Consolidated Home Supply Ditch & Reservoir Co. v. Town of Evans

• Decision Date: 07 June 1915
• Docket Number: 8149.
• Citation: 59 Colo. 482,149 P. 834
• Court: Colorado Supreme Court
• Parties: CONSOLIDATED HOME SUPPLY DITCH & RESERVOIR CO. et al. v. TOWN OF EVANS.

149 P. 834

59 Colo. 482

CONSOLIDATED HOME SUPPLY DITCH & RESERVOIR CO. et al. v. TOWN OF EVANS.

No. 8149.

Supreme Court of Colorado

June 7, 1915

Rehearing Denied July 6, 1915.

Error to District Court, City and County of Denver; James H Teller, Judge.

Petition by Town of Evans against the Consolidated Home Supply Ditch &amp Reservoir Company and others. Decree for petitioner, and defendants bring error. Affirmed.

H. N. Haynes and C. D. Todd, both of Greeley, for plaintiffs in error.

Joseph C. Ewing, of Greeley, for defendant in error.

BAILEY J.

This is a case in which it is sought to have confirmed a change of point of diversion of a certain decreed priority in Water District No. 2, diverting water at a point on the west side of the South Platte River, in Weld County, Colorado, a short distance below the point where the Big Thompson empties into the South Platte, to a point up the Big Thompson about one and one-half miles from its mouth, in Water District No. 4. Decree was entered March 12th, 1912, granting the prayer of the petition confirming the change, subject to certain limitations in the diversion and use of the water specified in the decree for the protection of other water users.

In a proceeding in the District Court of Arapahoe County to obtain a general adjudication of priorities of water rights for irrigation in Irrigation District No. 2, a decree was entered in behalf of the St. Louis Colony Ditch No. 1, giving it a priority of date April 20th, 1871, for 29.28 second feet of water out of the South Platte River. By deed dated the 15th day of May, 1876, the St. Louis Western Colony, owner and user of the St. Louis Colony Ditch No. 1 and its decreed priority, conveyed the same to Henry Martin and John M McCutcheon, and in turn, on the 21st day of January, 1893, these grantees conveyed this water right and ditch to the Town of Evans, petitioner herein. It is clear from the record that there was a Colony Ditch No. 1, heading on the west bank of the South Platte River, in Water District No. 2, a short distance below the mouth of the Big Thompson River, near the Town of Evans, and that in an adjudication decree for said district, entered in Denver, April 28th 1883, it was adjudged priority No. 21 for 29.28 second feet of water as of date April 20th, 1871, from the South Platte. It also further appears that the petitioner owns this property, and that it owns the Evans Town Ditch, through which latter ditch it now is, and for some twenty years has been, diverting and applying the aforesaid priority. The right is forty-four years old, and has been decreed for about thirty-two years.

It is undertaken, at this late day, in these proceedings to challenge the validity of the original decree, because of alleged lack of jurisdiction in the District Court of Arapahoe County to award it, although there is nothing on the face of the record to indicate such lack. That this cannot be done, being strictly collateral in its nature, in a proceeding of this sort, is firmly established by the following authorities. Ft. Lyons Canal Co. v. Arkansas Valley S. B. & I. L. Co., 39 Colo. 332, 90 P. 1023; O'Brien v King, 41 Colo. 487, 92 P. 945; Platte Valley Irr. Co. v. Central Trust Co., 32 Colo. 102, 75 P. 391; Farmers' U. D. Co. v. Rio Grande C. Co., 37 Colo. 512, 86 P. 1042; Wadsworth D. Co. v. Brown, 39 Colo. 57, 88 P. 1060; Alamosa Creek Co. v. Nelson, 42 Colo. 141, 93 P. 1112; Broad Run Inv. Co. v. Deuel & Snyder Imp. Co., 47 Colo. 573, 108 P. 755; O'Neill v. Northern Colorado Irr. Co., 56 Colo. 545, 139 P. 536; W. S. & S. Co. v. Larimer & Weld I. Co., 24 Colo. 322, 51 P. 496, 46 L.R.A. 322; Boulder & Weld County Ditch Co. v. Lower Boulder Ditch Co., 22 Colo. 115, 43 P. 540; New Mercer D. Co. v. Armstrong, 21 Colo. 357, 40 P. 989; Louden Canal Co. v. Handy D. Co., 22 Colo. 102, 43 P. 535; Montrose Canal Co. v. Loutsenhizer D. Co., 23 Colo....