Colorado River Water Conservation Dist. v. Rocky Mountain Power Co.

Decision Date19 April 1971
Docket NumberNo. 22812,22812
Citation486 P.2d 438,174 Colo. 309
PartiesThe COLORADO RIVER WATER CONSERVATION DISTRICT, Plaintiff in Error, v. ROCKY MOUNTAIN POWER COMPANY, a corporation, et al., Defendants in Error.
CourtColorado Supreme Court

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.

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 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 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 'Water Right Determination and Administration Act of 1969,' 1969 Perm.Supp., C.R.S.1963, 148--21--1 Et seq., provides that written protests stating '(t)he factual and legal grounds for the protest' shall be filed after entry of a referee's ruling. Thereupon, a hearing is provided for before the 'water judge,' followed by entry of judgment and decree. Appellate review may be had only as to that part of the decree which confirms a ruling with respect to which a protest was filed. 1969 Perm.Supp., C.R.S.1963, 148--21--20. The intent is manifest in the 1969 Act that only the protest need be filed in order to obtain appellate review by right.

Although the intent is less manifest in the 'old act,' cited Supra, under which this case must be decided, it is nonetheless apparent that its intent was to permit appellate review by right on the basis of the filed 'objections and exceptions' overruled by the trial court. To require in addition, a ruling based upon a motion for a new trial, which motion in most cases would be a repetition of the objections and exceptions, would be an unnecessary burden on the time of the trial court and the parties. As provided in C.R.C.P. 1, these rules must be liberally construed to secure the just, speedy and inexpensive determination of every action.

The cases cited by the Power Company in support of its argument for dismissal of this writ of error are readily distinguished. For example, in Noice v. Jorgensen, 151 Colo. 459, 378 P.2d 834, the issue was whether a motion for amendment of the court's findings under C.R.C.P. 52 would suffice as a motion for new trial under C.R.C.P. 59. The motion was made Subsequent to entry of judgment, as contemplated by C.R.C.P. 52. In the case at bar, the 'objections and exceptions' must be filed Before entry of the decree. In People ex rel. Dunbar v. South Platte Water Conservancy Dist., 139 Colo. 503, 343 P.2d 812, the statute precluded review by any method except a Quo warranto proceeding commenced by the attorney general.

II.

The Conservation District's claim to the 1954 date is based upon its assertion that survey work commenced by the Bureau of Reclamation in 1954 may be used as the so-called 'first step' of the Conservation District's perfection of its appropriation. See Four Counties Water Users Ass'n v. Colorado River Water Conservation Dist., 161 Colo. 416, 425 P.2d 259, cert. denied, 389 U.S. 1049, 88 S.Ct. 765, 19 L.Ed.2d 840, rehearing denied, 390 U.S. 976, 88 S.Ct. 1020, 19 L.Ed.2d 1197. Some background information is helpful at this point.

In 1949, a study of the Colorado River basin upstream from the City of Grand Junction was begun by Bureau of Reclamation to determine Potential water resources development. This study culminated in the publication in 1954 of the Cliffs-Divide Project Report. One page of the 124-page report was concerned with the 'White-Colorado...

To continue reading

Request your trial
17 cases
  • U.S. v. Bell
    • United States
    • Colorado Supreme Court
    • August 25, 1986
    ...proceedings under C.R.C.P. 81(a). Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980); Colorado River Water Conservation District v. Rocky Mountain Power Co., 174 Colo. 309, 486 P.2d 438 (1971), cert. denied, 405 U.S. 996, 92 S.Ct. 1245, 31 L.Ed.2d 465 (1972). Therefore, C.R.C.P. 15 applie......
  • State, Dept. of Natural Resources, Div. of Water Resources, State Engineer v. Southwestern Colorado Water Conservation Dist.
    • United States
    • Colorado Supreme Court
    • July 18, 1983
    ...by statute. Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980); see C.R.C.P. 81(a); cf. Colorado River Water Conservation District v. Rocky Mountain Power Co., 174 Colo. 309, 486 P.2d 438 (1971), cert. denied, 405 U.S. 996, 92 S.Ct. 1245, 31 L.Ed.2d 465 (1972) (water adjudications under p......
  • Lake Meredith Reservoir Co. v. Amity Mut. Irr. Co.
    • United States
    • Colorado Supreme Court
    • April 29, 1985
    ...Colorado Rules of Civil Procedure apply in water court proceedings. C.R.C.P. 81(a); Colorado River Water Conservation District v. Rocky Mountain Power Co., 174 Colo. 309, 312-14, 486 P.2d 438, 440-41 (1971). The statutes contain no special criteria or procedures concerning dismissal for fai......
  • State, Dept. of Ecology v. Theodoratus
    • United States
    • Washington Supreme Court
    • July 2, 1998
    ...Resources § 5.14, at 5-73 & 74 (1996) (footnote omitted) (alteration in original) (quoting Colorado River Water Conservation Dist. v. Rocky Mountain Power Co., 174 Colo. 309, 486 P.2d 438, 442 (1971), cert. denied, 405 U.S. 996, 92 S.Ct. 1245, 31 L.Ed.2d 465 (1972)). Here Theodoratus approp......
  • Request a trial to view additional results
2 books & journal articles
  • CHAPTER 7 WATER RIGHT LITIGATION1
    • United States
    • FNREL - Special Institute Natural Resources and Environmental Litigation (FNREL)
    • Invalid date
    ...Colo. 438, 484 P.2d 1211 (1971), hereinafter "Elk-Rifle." [24] Colorado River Water Conservation District v. Rocky Mountain Power Co., 174 Colo. 309, 486 P.2d 438 (1971). [25] Elk-Rifle, supra. [26] Central Colorado Water Conservancy District v. Denver, 189 Colo. 272, 539 P.2d 1270 (1975). ......
  • Appealing Driver License Revocations and Suspensions
    • United States
    • Colorado Bar Association Colorado Lawyer No. 7-7, July 1978
    • Invalid date
    ...P.2d 800 (1976); Brown v. Hansen, 177 Colo. 39, 493 P.2d 1086 (1972); Colorado River Water Conservation District v. Rocky Mountain Power, 174 Colo. 309, 486 P.2d 438 (1971); Hithe v. Nelson, 172 Colo. 170, 471 P.2d 596 (1970); Vigil v. Industrial Commission, 160 Colo. 23, 413 P.2d 904 (1966......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT