Farmers' High Line Canal & Reservoir Co. v. Wolff

Citation23 Colo.App. 570,131 P. 291
PartiesFARMERS' HIGH LINE CANAL & RESERVOIR CO. et al. v. WOLFF et al.
Decision Date10 March 1913
CourtCourt of Appeals of Colorado

Appeal from District Court, City and County of Denver.

Petition by John Wolff and another for a decree permitting a change in the point of diversion of certain water rights, and the Farmers' High Line Canal & Reservoir Company and others protest. Judgment for petitioners and protestants appeal. Reversed and remanded.

See also, 125 P. 576.

C.B. Whitford and Henry E. May, both of Denver for appellants.

Thomas & Thomas and John R. Smith, all of Denver, for appellees.

KING J.

John Wolff and Miers Fisher presented their joint petition under the provisions of the statute (Sess.Laws 1903, p. 278 et seq.; Rev.St.1908, § 3226 et seq.) praying for a decree permitting a change in the point of diversion of certain adjudicated water rights in water district No. 7, to wit Seven second-feet of decreed priority No. 11, from the headgate of the Kershaw ditch, and five second-feet of decreed priority No. 16, from the headgate of the Fisher ditch to the headgate of the Rocky Mountain ditch. It was alleged that the Kershaw Ditch Company, a corporation, was the owner of the Kershaw ditch which was awarded 16 second-feet of water by decree entered in 1884, and that petitioners were the owners, in severalty, of certain shares of the capital stock of said company, by reason of which the petitioner Wolff was entitled to the use of 2 1/2, and the petitioner Fisher to 4 1/2, second-feet of water so awarded; that Fisher was the owner of the Fisher ditch, which, under said adjudication, was awarded 35 cubic feet of water per second, out of which he asked to change 5 second-feet. The Kershaw ditch had its headgate and was used to water lands on the north side of Clear creek, and the Fisher ditch on the south side. The headgate of the Rocky Mountain ditch was on the south side of Clear creek about 10 miles further up the stream than the headgates of the ditches from which the water was to be removed, and distributed its water, generally, to another water shed. Of the protestants, the Farmers' High Line Canal & Reservoir Company, a corporation, is the owner of the Farmers' High Line Canal, having its headgate still further up the stream than the Rocky Mountain ditch, and the owner of priority No. 9 for 39.80 and priority No. 57 for 154 second-feet; the Colorado Agricultural Ditch Company, a corporation, is the owner of the Colorado Agricultural ditch; and the Lower Clear Creek Ditch Company, a corporation, the owner of the Clear creek and Platte river ditch, both having large priorities junior to petitioners', and taking their water from the north side of Clear creek below the ditches of petitioners.

Protestants claim that all the waters of Clear creek have been appropriated and decrees rendered for many times the normal flow of the stream at ordinary stages, making it necessary to enforce the decrees each season to supply the ditches in the order of seniority; that by reason of the location of petitioners' headgates near the mouth of the stream, and the large area of irrigated lands further up the stream the drainage of which is toward and into the natural stream above such headgates, the waters of said stream have been and constantly are augmented between the points at which the waters used by petitioners have been diverted, and the headgate of the Rocky Mountain ditch, at which they wish to divert 12 second-feet, to such an extent that much of the time the entire amount, and at all times a substantial part, of the water used by petitioners has been supplied by such return waters, without requiring a demand for much, if any, of the natural flow as distinguished from said return waters; and further that the ditches of petitioners and all the lands irrigated thereby lie near and sloping to the creek, so that all waste, seepage, and surplus from irrigation return quickly to the stream above the headgates of certain of the protestants' ditches; that those conditions have existed for 40 years, and so existed at the times protestants made their appropriations junior to petitioners'; and that a change of the point of diversion of 12 second-feet of water to a place 10 miles further up the stream and above these sources of supply by return waters will require the withdrawal of that entire quantity a part of the time from the natural flow above the headgate of the Rocky Mountain ditch, which must necessarily be taken from the junior decree of the Farmers' High Line Ditch and other ditches similarly situated, and will also detract, in a substantial measure, from the quantity which other ditches between the two places of diversion and below petitioners' present diversion and use have used and are entitled to receive. Other claims are made, such as loss of seepage from the amount sought to be changed, nonuser, abandonment, enlarged use at the new point of use, that the former decree is void or excessive from which injury is asserted; some of which will be considered. The petition was granted.

The testimony is voluminous, the taking thereof extending, intermittently, over a period of one year, and this, together with the law applicable thereto, was carefully considered by the trial court and its findings of fact and conclusions of law made a part of the record. The court ruled that, inasmuch as the right to change the point of diversion of water rights is a vested property right, it was not incumbent upon the petitioners to prove that injury would not result to others by the change prayed for in order to establish a prima facie case, but that the burden was on respondents to prove injury to their vested rights; and further that respondents were bound to show not only that the injury claimed was to a vested right held by them, but that the vested right so injured was equivalent in proportions, as well as character, to that of petitioners, and of a fixed or determinate quantity, so that the court could impose terms to prevent the injury, as provided by statute, or, if impossible to fix terms and conditions by which the injurious effect could be prevented, or the parties affected be protected, deny the application in toto, and also held that the vested rights presented by respondents for the consideration of the court as injuriously affected were seepage rights, pure and simple.

The process of reasoning by which a court reaches its conclusion is of slight consequence if the correct conclusion is reached. But, as we do not agree with the conclusion of the trial court, we deem it proper to note the foregoing statements and conclusions, because we think they are responsible for the court's ultimate finding that injury would not result from the change granted.

The only issue raised and supported by the evidence necessary to consider here is as to the quantity of return waters and its effect upon the conditions that will be disturbed by the change. The evidence as to the augmentation of the stream by return waters is conflicting as to quantity only. Nearly all the testimony on that subject was from the witnesses offered by respondents, and, being decisive of the case, will be noticed somewhat in detail. Ralston creek is a tributary of Clear creek and enters that stream between the old point and the new point of diversion; but there is no evidence that it increases the supply of the stream, except as it gathers return or flood waters. Several engineers, whose qualifications were admitted, testified. Thomas Grieve, civil engineer and hydrographer in the office of the state engineer, took observations and measurements from the head of the stream to a point below petitioners' ditches, from which he found a total gain of 11.9 second-feet, which he designated as seepage. Charles W. Beach, deputy state engineer, took observations and measurements for several days for the purpose of ascertaining the amount of the return waters, from which he computed a gain from seepage between the Rocky Mountain ditch and a point just below petitioners' ditches of 13.72 second-feet. The difference between the estimates of these two engineers may be accounted for by the different times in the year when the observations were made. This witness made an excellent statement of the reason why injury will result from the proposed change, when he said: "The change would move the point of diversion above some of the sources of supply. The removal up the stream would be a tax on the junior decrees further up." C.C. Schrontz, a civil engineer, an employé in that capacity of a reservoir company, took observations extending over a long period of time for the purpose of ascertaining and advising his company whether surplus waters from this stream could be found in sufficient quantify to justify the construction of reservoirs for storage for irrigation purposes. His computations and estimates were made from his own observations and measurements, coupled with reports of the state engineer and measurements of the stream covering a period of years made by employés of the government. His testimony is that, while, during the time of his examination, but 73,000 acre-feet of water came into the district, 96,000 acre-feet were actually distributed by the ditches and used, from which he concludes that the difference, approximating 23,000 acre-feet, arises from seepage waters, practically all of which would come into the stream or ditches below the headgate of the Rocky Mountain ditch. Two acre-feet are shown to be sufficient, generally, to irrigate one acre of land. Consequently the return waters, which this engineer found, would, with economical use, irrigate 11,000 acres of land. It is equivalent to one billion cubic feet of water.

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