Colorado Mill. & Elevator Co. v. Larimer & Weld Irr. Co.

• Decision Date: 08 February 1899
• Citation: 26 Colo. 47,56 P. 185
• Parties: COLORADO MILLING & ELEVATOR CO. v. LARIMER & WELD IRR. CO. et al.
• Court: Colorado Supreme Court

56 P. 185

26 Colo. 47

COLORADO MILLING & ELEVATOR CO. v. LARIMER & WELD IRR. CO. et al.

Supreme Court of Colorado

February 8, 1899

Error to district court, Larimer county.

Action by the Colorado Milling & Elevator Company against the Larimer & Weld Irrigation Company and others. There was a judgment for defendants, and plaintiff brings error. Reversed.

By the pleadings, the issue was made between the plaintiff in error as plaintiff below, and defendants in error, as defendants in the trial court, as to which had the prior right to the use of water from Cache La Poudre river. The former claimed such right for power purposes; the latter, for irrigation, and, as an affirmative defense, pleaded the rendition of a decree in adjudication proceedings had in the district in which this stream is situate, averring that the predecessors of plaintiff, as the owners of the ditch through which it claimed its priority, as also the Larimer & Weld Irrigation Company, one of the defendants in error, participated in such proceedings, and that by such decree the priority of plaintiff's ditch was adjudged junior to that of the irrigation company. The evidence established the averments of this defense, and that such decree awarded priorities to the ditch of the Larimer & Weld Company for irrigation, and to that of plaintiff for power and domestic purposes. During the progress of the trial it was stipulated that, as between plaintiff and certain individual defendants, the latter should have judgment establishing their rights to the use of water for the irrigation of lands owned by them, as superior to those of the plaintiff, which narrows the controversy, so far as the defendants in error before this court are concerned, between the plaintiff and the defendant the Larimer & Weld Irrigation Company. Further evidence established that during certain seasons of the year this company was diverting water for storage purposes at times when the supply of water in the river was insufficient to furnish plaintiff's ditch with its appropriation after such diversion. The court expressly held that, by the adjudication proceedings, plaintiff in error was estopped from averring or proving anything contrary to the terms and conditions of such decree, and, basing its judgment entirely upon this conclusion, dismissed the action. Plaintiff assigns as error the judgment of the court in dismissing the action as to the irrigation company. On behalf of defendants in error it is contended that, under the provisions of section 6 of article 16 of the constitution, plaintiff in error cannot assert the right to water for power purposes as against those claiming it for agricultural uses. The evidence established that the rights of plaintiff attached as of date April 15 1867.

Robinson & Love, for plaintiff in error.

J. W McCreery, for defendants in error.

GABBERT J. (after stating the facts).

The conclusion of the trial court that plaintiff was estopped from averring or proving a state of facts contrary to the terms and conditions of the decree entered in the adjudication proceedings may be correct in the abstract; but it is not necessary to determine that proposition, because under the issues and the evidence, it was not the controlling one in this case, or the one upon which the rights of the parties alone depended. Conceding that this decree was res judicata between the parties, it was only so to the extent of the matters thereby adjudicated, namely, the right of the irrigation company to divert a given volume of water, not in excess of its needs, for the purpose of irrigation, in advance of the right of plaintiff to enjoy the volume of its appropriation for power and domestic purposes; but these were not the only rights involved. At certain seasons of the year the irrigation company diverted water for storage. This diversion so reduced the volume left in the stream that there was not sufficient remaining to supply that which plaintiff claims it has the right to divert. The appropriation of water for a specific purpose qualifies such...