Crippen v. X.Y. Irrigating Ditch Co.

• Decision Date: 02 May 1904
• Parties: CRIPPEN et al. v. X. Y. IRRIGATING DITCH CO.
• Court: Colorado Supreme Court

76 P. 794

32 Colo. 447

CRIPPEN et al. v. X. Y. IRRIGATING DITCH CO.

Supreme Court of Colorado

May 2, 1904

Appeal from District Court, Bent County; Jesse P. Northcutt, Judge.

Action by the X. Y. Irrigating Ditch Company against J. J. Crippen trustee, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Action to set aside a decree and enjoin its enforcement. Our General Assembly has furnished a comprehensive system for regulating the use of water for irrigation, and established a procedure for settling the priority of rights to the use of water therefor. Sess. Laws 1879, p. 94; Sess. Laws 1881, p. 142. The X. Y. Irrigating Ditch Company, appellee here, proceeding under these acts, by its petition filed in the district court of Bent county in the year 1893 set in motion the judicial machinery for adjudicating the relative priorities of all ditches and reservoirs taking water from the Arkansas river in Water District No. 67. Such proceedings, thus instituted and conducted in obedience to the provisions of the statutes resulted in a final decree in July, 1895, by which such priorities were determined, and, inter alia, appellee's canal was thereby awarded priority No. 11 for 69 cubic feet of water per second of time as of date July 22, 1889. While the proceeding was pending, B. P. Knight, who was then the owner and in possession of Sisson Ditch No. 1, which is in that water district, and takes water from the Arkansas river entered his appearance therein, and filed a sworn statutory statement of claim for this ditch, in which it was alleged that its construction was begun December 20, 1889, or later and a priority was claimed for it as of that date. Though Knight knew that the proceedings were continued for many months thereafter before the final decree was rendered, he offered no evidence to support his verified statement, and when the decree was entered no priority was awarded to his ditch. Section 26 of the act of 1881 (page 156) provides for a review or reargument of a decree thus entered within two years thereafter at the instance of a party thereto. By section 27 an appeal is granted to an aggrieved party upon prescribed conditions. Section 34 gives to one not a party to the decree, at any time within four years after its entry, the right to bring and maintain any suit or action hitherto allowed in any court of competent jurisdiction to determine his claim or priority to the use of water; and section 35 declares that after the lapse of four years all parties whose rights are affected by any final decree shall be deemed and held to have acquiesced in the same. No review or reargument has ever been had of, and no appeal has ever been taken from, this decree, and no action has been instituted within four years, or at all, by any one not a party to establish his priority. So that the decree, unless it has been affected by the proceedings which will presently be noticed, stands in all respects the same as when originally entered, and ever since that time water has been distributed thereunder to the appellee and others whose rights were thereby adjudicated.

In September, 1897, and more than two years after its entry, Crippen and others, appellants here, presented their petition to the district court in which this decree was entered, entitling the same as in the original proceedings instituted by appellee, alleging that petitioners below (appellants here) were then the owners and in possession of Sisson Ditch No. 1, and that it was entitled to a priority of right to the use of water from the Arkansas river in this water district as of date December 20, 1889, by original construction. They asked leave to offer proofs of their claim, and for an order of service to all persons claiming water from the river subsequent to the date of their alleged priority, naming the claimants of ditches whose rights were said to be inferior. An order was entered permitting appellants, as petitioners, to make the proofs requested, and notice was ordered to be issued to and served upon all subsequent claimants, returnable at a specified date. Pursuant to this order of the court, the appellants filed a sworn statement claiming the priority already mentioned. Afterwards, and before the return day of the writ, appellants filed a supplemental statement, alleging upon information and belief that Sisson Ditch No. 1 was entitled to a priority of 16 cubic feet per second of time as of date January 1, 1876, for which a decree so determining was asked, regardless of any subsequent or prior appropriators, and without respect to the priority which appellants themselves had theretofore claimed as of date December 20, 1889. No new parties were brought into court, and no notice given to any claimants, or to any one who had decrees of date between January 1, 1876, and December 20, 1889, and no one appeared in opposition, and at no time in the proceedings were owners of ditches claiming priority of an earlier date than December 20, 1889, made parties or notified, nor was any relief asked as against them, except in the amended statement. Upon the day of the filing of this supplemental statement appellants offered proofs, and in November, 1897, obtained a decree for Sisson Ditch No. 1, awarding it a priority as of the date and quantity therein claimed, which antedated the priority awarded to the appellee in the final decree of 1895. This decree so entered purported to award to Sisson Ditch No. 1 the priority in question as paramount and superior to all priorities of the Arkansas river and its tributaries except such as may have been, or may thereafter be, awarded in a like adjudication by a competent tribunal as of an earlier date.

A copy of this decree of 1897 was certified to the water commissioner of the district, who was charged with the duty of regulating and distributing water in accordance with the provisions of the decrees of the district court. Although up to the time of the filing of the pending action there has been no actual interference with appellee's adjudicated rights, still, regardless of the priorities adjudicated to appellee and others by the decree of 1895, appellants will demand of the water commissioner that in times of scarcity he make distribution of water in accordance with the provisions of the decree of 1895 as modified by the decree of 1897. When there is a shortage of water--as is always the case at some period of the irrigation season--appellee's ditch will not get the full quantity decreed to it because earlier appropriations will consume all the water of the river before it is served. If the water commissioner obeys the provisions of the decree of 1897, and makes distribution accordingly, appellee will be deprived of all, or some portion, of the quantity of water to which it is entitled under the decree of 1895, because under the provisions of the statute governing the same it is the duty of the water commissioner to distribute water to the various ditches in the district in accordance with their decreed priorities. When, therefore, there is not enough for all, he shuts down the headgates of the various ditches in the inverse order of their numbered priority, so that a given priority will not be served until all senior ones receive their allotments.

It is charged that the decree of 1897 is wrong, in that the court had no power to make it, and, since it was rendered without notice of any kind to the plaintiff, is entirely void. The relief asked is the annulling of the decree and the restraining of its enforcement. The proper water commissioner and the superintendent of irrigation and other state officials charged with the duty of enforcing the decree were made parties. After a motion interposed by appellants, who were defendants below, had been overruled, and their demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action had likewise been overruled, the court, after the announcement by defendants that they stood upon the demurrer, upon the confessed allegations of the complaint reciting the foregoing facts set aside the judgment and enjoined its enforcement, and from such decree the defendants are here by appeal.the instance of a "party" thereto. Held, that one who appears in such proceedings and files his verified statement of claim, but refuses to offer proof, must apply for a reargument or review within two years, or the decree will become res judicata as to him, notwithstanding section 22. Hodges, Wilson & Hodges, for appellants.

Devine & Dubbs, for appellee.

CAMPBELL, J. (after stating the facts).

By here summarizing the respective contentions of the parties, the questions for decision will be clearly presented at the outset. The first position of plaintiff is that the statutory decree of 1895 is binding on the owners of the Sisson ditch, and cannot be legally reviewed or overturned by them after the lapse of two years from its entry; second, that the 1897 decree is void, and may be canceled, and its enforcement enjoined by the plaintiff, because its execution would injuriously affect plaintiff's vested rights. The defendants take the opposite view, and further say that under the irrigation statutes an application for adjudicating such priority may be made by appellants and granted by the court without limitation as to time. They admit that the decree of 1897 is void as to the owners of the X. Y. Canal, but say that plaintiff, not being a party to it, cannot move to set it aside; and, in any event, in the absence of an allegation in the complaint that the Sisson priority was not, in truth and fact, as of date January 1, 1876, the plaintiff cannot maintain an action to have annulled the decree which so determines.

Several questions are thus presented for...