Consolidated Home Supply Ditch and Reservoir Co. v. Town of Berthoud

• Citation: 896 P.2d 260
• Decision Date: 08 May 1995
• Docket Number: No. 1,No. 93SA307,1,93SA307
• Parties: CONSOLIDATED HOME SUPPLY DITCH AND RESERVOIR COMPANY, Objector-Appellant/Cross-Appellee, v. TOWN OF BERTHOUD, Applicant-Appellee/Cross-Appellant, and Public Service Company of Colorado; City of Loveland; the Thompson Water Users Association; Harold D. Simpson, State Engineer; Alan D. Berryman, Division Engineer for Water Division; Town of Estes Park, and Handy Ditch Company, Objectors-Appellees.
• Court: Supreme Court of Colorado

Page 260

896 P.2d 260

CONSOLIDATED HOME SUPPLY DITCH AND RESERVOIR COMPANY, Objector-Appellant/Cross-Appellee, v. TOWN OF BERTHOUD, Applicant-Appellee/Cross-Appellant, and Public Service Company of Colorado; City of Loveland; the

Thompson Water Users Association; Harold D. Simpson, State

Engineer; Alan D. Berryman, Division Engineer for Water

Division No. 1; Town of Estes Park, and Handy Ditch

Company, Objectors-Appellees.

No. 93SA307.

Supreme Court of Colorado,

En Banc.

May 8, 1995.

The Law Office of Stephen T. Williamson, Stephen T. Williamson, Louisville, for objector-appellant/cross-appellee Consol. Home Supply Ditch and Reservoir Co.

Vranesh and Raisch, L.L.C., John R. Henderson, Paul J. Zilis, Boulder, for applicant-appellee/cross-appellant Town of Berthoud.

Kutak Rock, Timothy J. Flanagan, William S. Martin, Denver, for objector-appellee Public Service Co. of Colorado.

Fischer, Brown, Huddleson & Gunn, P.C., William H. Brown, Fort Collins, for objector-appellee Thompson Water Users Ass'n.

Justice MULLARKEY delivered the Opinion of the Court.

The Town of Berthoud (Berthoud) filed an application in the water court to change the use of two of its water rights on the Big Thompson River, one in the amount of 3.0 cubic feet per second (c.f.s.) and the other in the amount of 4.14 c.f.s. Berthoud has historically diverted these rights through the Handy Ditch during irrigation months. In its application, Berthoud sought to obtain authorization to divert the rights through the Colorado Big Thompson Project Facilities on a year-round basis.

The water court held a four-day trial on Berthoud's change of use application during which two of the opposing water rights holders, Home Supply Ditch and Reservoir Company (Home Supply) and Thompson Water Users Association, submitted evidence to demonstrate that Berthoud had abandoned its right to divert the 3.0 c.f.s. claim during the non-irrigation months (3.0 c.f.s. winter water right). Home Supply also challenged the priority of Berthoud's water right.

Following the trial, the water court found that Berthoud had abandoned its 3.0 c.f.s. winter water right. The court held that Berthoud could divert its 3.0 c.f.s. right during irrigation months and its 4.14 c.f.s. water right via the Handy Ditch through the Colorado Big Thompson Project Facilities. The court also held that Berthoud had a first priority right for all uses.

Home Supply appeals to this court for review of the water court's holding that Berthoud has the first priority right for all uses. ¹ It argues that the water court incorrectly determined Berthoud's priority date with respect to future administration of the water right and contends that its water right is senior to Berthoud's water right. Berthoud appeals the water court's holding on abandonment, asserting that it did not abandon its 3.0 c.f.s. winter water right. We affirm the water court's holding recognizing Berthoud's right as senior to all others and reverse the water court's finding of abandonment.

I.

This case involves the complicated adjudications of Big Thompson River water rights in Water Division No. 4 during the late 1800's and early 1900's. In 1879 and 1881, adjudication acts were passed which provided for adjudication of water rights only when the rights were for irrigation purposes. See 1879 Colo.Sess.Laws 94; 1881 Colo.Sess.Laws 142. Pursuant to these acts, the Boulder District Court entered decrees on May 28, 1883, and on March 22, 1890. All water rights adjudicated in both the 1883 and 1890 general adjudication proceedings were for irrigation purposes and established the irrigation priorities for all water rights users in the Big Thompson system.

The statute authorizing the adjudication of water rights for purposes other than irrigation did not become effective until July 11, 1903. See 1903 Colo.Sess.Laws 297; Mills Stat.Ann., §§ 3803-06; Doll v. McEllen, 21 Colo.App. 7, 121 P. 149 (1912). Decrees concerning domestic uses of Big Thompson River water were entered in 1912 and 1923. After court challenges, a final decree was entered on June 29, 1916 (1916 decree), and it remains in effect today. The 1916 decree granted Berthoud "the perpetual right to take from the Big Thompson River three (3) cubic feet of water per second of time, as priority No. 1, for domestic purposes as against all the users of water from said river." The decree also required Berthoud to build a pipeline by 1920 to carry its water from the Big Thompson River. In the interim, Berthoud was awarded 6.0 c.f.s. of "carrying" water to transport the water through the Handy Ditch.

The jurisdiction of the water court to enter what became the 1916 decree was initially challenged by several objectors in Louden Irrigating Canal and Reservoir Co. v. Berthoud, 57 Colo. 374, 140 P. 802 (1914). The opinion quotes the objectors at length and demonstrates that the parties understood that the 1916 decree gave Berthoud the first priority right for all purposes. Id. at 376, 140 P. at 803 (objectors asserted that the water court did not have jurisdiction "to make such a decree antedating all priorities from the Big Thompson River"). ² This court rejected the objectors' challenge to the jurisdiction of the water court and held that the objectors had not properly preserved their argument that the water court mistakenly interpreted the law as requiring that domestic use always be given a higher priority than irrigation use. Id. at 380, 140 P. at 804. ³

The decree was again before us in Hinderlider v. Town of Berthoud, 77 Colo. 504, 238 P. 64 (1925), and both Home Supply and Berthoud were parties. This time, Berthoud contested the validity of the decree, arguing that the water court lacked the authority to decree any temporary amount of water or to fix any penalty or forfeiture for Berthoud's failure to build a pipeline. This court found against Berthoud and upheld the validity of the decree. In so doing, Berthoud retained its 3.0 c.f.s. right but lost its 6.0 c.f.s. right to "carrying" water.

Home Supply also challenged the decree in an administrative hearing before the Office of the State Engineer, Town of Berthoud v. The Consolidated Home Supply Ditch and Reservoir Co., (State Eng. of Colo. 1944) (1944 state engineer's decision). In the hearing, Home Supply contended, similar to its position in the present case, that since Berthoud's water right was granted after the irrigation rights had been adjudicated, Berthoud's right was junior to the irrigation rights. The Office of the State Engineer found that Berthoud's water right had been administered as the number one water right for all uses on the stream since 1916 and stated that Home Supply's request was more capable of being rectified by a proper court action. Apparently, Home Supply filed no court action and, since the 1944 State Engineer's decision, the state engineer has continued to administer Berthoud's water right as the number one water right on the river.

II.

In finding that Berthoud had the number one priority right, the water court held:

6. The evidence was undisputed that the above referenced water right decreed in Case No. 4862 for 3.0 cfs has been diverted as the No. 1 Priority water right on the Big Thompson River since it was decreed, and has never been curtailed. In addition, the Decree in Case No. 4862, dated June 29, 1916, the supporting Record, the Supreme Court decisions in Louden Irrigating Canal and Reservoir Co. v. Berthoud, 57 Colo. 374, 140 P. 802 (1914) and Hinderlider v. Town of Berthoud, 77 Colo. 504, 238 P. 64 (1925), and the State Engineer's decision in 1944, In the Matter of the Town of Berthoud v., the Consolidated Home Supply Ditch and Reservoir Ditch Co., (Exhibit A-19), all provide that said water right is entitled to divert water from the Big Thompson River as the No. 1 priority.

The Court finds any ambiguity in the Decree is hereby resolved such that Berthoud is entitled to divert its 3.0 cfs water right from the Big Thompson River as the No. 1 Priority based upon the following: (1) the specific language of the 1916 Decree related to the Berthoud System of Water Works supersedes the general language of the Decree; (2) this conclusion is fully supported by the Record from the 1904 adjudication (leading to the entry of the 1916 decree), wherein Berthoud stipulated with the other parties to the adjudication to receive a 3.0 cfs No. 1 right in exchange for dismissing its pending transfer of 9 cfs of the No. 1 irrigation right to the Town; (3) such conclusion is further supported by the consistent administrative practice during this century (at a minimum) of administering Berthoud's 3.0 cfs domestic right as the No. 1 right on the Big Thompson River.

This right has always been administered as being senior to the No. 1 irrigation right which has a priority date of November 10, 1861, a portion of which Applicant itself owns. This historic administrative practice shall continue.

Home Supply contends that the water court incorrectly held that the 1916 decree granted Berthoud the number one priority for all uses on the Big Thompson River. Under Home Supply's analysis, the 1916 decree was adjudicated to give Berthoud the number one priority in the water district for domestic purposes only. As such, Home Supply contends that the water court erroneously found that Berthoud's water right was senior to the number one irrigation right which has an appropriation date of November 10, 1861, and was adjudicated on May 28, 1881. We disagree for several reasons.

First, Home Supply's claim is precluded by res judicata. The doctrine of res judicata holds that an existing judgment is conclusive of the rights of the parties in any subsequent suit on the same claim. State Engineer v. Smith Cattle, Inc., 780 P.2d 546, 549 (Colo.1989); Pomeroy v. Waitkus, 183 Colo. 344, 350, 517 P.2d 396, 399 (1974). Res judicata constitutes an absolute bar to subsequent actions only when both the prior and subsequent...