Conley v. Dyer

• Decision Date: 06 April 1908
• Citation: 43 Colo. 22,95 P. 304
• Parties: CONLEY et al. v. DYER et al.
• Court: Colorado Supreme Court

95 P. 304

43 Colo. 22

CONLEY et al. v. DYER et al.

Supreme Court of Colorado

April 6, 1908

Appeal from District Court, Garfield County; John T. Shumate, Judge.

Action by Joseph M. Dyer and others against Edgar A. Conley and others. From a judgment for complainants, defendants other than defendant Curry appeal. Reversed and remanded, with directions.

Goudy &amp Twitchell, for appellants.

Edward T. Taylor, for appellees.

HELM J.

The present controversy relates to priorities in water district No. 45, as determined by a decree entered on May 5, 1888. This district lies west of the Continental Divide, and includes territory contiguous to Grand river and certain of its tributaries. It was the district in which the first general adjudication of water rights took place in that portion of the state known as the Western Slope. At the time of this adjudication it was impossible to determine with accuracy or completeness some of the questions involved in such proceedings. The government surveys had not yet been extended through the section, and the ranchmen or settlers picked out and marked off their agricultural claims as best they could. The country was but sparsely settled, and each appropriator felt at liberty to draw upon his imagination and discount the future; that is to say, in proving the dimensions of the land claimed and the extent of the water required, as well as in giving the size and capacity of his ditch or canal, he took into consideration both his plans and needs for the future and his present actual uses. The result was that in many instances two or three times as much water was claimed and allotted as was needed to supply all reasonable present and prospective requirements; and in some cases priorities were recognized for more than the entire flow of the natural stream. The court in its decree occasionally made both a final and an interlocutory finding and award in connection with a particular canal or claimant. To so much of the water as had already been applied to beneficial uses, and therefore constituted a completed appropriation, the decree was final and conclusive. But for the protection of the pioneer settlers, who had incurred great hardship and risk, and were attempting in good faith to enlarge their cultivated holdings, it was sometimes deemed expedient to enter what may properly be termed an interlocutory or conditional decree that is, to recognize and declare the size and capacity of the canal or ditch with reference to the land proposed to be irrigated, and thus determine the quantity of water required for such future use, then to decree a right to the same contingent upon the exercise of diligence in constructing, extending, or enlarging the ditch as the case might be, and in applying the water therethrough, the requirement always annexed being that such construction or enlargement, application, and use should take place within a reasonable time from the date of commencement of the ditch or canal. The particular appropriations in the present controversy involved were all from Cache creek, a tributary of Grand river. Appellees, who were plaintiffs below, claim through priorities numbered 22, 45, 51, 56, 63, and 83; these priorities representing different ditches, and being awarded to them or to their grantors. Appellants who, together with one Curry, were defendants below, claim through priorities numbered 35 and 57. The two last-mentioned priorities were given to what is known as the Holmes ditch. They cover the two species of adjudication referred to. No. 35 was original and final for 100 cubic feet of water per minute of time that being the quantity already applied from the Holmes ditch to beneficial uses. The date fixed for this priority was August 2, 1885. No. 57 was an enlargement priority granted said ditch. It covered 425 cubic feet of water per minute of time. Its date was fixed at June 27, 1886. It represented the quantity of water claimed by defendants or their grantors for the irrigation of land not yet brought under cultivation. After declaring that said 425 cubic feet should be allowed proportionately as the parties increased their irrigable land, the decree continued as follows: 'And provided further that said increase of such additional land and the user of said proportionate additional amount of water appropriated therefor thereon be made by said parties with reasonable diligence.' This decree has been accepted and acted upon by the water commissioner and by the parties in so far as it relates to the distribution of water from Cache creek. On June 5, 1902, the present action was begun. It is in the nature of a suit in equity for a permanent injunction. A large part of the water claimed and used by plaintiffs is held through appropriations junior to that of said priority 57. And if defendants are entitled to the 425 cubic feet contingently awarded thereby, and assert a right thereto, plaintiffs will be deprived of much of the water applied by them to beneficial uses since the decree was entered. The complaint alleges the entry of said decree, together with the facts above stated in relation to the rights of plaintiffs, and also in relation to the Holmes ditch and its priorities 35 and 57. That pleading likewise further avers, among other things, that plaintiffs, since the entry of said decree, promptly and diligently applied to beneficial uses the water awarded their priorities, and have ever since been and still are so using the same; that, although 16 years have passed since the date given said priority 57, yet defendants have made use of only a small portion of the 425 cubic feet contingently awarded thereto; that the total quantity of water, aggregating some 3,000 feet per minute, covered by this part of said decree, was largely in excess of the entire flow of Cache creek; that the whole of such flow has been appropriated and used by plaintiffs and other consumers; that plaintiffs have been for many years and still are using all of said 425 cubic feet contingently awarded to priority 57 and unapplied by defendants; that by virtue of such user on their part and nonuser by defendants plaint...