Comstock v. Larimer & Weld Reservoir Co.

• Decision Date: 07 December 1914
• Docket Number: 7582.
• Citation: 145 P. 700,58 Colo. 186
• Parties: COMSTOCK, State Engineer, et al. v. LARIMER & WELD RESERVOIR CO.
• Court: Colorado Supreme Court

145 P. 700

58 Colo. 186

COMSTOCK, State Engineer, et al. v. LARIMER & WELD RESERVOIR CO.

No. 7582.

Supreme Court of Colorado, En Banc.

December 7, 1914

Rehearing Denied Jan. 4, 1915.

Error to District Court, Larimer County; Harry P. Gamble, Judge.

Suit by the Larimer & Weld Reservoir Company against Charles W Comstock, as State Engineer, and others. Decree for plaintiff, and defendants bring error. Reversed and remanded with directions.

James W. McCreery and Donald C. McCreery, both of Greeley, and L. C. Stephenson and Stoten R. Stephenson, both of Ft. Morgan, for plaintiffs in error.

L. R Rhodes and R. W. Fleming, both of Ft. Collins, for defendant in error.

BAILEY J.

The Larimer & Weld Reservoir Company, a corporation, defendant in error here, plaintiff below, on October 26, 1910, filed its complaint against the State Engineer, the Division Engineer of Water Division No. 1, and the Water Commissioner of Water District No. 3. Later, after sundry preliminary steps, an amended complaint was filed, setting forth the right of plaintiff to divert water for storage purposes from the Cache la Poudre river, under an appropriation dated the 3d day of June, 1890, for 225,000,000 cubic feet of water, and one of date the 1st day of April, 1895, for an additional 100,000,000 cubic feet of water, decreed October 28, 1909, in Water District No. 3, by the Larimer County District Court; that at the time of filing the complaint large quantities of water were passing the headgate of its inlet canal; that no requirement existed for the use of this water for direct irrigation, either in Water District 3 or elsewhere; that plaintiff was entitled to store such water under its appropriation in its reservoir; that the official defendants arbitrarily refused to allow it to do so. It was further alleged in the complaint:

'That in Water District 3 there are, and for more than twenty years have been, two well defined and recognized periods of time each year for the use of water flowing in the Cache la Poudre river and its tributaries; * * * that the use of water for direct irrigation commences on or about the 15th day of April of each year and terminates on or about the 15th day of September of each year, and from the 15th day of September of each year until the 15th day of April of the following year the water of said river and its tributaries can only be used economically for storage; * * * that for more than twenty years preceding the commencement of this action, the waters of said river and its tributaries have been, by commonconsent, so used; that all rights of appropriation of any of said waters for any purposes other than for storage, ceased and determined on the 15th day of September, 1910; and that such other rights have not been, and will not be, in force and effect until the waters of said river and its tributaries are needed and required to irrigate crops planted and growing during the coming season of 1911.'

It was further alleged:

'That on May 28, 1910, Division Engineer Cogswell issued an order to J. L. Armstrong, Water Commissioner for Water District No. 3, as follows: 'Water is needed for direct irrigation in districts numbered 8, 2, 1 and 64; you are hereby ordered to cease all storing of water in your district until further notice from this office. Water must not be wasted into reservoirs at the lower end of ditch when the reservoir is not entitled to storage water, but the excess water should be shut off the ditch at the headgate. In case of heavy rains or floods report to this office immediately by phone at my expense.''

The complaint further states, in effect, that this order was renewed on the 1st day of September, 1910, and was then in full force and effect; that at no time covered by said order was there any demand in said district for such order, or for the delivery of water, but that such order was uncalled for and an assumption of authority and power on the part of said defendants; that if there is any person, company or association making any claim or demand whatever for water for direct irrigation, such claim and demand is illegal and unjust; that since the 15th day of September, 1910, there has been, and until the 15th day of April, 1911, there will be, no need or demand for water for direct irrigation in either Water District No. 1 or 64 and that any such use of such water would be wasteful and not an economical or beneficial use, and would be contrary to law.

The complaint concludes with a prayer for a perpetual injunction against the official defendants and their successors in office, restraining them from enforcing the order complained of, and also for a decree to the effect that in Water District No. 3, the Cache la Poudre river and its tributaries, the direct or immediate irrigation period commences on the 15th day of April of each year, and extends to the 15th day of September of each year, and that the storage season therein commences September 15th of each year and ends April 15th of the succeeding year.

The original defendants, the water officials, answered, alleging that they are public officers charged with the distribution of water of the public streams, according to the order of priority as fixed by judicial decrees; that in the exercise of their official duty they had conformed, as advised, to the law in all respects without favor or discrimination; that the Division Engineer had made the order set forth in the complaint; that said order was in full force and effect, but subject at all times to change and modification when advised that the flow of water in the streams would permit storage, and that they, and neither of them, were parties in interest in the proceedings, were neither owners nor appropriators of water of the streams, but were acting solely in the exercise of the police power co ferred by statute in that behalf, and pursuant to previous orders of the court; that appropriators of water for direct irrigation in Water Districts 1 and 64 were claiming and demanding the right to use the water in the South Platte river under and by virtue of their several prior appropriations. All other averments of the complaint were denied on information and belief.

The plaintiffs in error here, who are direct irrigators, made defendants by order of court, filed answer to the amended complaint, seting up several defenses: First. That their rights as appropriators of water from the Platte river in Water District No. 1 are superior in point of time and use to the appropriation of the plaintiff for storage purposes; their present needs of the same for direct irrigation; their use and enjoyment of water under and pursuant to their several decrees, and admitting the issuance of the order complained of, as set forth in the complaint; they denied the alleged superior rights of plaintiff, and also the existence of a custom or law fixing a storage season anywhere as against a diversion of water by prior appropriators for beneficial uses; Second. That the amended complaint does not state facts sufficient to constitute a cause of action, or show the priority of the appropriation claimed and set forth by plaintiff or the appropriations of the several answering defendants, and also that the court was without jurisdiction to proceed to the determination of the cause, because the appropriators of water for direct irrigation in the several other water districts of that division are not joined as defendants, being necessary and indispensable parties; and, Third. For an affirmative answer and defense, that they are direct irrigators in Water District No. 1, from the Platte river, setting forth fully and specifically their rights and dates of decreed appropriation, and the use of all water that could be obtained under their several appropriations at all seasons of the year for direct and beneficial use in the irrigation of their lands and crops, and that they had been in such enjoyment and use of their respective appropriations and rights ever since their said several appropriations were made and decreed. By replication issue was joined upon all new matter set up in the answer.

A careful analysis of the allegations of the complaint leads to the irresistible conclusion that the real object of the action was to have the court enter a decree dividing the year into two seasons, one for direct irrigation, and the other for the storage of water, and the court gave relief substantially as prayed. The effect of the decree was to declare and fix, in the territory involved, the season in which direct irrigation, so called, might be practiced, and the season, or portion of the year, when waters flowing in the natural streams must be wholly surrendered by direct irrigators to storage purposes. In short, the suit was a proceeding to compel by injunction the official defendants to furnish water for storage, regardless of the priorities or actual necessities of appropriators for direct irrigation, on the ground that in any event all right to the distribution of water for direct irrigation ceases during the period from the 15th day of September of each year to the 15th day of April next thereafter. Upon a full consideration of the averments of the complaint it is impossible to reach any other conclusion than that this was not only the primary, but the sole object of the action.

The sufficiency of the amended complaint was challenged on the grounds: First. That necessary and indispensable parties were not joined as defendants; Second. That no facts were pleaded by which it was made to appear that the official defendants were acting in excess of the authority conferred upon them by law; and, Third. That no facts were pleaded from which it appeared that the priority of appropriation claimed by plaintiff was prior to...