Durkee Ditch Co. v. Means

Decision Date02 April 1917
Docket Number8768.
PartiesDURKEE DITCH CO. et al. v. MEANS et al.
CourtColorado Supreme Court

Error to District Court, Delta County; Thomas J. Black, Judge.

Petition by J. H. Means and others against the Durkee Ditch Company and others. There was a judgment for petitioners, and plaintiffs bring error. Reversed and remanded, with directions.

William H. Burnett and Milton R. Welch, both of Delta, for plaintiffs in error.

Catlin & Blake, of Montrose, for defendants in error.

BAILEY J.

In June, 1912, defendants in error filed a petition in a water adjudication proceeding in Water District No. 40, for an original decree for a ditch designated as the Morton Ditch Appropriation No. 2 Ditch, wherein it was alleged that said ditch took its waters from Madsen gulch, conveying it therefrom to a ditch called the Morton Ditch, and thence to their lands. They further alleged that since 1904 the waters of Madsen gulch had been used by them, that it was a natural stream supplied by springs and seepage water, that the gulch and the water were tributary to the Morton Ditch Irrigation System through Appropriation No. 2 Ditch, and since the appearance of seepage and spring waters in that gulch the ditch had been used to divert water therefrom to their lands. It was found upon the hearing that Appropriation No. 2 Ditch collected seepage and return waters from Madsen gulch, that these waters had increased gradually, so that, in 1912, it supplied 1.6 second feet of water, and that Madsen gulch was tributary to Dry Creek, a small stream emptying into the Gunnison River, in Delta County.

Upon these findings an original appropriation was decreed, based upon original construction and use. There was incorporated in the findings of fact a paragraph to the effect that all of the Madsen gulch water had at all times been diverted and used by petitioners, and that none thereof had ever been allowed to flow down to Dry Creek. The decree treats the appropriation by petitioners of these waters as an independent, prior appropriation, not subject to priorities on Dry Creek, to which stream such waters would be tributary if permitted to flow beyond claimants' ditch.

A protest against the petition was filed by plaintiffs in error, alleging in substance that they were the owners of certain priorities on Dry Creek, and that Madsen gulch was tributary thereto; that, except for the irrigation of lands adjacent to Madsen gulch by waters from Dry Creek, no seepage or return water would flow in said gulch at any time; that if the waters were not intercepted and caught up they would flow down the gulch to Dry Creek, and thus supply senior priorities lower down that stream; and that there is not sufficient water to supply the needs...

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8 cases
  • Public Service Co. of Colorado v. F.E.R.C.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • February 15, 1985
    ...stream through a drainage channel has any claim to it. Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107 (1913); accord, Durkee Ditch Co. v. Means, 63 Colo. 6, 164 P. 503 (1917); Rio Grande Reservoir & Ditch Co. v. Wagon Wheel Gap Improvement Co., 68 Colo. 437, 191 P. 129 (1920). PSC relies hea......
  • Lamont v. Riverside Irr. Dist.
    • United States
    • Colorado Supreme Court
    • July 10, 1972
    ...Reservoir & Irrigation Co. v. McCune, 71 Colo. 256, 206 P. 393; Trowel Co. v. Bijou District, 65 Colo. 202, 176 P. 292; Durkee Ditch Co. v. Means, 63 Colo. 6, 164 P. 503; Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107. This water is subject to appropriation in the same manner as other water ......
  • Ramshorn Ditch Co. v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 15, 1920
    ...supra; Hill v. American Land & Live Stock Co., 82 Or. 202, 161 P. 403; Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107; Durkee Ditch Co. v. Means, 63 Colo. 6, 164 P. 503; Trowell L. & I. Co. v. Bijou Irr. District, 65 202, 176 P. 292. It may be stated here that there is no evidence in the rec......
  • Joyce v. Murphy Land & Irrigation Co., Ltd.
    • United States
    • Idaho Supreme Court
    • June 1, 1922
    ... ... Collins Mill etc. Co. v. Lorimer etc. Irr. Co., 61 Colo ... 45, 156 P. 140; Durkee Ditch Co. v. Means, 63 Colo ... 6, 164 P. 503; In re North Powder River, 75 Ore. 83, ... 144 P ... ...
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