelant, v. The BOULDER AND LEFT HAND DITCH COMPANY, a Mutual Ditch Company, et al., Defendants-Appellees. |
| Court | Colorado Supreme Court |
Walter L. Wagenhals, City Atty., Moses, Wittemyer, Harrison & Woodruff, P.C., Raphael J. Moses, Boulder, for plaintiff-appellant.
Hutchinson, Black, Hill, Buchanan & Cook, James W. Buchanan, Vranesh & Musick, Boulder, J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., David W. Robbins, Donald H. Hamburg, Asst. Attys. Gen., for defendants-appellees.
The City of Boulder (Boulder) filed a complaint in the District Court of Water Division No. 1 (court) against The Boulder and Left Hand Ditch Company (Left Hand) and the North Boulder Farmers Ditch Company (Farmers). Boulder requested injunctive relief against the transportation of water for use in another watershed. The court sustained the defendants' motion to dismiss on the ground that the complaint did not state a claim upon which relief could be granted. We reverse.
The facts here set forth are taken from the allegations of the complaint. We follow the familiar rule that, as to a motion to dismiss a complaint, facts well pleaded in the complaint, facts well admitted. Each of the parties is a decreed appropriator of water out of Boulder Creek. Left Hand and Farmers are mutual ditch companies. Their decrees are for irrigation and are prior to that of Boulder.
The ditch of Farmers (Farmers Ditch) has been used for more than 100 years for the irrigation of lands in the Boulder Creek watershed and the return flow from such irrigation proceeds to Boulder Creek.
The water decreed to the ditch of Left Hand (Left Hand Ditch) for almost 100 years has been used upon lands, the return flow of which returns largely to Dry Creek and South St. Vrain Creek. 1
The two mutual ditch companies have the same point of diversion out of Boulder Creek, being within the city limits of Boulder, and they utilize a common lateral for the first one and one-half miles from the point of diversion. Then, the ditch of each company proceeds from the lateral to the respective irrigated area served by each.
During the irrigation season, with the consent of Farmers, Left Hand is diverting and transporting in its ditch some of the water decreed to Farmers. 2 If this diversion were not made, the historic return flow therefrom would be used by appropriators out of Boulder Creek, upstream from its confluence with South St. Vrain Creek. Absent this return flow Boulder must permit the same portion of its decreed water to remain in Boulder Creek in order to satisfy the decree of these intervening appropriators.
There has been no decree permitting the change of place of use of the water involved. In the absence of such a decree, the plaintiff contends that it is entitled to injunctive relief whereby Left Hand would be prohibited from diverting the water from the watershed in which it has been historically used.
The fundamental basis for the dismissal of the complaint by the water judge was the rulings of this court in Metro Denver Sewage v. Farmers Reservoir, 179 Colo. 36, 499 P.2d 1190 (1972), and Tongue Creek v. Orchard City, 131 Colo. 177, 280 P.2d 426 (1955). For reasons which we will later elaborate, these cases are distinguishable.
It has been fundamental law in this state that junior appropriators have rights in return flow to the extent that they may not be injured by a change in the place of use of the irrigation water which provides that return flow. The basic principles were stated in Farmers Highline Canal v. Golden, 129 Colo. 575, 272 P.2d 629, 631 (1954), as follows:
'There is absolutely no question that a decreed water right is valuable property; that it may be used, its use changed, its point of diversion relocated; and that a municipal corporation is not precluded from purchasing water rights previously used for agricultural purposes and thereafter devoting them to municipal uses, provided that no adverse effect be suffered by other users from the same stream, particularly those holding junior priorities.
Farmers Highline stands for the proposition that any change of use will be granted only upon conditions which will prevent injury to junior appropriators. See Brighton Ditch Co. v. Englewood, 124 Colo. 366, 237 P.2d 116 (1951); Enlarged Southside Ditch Co. v. John's Flood Ditch, 116 Colo. 580, 183 P.2d 552 (1947); Fort Collins Milling Co. v. Larimer and Weld Irr. Co., 61 Colo. 45, 156 P. 140 (1916); and Vogel v. Minnesota Canal Company, 47 Colo. 534, 107 P. 1108 (1910). For present statutory provisions under the Water Right Determination and Administration Act of 1969, See sections 37--92--103(5), 304(3) and 305(3), C.R.S.1973. The substantive law here involved has not been changed by this statute.
The basic fallacy in the ground of decision used by the water judge is his statement, 'there is no distinction . . . between waste water from irrigation and return flow water from irrigation . . ..' A typical example is that of the irrigator who turns water into individual furrows traversing his field. That portion which is not absorbed into the earth or transpires remains in the furrow at the end thereof, and is collected in a waste ditch. The contents of the waste ditch is waste water. When this waste water so collected runs in the waste ditch to the stream, the law is that one who appropriates the waste water from the stream cannot assert a right to have the irrigator continue to discharge the waste water into the stream. In Tongue Creek v. Orchard City, supra, Mr. Justice Lindsley aptly qroted from Kinney on Irrigation and Water Rights, 2nd ed., volume 2, page 1151, section 661:
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