Farmers' Independent Ditch Co. v. Agricultural Ditch Co.

• Decision Date: 18 May 1896
• Citation: 45 P. 444,22 Colo. 513
• Court: Colorado Supreme Court
• Parties: FARMERS' INDEPENDENT DITCH CO. v. AGRICULTURAL DITCH CO. et al.

45 P. 444

22 Colo. 513

FARMERS' INDEPENDENT DITCH CO. v. AGRICULTURAL DITCH CO. et al.

Supreme Court of Colorado

May 18, 1896

Error to court of appeals.

Action by the Farmers' Independent Ditch Company against the Agricultural Ditch Company and others. From the judgment of the court of appeals (32 P. 722) affirming the judgment of the district court sustaining a demurrer to the complaint plaintiff brings error. Reversed.

This cause comes to this court upon writ of error to the judgment of the court of appeals affirming the judgment of the district court. The issues are formed by a demurrer to the complaint. The plaintiff in error, the Farmers' Independent Ditch Company, in its complaint after the usual formal averments, contains the following allegations: That it is in the lawful possession, control and management of a certain irrigating canal in Weld county known as the 'Farmers' Independent Ditch,' and that as such owner it is required to carry and distribute water to agriculturists along the line of its canal; that the suit is brought by plaintiff for itself and on behalf and for the use of its stockholders and the users and consumers of water from its ditch. It is alleged that plaintiff's rights accrued by reason of the appropriation of water from the Platte river, and that the same were made and perfected according to the then existing laws of the state. The date of the appropriation is given as the 20th day of November, 1865, and the amount appropriated as 61.61 cubic feet of water, standard measurement, per second of time; that the use of this amount of water has continued without interruption from said date up to the irrigating season of 1890, and until interfered with by the defendants as hereinafter set forth. It is further alleged that the amount of 61.61 cubic feet is necessary to supply the users and consumers of water in carrying on their agricultural operations upon the lands irrigated by the plaintiff's ditch; that heretofore, to wit, on the 28th day of April, 1883, a decree was entered in the district court of the county of Arapahoe, and in and for water district No. 2, which provided, inter alia, that the users and consumers of water for irrigation and other purposes from the Farmers' Independent Ditch were entitled to the priority of the use of water not theretofore appropriated, flowing and to flow into the Platte river during the irrigating season each year, to an amount not to exceed 61.61 cubic feet per second as of the date of November 20, 1865. It is averred that the defendant the Agricultural Ditch Company constructed its ditch on the 21st day of December, 1874, and claims to have appropriated 101.54 cubic feet of water per second of time as of that date; that its ditch takes water from Clear creek, in Jefferson county one of the main tributaries of the Platte river, aforesaid, and empties into the Platte river in the county of Arapahoe, and state of Colorado, above the head of plaintiff's ditch. It is averred that the alleged appropriation of the Agricultural Ditch is subsequent in point of time and junior to the appropriation of the plaintiff company; that the waters flowing in Clear creek, as well as in the other tributaries of the Platte river, are necessary to supply the appropriation of the plaintiff and others senior to it. It is averred that the defendant has interfered with and taken the water flowing in Clear creek, appropriated as aforesaid by plaintiff, and has wrongfully turned and caused to be turned the same into its ditch, thereby depriving plaintiff and the users and consumers of water from its ditch of the water so flowing through Clear creek into the Platte river; that during the greater part of the irrigating season of 1890 plaintiff has been illegally deprived of its use of water and the benefits of its appropriation thereof by means of the wrongful acts and doings of the defendant company, whereby the crops and agricultural products of the farmers and others dependent on the water furnished by the Farmers' Independent Ditch have been to a large extent lost and destroyed, to its damage and the damage of its users and consumers of water, for whom it sues, in the sum of $50,000. It is averred that the defendant James P. Maxwell is state engineer, that Isaac H. Batchellor is superintendent of irrigation for water district No. 1, and J. G. Hartzell water commissioner of water district No. 7; that they, and each of them, have allowed and permitted the Agricultural Ditch to take and divert the waters flowing through Clear creek into the Platte river, appropriated by this plaintiff, into the ditch of the defendant company, without any right or authority so to do; that defendants are now taking and threatening to continue to take and use the water so appropriated as aforesaid by plaintiff; that plaintiff has no adequate remedy at law for the redress for such injury and damage, and that so depriving plaintiff of the water to which it is entitled has resulted and will result in irreparable damage and injury to it. Prayer for injunction and damages. To this complaint a demurrer was filed and sustained. The grounds of demurrer are sufficiently set forth in the opinion of the court.

The act upon which the opinion is principally based is to be found in the Session Laws of 1887, at page 295 et seq. It provides, among other things:

'Section 1. That the governor shall appoint a superintendent of irrigation for each of the water divisions now existing within the state, or which may hereafter be created, such superintendents of irrigation to hold office for a period of two years from the date of their respective appointments, or until their successors shall be appointed and qualified.

'Sec. 2. Said superintendent of irrigation shall have general control over the water commissioners of the several districts within his division. He shall, under the general supervision of the state engineer, execute the laws of the state relative to the distribution of water in accordance with the rights of priority of appropriation, as established by judicial decrees and perform such other functions as may be assigned to him by the state engineer.

'Sec. 3. Said superintendent of irrigation shall, in the distribution of water, be governed by the regulations of this act, and acts that are now in force; but, for the better discharge of his duties, he shall have the authority to make such other regulations to secure the equal and fair distribution of water, in accordance with the rights of priority of appropriation, as may in his judgment be needed in his division: provided, such regulations shall not be in violation of any part of this act, or other laws of the state, but shall be merely supplementary to and necessary to enforce the provisions of the General Laws and amendments thereto.

'Sec. 4. Any person, ditch company, or ditch owner, who may deem himself injured, or discriminated against, by any such order or regulation of such superintendent of irrigation, shall have the right to appeal from the same to the state engineer, by filing with the state engineer a copy of the order or regulation complained of, and a statement of the manner in which the same injuriously affects the petitioner's interest. The state engineer shall, after due notice, hear whatever testimony may be brought forward by the petitioner, either orally or by way of affidavits, and through the superintendent of irrigation, shall have power to suspend, amend or confirm the order complained of.'

'Sec. 7. Within thirty days after his appointment, said superintendent of irrigation shall send to the clerk of the district court, within his division, of such counties as have had rendered by the district court of such county, judicial decrees, fixing the priorities of appropriation of water for irrigation purposes for any water district, a notification of his appointment to such office, and shall request of the said clerk a certified copy of every decree of the district court establishing priorities of appropriation of water used for irrigation purposes within that district. Thereupon, it shall be the duty of such clerk, within ten days after the receipt of such request from said superintendent of irrigation, to prepare a certified copy of all decrees of such district court establishing priorities of water rights made within that district, under the provisions of the General Statutes of the state of Colorado, and transmit the same to the superintendent of irrigation requesting it. Said superintendent of irrigation shall then cause to be prepared a book to be entitled 'The Register of Priorities of Appropriation of Water Rights for Water Division No. ___, State of Colorado,' within which he shall enter and preserve such certified copies of decrees. Said superintendent of irrigation shall, from such certified copies of decrees, make out a list of all the ditches, canals and reservoirs entitled to appropriations of water within his division, arranging and numbering the same in consecutive order, according to the dates of their respective appropriations within his division, and without regard to the number of such ditches, canals or reservoirs may bear within their respective water districts. Said superintendent of irrigation shall make from his register a tabulated statement of all the ditches, canals and reservoirs in his division, whose priorities have been decreed, which statement shall contain the following information concerning each ditch, canal and reservoir arranged in separate columns: The name of the ditch, canal or reservoir; its number in his division; the district in which it is situated; the number of it in its proper district; and the number of cubic feet of water per second to which it is entitled, and such other and further

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