City of Westminster v. Church, s. 21405

• Decision Date: 16 September 1968
• Docket Number: Nos. 21405,21667,s. 21405
• Citation: 445 P.2d 52,167 Colo. 1
• Parties: CITY OF WESTMINSTER, Plaintiff-in-Error, v. Marcus F. CHURCH, Marcus F. Church, Trustee, The Mandalay Irrigation Company, a mutual ditch company, and the City of Broomfield, a municipal corporation, Defendant-in-Error.
• Court: Colorado Supreme Court

Page 52

445 P.2d 52

167 Colo. 1

CITY OF WESTMINSTER, Plaintiff-in-Error, v. Marcus F. CHURCH, Marcus F. Church, Trustee, The Mandalay Irrigation Company, a mutual ditch company, and the City of Broomfield, a municipal corporation, Defendant-in-Error.

Nos. 21405, 21667.

Supreme Court of Colorado, En Banc.

Sept. 16, 1968.

John B. Barnard, Jr., Boulder, for plaintiff in error.

Fairfield & Woods, Charles J. Beise, Charles E. Matheson, Denver, for defendants in error Marcus F. Church and Marcus F. Church, Trustee.

Raphael J. Moses, George Vranesh, Boulder, for defendants in error City of Broomfield and Mandalay Irr. Co.

DAY, Justice.

Two writs of error have been consolidated in this court for decision. Both actions involve water rights of the respective parties.

The action was commenced by Marcus Church, The Mandalay Irrigation Company and the City of Broomfield, as plaintiffs, in the Boulder district court against the City of Westminster. Plaintiff in error will hereinafter be referred to as Westminster or defendant, and we will refer to the other parties by name or as plaintiffs.

Plaintiffs sought declaratory judgment and prayed for a decree:

(a) Declaring an abandonment of certain water rights in Coal Creek owned by the defendant Westminster;

(b) Limiting the use of Westminster's rights to historical consumption; and

(c) Restraining Westminster from interfering with plaintiffs' rights as junior appropriators of the Coal Creek waters.

At the commencement of the action, plaintiff City of Broomfield moved for a preliminary injunction restraining Westminster from diverting more than a fixed quantity of water pending entry of final judgment. To the district court order granting the preliminary injunction, Westminster brought writ of error (No. 21405) to this court.

On the main issues, plaintiffs subsequently moved with supporting affidavits and depositions for summary judgment under R.C.P.Colo. 56. The trial court granted a partial summary judgment declaring that defendant's proposed use of its water rights would result in an increased burden on the stream to the plaintiffs' injury, and barring Westminster from using its water rights in any manner other than had been historically used. The district court reserved for trial the factual issue of the extent of historical use, and upon conclusion of that phase entered a final decree defining the defendant's rights. Defendant sued out writ of error (No. 21667) directed to that decree. We have consolidated the two writs in this proceeding.

Water rights involved herein were purchased by Westminster from Frank Rodgers and Carrie Rodgers in 1963. Under the terms of the conveyance Westminster acquired legal title to direct flow and storage water rights described as follows:

Direct Flow Water Rights

(a) From the headgates of the Last Chance Ditch

(i) A seven-tenths interest in the Last Chance Ditch and the water right decreed thereto, being Priority No. 6 from Coal Creek in the amount of 10.78 c.f.s., with priority date of May 1, 1870;

(ii) Eighteen c.f.s. originally decreed to the McKenzie Ditch Priority No. 4 with date of June 1, 1866;

(iii) Fifty inches, or 1.302 c.f.s., originally decreed to the Eggleston Ditch No. 2, Priority No. 3, with date of May 1, 1862;

(b) From the headgate of the Autrey and Eggleston Ditch

(i) Priority No. 1 with date of June 1, 1860, originally decreed as 4.16 c.f.s., but entitled to only 1.22 c.f.s. under the 1958 decree in Civil Action 14000;

Storage Water Rights

(a) Last Chance Reservoir No. 1, Priority No. 3, dated April 1, 1872, for 45.5 acre-feet;

(b) Last Chance Reservoir No. 1, first enlargement, Priority No. 7, dated September 15, 1885, for 24.1 acre-feet;

(c) Last Chance Reservoir No. 2, Priority No. 4, dated April 1, 1876, for 68.2 acre-feet;

(d) Last Chance Reservoir No. 2, first enlargement, Priority No. 6, dated September 15, 1884, for 43.3 acre-feet.

The record discloses that Rodgers and their predecessors in interest had used these water rights for agricultural purposes; and further, they at no time had diverted water to the full extent of their decreed priorities.

In 1958 the Rodgers had purchased the aforementioned direct flow rights in the Eggleston No. 2 Ditch and the McKenzie Ditch from John Jenkins. By the terms of that conveyance, the Rodgers acquired Jenkins' decreed rights for 4.65 c.f.s. from the Eggleston No. 2 Ditch, and for 18.0 c.f.s. from the McKenzie Ditch. The Rodgers then filed a petition in the Boulder County district court to change the point of diversion of these rights, together with the Autrey and Eggleston Ditch rights, from the headgates of the three ditches to the headgate of the Last Chance Ditch.

Although a number of junior appropriators entered appearances in this diversion proceeding, entitled Civil Action 14000, to oppose the Rodgers' petition, the plaintiffs did not. Nevertheless as interested parties and owners of water rights in Coal Creek, they were duly served with notice of the proceeding. Under the provisions of C.R.S. 1963, 148--9--23, they were parties to that proceeding for change of point of diversion and are bound by the decree. Farmers Highline Canal & Reservoir Co. v. City of Golden, 129 Colo. 575 272 P.2d 629. This decree on stipulation of facts and conditions between the Rodgers and the appearing protestants makes the following adjudication:

'* * *

'(1) That all of the water right previously decreed by this Court to the Autrey and Eggleston Ditch * * * for 4.16 cubic feet of water per second * * * with the exception of 1.22 cubic feet of water per second, is hereby declared to be abandoned to the stream.

'(2) That the petition to transfer the point of diversion for the remaining 1.22 cubic feet of water per second * * * is hereby denied.

'(3) That fifty (50) inches of the water right previously decreed by this Court to the Eggleston Ditch No. 2 * * * is found not to have been abandoned, and the petition filed herein to change the point of diversion * * * is hereby granted.

'(4) That none of the water rights previously decreed by this Court to the McKenzie Ditch * * * for eighteen (18) cubic feet of water per second * * * has heretofore been abandoned, and the petition filed herein to transfer the point of diversion for all of said water right * * * is hereby granted.'

I.

Westminster first contends that the 1958 decree is a complete bar to plaintiffs' suit and that the court erred in refusing to dismiss the action upon the grounds of Res judicata. We do not agree. Res judicata constitutes an absolute bar only when there is in both the prior and subsequent suits identity of subject matter, identity of the cause of action, identity of parties to the action, and identity of capacity in the persons for which or against whom the claim is made. Hizel v. Howard, 144 Colo. 15, 354 P.2d 611; McDermott v. Bent County Irrigation District, 135 Colo. 70, 308 P.2d 603; Newby v. Bock, 120 Colo. 454, 210 P.2d 985.

In the case at bar the action sought to enjoin Westminster's alleged extended use of its decreed water right--clearly a different cause of action and different subject matter not presented in a proceeding to change a point of diversion. The subject matter of the instant action also seeks to adjudicate water storage rights in the Last Chance Reservoirs, as well as the direct flow rights in the Last Chance Ditch, and these rights were in no way adjudicated in the 1958 action. Further, plaintiffs' cause of action concerns anticipated damages arising from defendant's change in method and purpose of use from the pre-existing intermittent flow for irrigation purposes to a continuous flow for storage for a municipal water supply. The 1958 proceeding was limited to damages to those to be affected by any change in point of diversion. Where an owner of decreed rights, after obtaining a decree permitting a change in point of diversion, enlarges or attempts to enlarge the use of his water rights to the injury of other appropriators, the permissive decree does not bar relief to the latter. Dry Creek No. 2 Ditch Co. v. Coal Ridge Ditch Co., 109 Colo. 556, 129 P.2d 292; New Cache La Poudre Irrigating Co. v. Water Supply & Storage Co., 74 Colo. 1, 218 P. 739.

In Pomponio v. Larsen, 80 Colo. 318, 321, 251 P. 534, 536, this court stated that:

'The best and most accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties, according to the authorities, is whether the same evidence would sustain both, and if it would the two actions are the same, and this is true, although the two actions are different in form. * * *.'

See Newby v. Bock, supra; Sloniger v. Rains, 120 Colo. 339, 208 P.2d 941.

The decree in Civil Action 14000, by this test, does not bar prosecution of the instant action. Plaintiffs' evidence submitted in the action now before us established historical non-use by the Rodgers and a prospective enlarged use by the City of Westminster. In the 1958 diversion proceeding the decree does make certain findings relating to abandonment, but this is not the same subject as non-use of full decreed rights nor did the evidence at that time refer to Westminster's enlarged use--matters then only speculative as to what Westminster would do and irrelevant to the question of change of point of diversion.

We conclude, therefore, that the decree in Civil Action 14000 did not immunize the City of Westminster against subsequent equitable actions by junior appropriators designed to maintain the historic level of use by the City of its decreed rights.

II.

Defendant contends that if the suit is not completely barred, the issue of historical non-use of the direct flow water rights by Jenkins was adjudicated in the 1958 diversion proceeding, and that the district court in the instant action was bound by the decree therein. Concededly, the question of Jenkins' abandonment of the decreed rights in the McKenzie, Eggleston No. 2 and the Autrey...