Colorado River Water Conservation Dist. v. Rocky Mountain Power Co., 22812
| Docket Nº | No. 22812 |
| Citation | 486 P.2d 438, 174 Colo. 309 |
| Case Date | April 19, 1971 |
| Court | Supreme Court of Colorado |
Page 438
v.
ROCKY MOUNTAIN POWER COMPANY, a corporation, et al.,
Defendants in Error.
Rehearing Denied May 24, 1971.
[174 Colo. 311]
Page 439
Delaney & Balcomb, Kenneth Balcomb, Edward Mulhall, Jr., Glenwood Springs, for plaintiff in error.Charles F. Brannan and Williams, Erickson & Wallace, Wayne D. Williams, Denver, for defendant in error Rocky Mountain Power Co.
Cooley & Benner, Frank G. Cooley, Meeker, for certain defendants in error.
[174 Colo. 312] HODGES, Justice.
Plaintiff in error, Colorado River Water Conservation District, brings this writ of error to review a decree of the trial court in a supplemental general water rights adjudication. This decree gives the Conservation District an appropriation date of October 31, 1961 for its 'Flattops Project.' Defendant in error, Rocky Mountain Power Company sought and obtained in the same adjudication an appropriation date of September 7, 1957 for its 'Sweetwater Hydroelectric Project.' Each party entered a protest to the claim of the other. Upon entry of findings of fact by the trial court, the Conservation District filed its 'Objections and Exceptions to the Findings.' The court overruled these objections and exceptions and entered its decree.
The appropriation date obtained by the Power Company is not contested in this writ of error. The Conservation District's sole argument is that it should have received an appropriation date of June 28, 1954 for its 'Flattops Project.' This date precedes both the September 7, 1957 date obtained by the Power Company and the October 31, 1961 date which the Conservation
Page 440
District did obtain. We affirm the trial court's determination of October 31, 1961 as the appropriation date for the Conservation District's 'Flattops Project.'I.
The Power Company's motion to dismiss this writ of error was denied by this court on August 24, 1967 and the Power Company raises the motion again in its briefs before us. Basically, the contention is that the writ of error should be dismissed, since the Conservation District did not file a motion for new trial under C.R.C.P. 59. We reject this contention.
Colo.Const. art. VI, § 21 confers upon the supreme court the power to make rules governing practice [174 Colo. 313] in civil cases. The Rules of Civil Procedure apply to all civil cases specified in C.R.C.P. 1 except as 'stated in Rule 81.' C.R.C.P. 81(a) states that
'These rules do not govern procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the Applicable statute.' (Emphasis added.)
In the instant case, the Applicable statute (Colo.Sess.Laws 1943, ch. 190, § 11 (repealed 1969)) provided that upon the court's initial findings as to the priority date, the volume, the source, and the point of diversion, the parties were entitled to present 'objections and exceptions' to the court's findings prior to the entry of a decree by the court upon such findings.
The Conservation District on August 5, 1966 filed 'objections and exceptions' to the court's findings and after a hearing on the matter, the court entered an order overruling these objections and exceptions. On November 21, 1966, the trial court entered its decree in accordance with its findings of fact.
We hold that water adjudication proceedings are 'special statutory proceedings' as contemplated under C.R.C.P. 81. Cf. Westminster v. District Court, 167 Colo. 263, 447 P.2d 537; Boxberger v. State Highway Comm., 126 Colo. 526, 251 P.2d 920; See also Peterson, Rule-Making, 38 U.Colo.L.Rev. 137 (1966) and cases cited at n. 71 therein.
The purpose of the statutory provision allowing for the filing of 'objections and exceptions' to the findings of the court prior to the entry of the decree was to allow the fact finder the opportunity to reconsider the entire case before entering a decree based upon such findings. This reconsideration might well entail questions of law as well as fact. For example, the priority date is termed a 'finding' by the statute, but obviously, it must rest upon legal conclusions, such as, the 'first step' doctrine involved herein. The new...
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