Comstock v. Ramsay

• Decision Date: 02 June 1913
• Citation: 133 P. 1107,55 Colo. 244
• Parties: COMSTOCK, State Engineer, et al. v. RAMSAY.
• Court: Colorado Supreme Court

133 P. 1107

55 Colo. 244

COMSTOCK, State Engineer, et al. v. RAMSAY.

Supreme Court of Colorado, En Banc.

June 2, 1913

Appeal from District Court, Weld County; James E. Garrigues, Judge.

Action by C. H. Ramsay against Charles W. Comstock, State Engineer and others. Judgment for the plaintiff, and defendants appeal. Reversed and remanded with directions to dismiss.

Benjamin Griffith, Atty. Gen., Stephenson & Work of Ft. Morgan, and Goudy & Twitchell, and J. H. Burkhardt all of Denver, for appellants.

John T Jacobs, of Greeley, for appellee.

BAILEY J.

The contest is over seepage waters, and the right to use the river channel as a way through which to carry them. The site of the dispute is on the South Platte River, a short distance down the stream and east of the town of La Salle, in Weld County. The land upon which these waters accumulate is a strip of river bottom, varying in width from one-half to three-fourths of a mile and comprising several hundred acres, situated in water district No. 2. The bank of the river along which this land lies has been built up by accumulations from the river of silt and débris, until it is slightly higher than the land itself immediately adjacent thereto and extending back to the mesa.

The testimony shows that at an early day, prior to any extended irrigation in that vicinity, this land was comparatively dry in low water times, but when the river was high it was frequently overflowed, the waters of the river passing over it, covering at times practically all of this land except the higher portions, along the bank and immediately next to the channel of the river; and that in wet seasons there would be water in the sloughs or depressions in the bottom, having a general drainage with the course of the river, toward a point at or near the headgate of the Highland Ditch, some two or three miles down the stream. The evidence shows that the flow of water in this course is undoubted, the slope of the land being toward the river in a diagonal direction to the northeast. About the year 1878 an irrigating ditch, known as the Lower Latham, was constructed upon the upper or second bench lands, immediately above and south of the bottom lands referred to. A little later the Union, another irrigating ditch, was constructed south and west of the Lower Latham Ditch. In 1890 a large irrigating reservoir, known as the Lower Latham Reservoir, covering six or seven hundred acres, was constructed immediately south of these lands, some two miles away, and higher than the two ditches above described. These ditches and the reservoir take their supply of water from the South Platte River. The testimony shows that as irrigation became general upon the mesa above from the Union and Latham ditches, seepage soon appeared upon the bottom lands and increased each year until 1890 and 1891, when the land was largely seeped and swampy, and a portion of it had grown up in cat-tails and swamp grass and was unfit for cultivation. After the Lower Latham Reservoir was constructed, seepage upon this land began to largely increase. It became very heavy and destructive. Water flowed upon the land to a depth of three or four feet in places, and covered more than two hundred acres of it. Some time in 1894, a man by the name of Joshua New purchased a portion of the land lying just above the headgate of the Highland Ditch, which is about four miles down the river from the headgate of the Lower Latham Ditch, and constructed a dike across the south end of this land to prevent the seepage water and the river overflow coming upon it, and cut a ditch or channel through the bank of the river just above the dike, so the water accumulating above it could flow through to the river. Some of the water apparently did pass through this cut for several years, but the ditch became more or less filled up and did not serve to adequately drain the accumulated surface water.

This bottom land is underlaid with the ordinary coarse river sand and gravel, and undoubtedly, as indicated by the evidence, was once a part of the regular river channel. The soil upon top of this river sand and gravel is not of great depth, varying from none at all, at points where the sand and gravel itself appears on the surface, to a depth in places of three to four feet. This land is from five to six feet higher than the surface flow of the river at normal stage.

Generally during the months of July, August and September of each year, as shown by the testimony, the South Platte River is very low, and in the use of its waters for irrigation the entire flow is diverted at the headgate of the Lower Latham Ditch, which is taken out of the river some two and one-half or three miles above this land; but notwithstanding such total diversion of the flow of the river there is sufficient return water to the stream, by seepage through the sands and gravel, to make from twenty-five to thirty-five second cubic feet of surface flow at a point immediately above the headgate of the Highland Ditch, a distance down the river from the Lower Latham headgate, as already indicated, of about four miles. This shows a return of something over six second cubic feet of water to the mile. By reason of this return flow there is and has been for many years sufficient water in the river to supply the priorities awarded to the Patterson Ditch, just above the Highland, and the Highland Ditch itself, both of which are senior to the second priority awarded to the Lower Latham Ditch; yet the Lower Latham, by reason of such return waters, has never been required, since 1883, to turn down any water from its dam to supply earlier priorities diverting water below this bottom land. All the waters of the South Platte River have been appropriated, and the entire normal flow of the river is inadequate to supply the priorities for irrigation purposes already decreed from it. There is no natural stream flowing into the river between the headgates of the Lower Latham and Highland Ditches. All the water found at the headgate of the Highland Ditch, after the Lower Latham Ditch has diverted the entire flow of the stream, must be return, seepage and waste water, coming, undoubtedly, in a large measure, from the seeped bottom lands under consideration.

In 1907 Messrs. Gordon and Varvel, who were owners of a portion of this bottom land, completed the construction of a ditch, practically through the center of the land and paralleling the river, commonly known as the Gordon and Varvel Seepage Ditch, for the purpose of draining those lands and acquiring the right to the use for irrigation of the waters taken from them. The drainage ditch is not to exceed three-quarters of a mile from the river at its farthest point, and at other places comes within a fifth of a mile of it. These parties also procured deeds from some of the owners of lands adjoining theirs, conveying to them all their right to the seepage, drainage and percolating waters on such adjacent lands, and also rights of way across them for seepage ditches. This seepage ditch, therefore, was constructed not only on the Gordon and Varvel land, but as well on the lands of adjacent owners. It is admitted that, because of the physical condition which obtains in reference to these lands, the seepage waters in question cannot be used to irrigate them, but that the only manner in which they can be applied to a beneficial use is by discharging them into the South Platte River, using the river as a carrier, and diverting them at a point down the stream, where they could be used to advantage in irrigating land which is without a proper water supply.

Below the Latham headgate the Patterson and Highland Ditches, in district No. 2, having decreed priorities, take practically all of the water of the river coming to their respective headgates. Between their headgates and the east line of water district No. 2 from fifteen to twenty feet accumulate in the South Platte River, by return and seepage water, and at such east line of water district No. 2 about twenty feet come into the South Platte from the Poudre River, which accumulates in the latter river by return and seepage water below the headgate of the Ogilvy Dam, which is the lowest ditch taking water from the Poudre River.

The ditches taking water from the South Platte River in district No. 1, immediately below district No. 2, all have priorities of such junior date that they are bound to rely, during the low water season, for their supply upon the waters coming into the river below the Highland headgate and from the Poudre River below the Ogilvy headgate, and the other accumulations to South Platte after it passes into district No. 1. This water supply is not sufficient to furnish the decreed priorities in district No. 1, and in fact the testimony shows that many of the larger ditches are closed during the low water period. It is also worthy of notice that about one hundred and fifty second cubic feet of water is required to flow out of district No. 1 and into district No. 64, the next district down the river, to supply earlier priorities in the latter district. It is, therefore, apparent that any interference with the tributaries to, or the taking of the supply of water from, the South Platte River at the point mentioned would have an injurious effect upon the appropriators of water from the river below with priorities already decreed.

Ramsay appellee here, plaintiff below, had a tract of dry land under the Duel and Snyder Ditch, diverting water from the South Platte River at a point near Fort Morgan, in water district No. 1. This seepage water, and whatever right they had to the use of the river to carry it, together with their rights of way for the seepage ditch across the bottom land in question, was by Gordon and...