Fort Lyon Canal Co. v. Rocky Ford Canal, Reservoir, Land, Loan & Trust Co.

• Decision Date: 24 May 1926
• Docket Number: 11358-11361.
• Parties: FT. LYON CANAL CO. v. ROCKY FORD CANAL, RESERVOIR, LAND, LOAN & TRUST CO. et al. (four cases).
• Court: Colorado Supreme Court

246 P. 781

79 Colo. 511

FT. LYON CANAL CO. v. ROCKY FORD CANAL, RESERVOIR, LAND, LOAN & TRUST CO. et al. (four cases).

Nos. 11358-11361.

Supreme Court of Colorado

May 24, 1926

Department 3.

Error to District Court, Pueblo County; James A. Park, Judge.

Four separate proceedings, consolidated for hearing as one case by the Rocky Ford Canal, Reservoir, Land, Loan & Trust Company to change point of diversion of water rights, opposed by the Ft. Lyon Canal Company and others. Change granted, and named protestant brings error.

Reversed and remanded, with instructions.

H. L. Lubers and Hodges, Wilson & Rogers, all of Denver, for plaintiff in error.

John H Voorhees, of Pueblo, for defendants in error.

CAMPBELL J.

Four separate proceedings, under our pertinent statute, asking the same relief, were filed by the petitioner, the owner of the Rocky Ford Highline Canal, and were consolidated for hearing as one case. The object of the consolidated case is to obtain a decree allowing petitioner to change the original point of diversion from the Arkansas river of three small ditches called the Swallows ditches, situated in the western part of Pueblo county--whose early priorities of 1870-1872 aggregating 8.3 second cubic feet, the petitioner had acquired by purchase--and to take court their decreed volume of water at the headgate of the petitioner's Highline Canal, about 40 miles further down the river, and therewith irrigate the lands lying under that canal; and as part of the same transaction to transfer up to the headgates of these Swallows ditches in exchange an equal volume of water of petitioner's priority of a later date, 1890. On final hearing and upon a vast mass of lay and expert testimony and record evidence, the trial court found for the petitioner, and granted the change to the extent of 80 per cent. of the decreed priorities of the Swallows ditches, deducting 20 per cent. thereof as compensation for the loss to the river which such changed conditions would cause. There were several protestants below, but of them only one, the Ft. Lyon Canal Company, appears here as plaintiff in error. Its grievance is that its vested rights, as a junior appropriator from the same source of supply, are injuriously affected by such change.

The well-prepared briefs and able oral arguments of counsel have materially lightened our labors. The record discloses the care which the trial judge exercised throughout the prolonged hearings, and his conscientious effort to save to the petitioner the fruits of its purchase of early priorities and at the same time to prevent or minimize injury to the vested rights of the protesting respondent, the Ft. Lyon Canal Company, the headgate of whose canal is further down the river and below the headgate of petitioner's canal into which the Swallows priorities are to be diverted. Were it not that the trial court consistently, but improperly, refused the repeated offers of protesting respondent's counsel to show, the legitimate evidence, that the proposed change would necessarily, or by reasonable inference, or probably, result in material injury to the respondent's vested rights as a junior appropriator, a different case might have been made. Notwithstanding the insistence of petitioner's counsel to the contrary, the record, as will presently be pointed out, shows this erroneous and prejudicial ruling was due to the trial court's misconception of our recent decision, New Cache La Poudre Co. v. Water S. & S. Co., 74 Colo. 1, 218 P. 739, which, being our latest pronouncement on the subject, was interpreted by the trial court as overruling, or at least inconsistent with, our earlier decisions, which, were it not for this latest holding, would require the admission of the offered evidence which the trial court rejected.

The Arkansas river, where the Swallows ditches tap it, flows in an easterly direction in a narrow canon varying from a few hundred yards to one-half mile in width. The stream runs on a flat level floor or bed, composed of gravel, sand, clay, and other substances washed down by the elements from the adjacent walls of the canyon. The lands that have been irrigated by the ditches lie close to the river. In the main, they are level and flat, and the surface and underground drainage is chiefly towards the river. The water underlying these flat lands runs on a table from two to four feet under the surface, and the parties treat this water table as a part of the underflow of the stream itself. When water from the ditches is spread upon the adjacent lands, all close to the river, what is not absorbed by the soil, or lost in evaporation, or converted into plant life, quickly returns to the river channel as seepage. About 453 acres of land are served by the three ditches, the length of the longest of which does not exceed two miles. The crops grown are corn, oats, wheat, alfalfa, and garden truck.

The lands under petitioner's Highline Canal are uplands or prairies. By direct line they are about 35 miles down the stream from the Swallows ditches and several miles further, measured by the actual course of the river. The canal is about 79 miles long and irrigates 25,000 acres of land, being a strip about a mile wide lying between petitioner's canal and the next one down the river, and the canal extends along the uplands for a distance of 9 or 10 miles from petitioner's headgate. The avowed purpose of petitioner is to transfer and divert the Swallows priorities to the headgate of its Highline Canal to irrigate the lands of its owners.

It is a settled doctrine in this state that a right to divert water from our natural streams and to use the same for growing agricultural crops is a property right; that it is not essential to its continued existence that the water thus diverted be forever used on the particular tract of land to which it was first applied, but its owner may sell it, separate and apart from such land, for use on other lands of the grantee, or he may himself change the place of use or point of diversion, so long as the vested rights of other appropriators are not thereby injuriously affected. Both parties here recognize this doctrine, and the only question in dispute between them is whether the proposed change will injure the respondent.

Notwithstanding this recognized right of change, the petitioner for the purpose, we suppose of negativing any presumption that might arise that it was indulging in a mere speculative scheme, informs us that in 1921 an unprecedented and disastrous flood swept the Arkansas Valley in the region of the Swallows ditches, which practically obliterated them and covered the irrigated lands to the depth of several feet with the deposits and débris which the flood carried. Before that time the lands were profitably and successfully tilled and various crops were harvested. The damages resulting from the flood were so great that the cost of any practical plan to reconstruct the ditches and to restore the lands to their former productive condition would be prohibitive, and so the owners, to minimize their losses, concluded to dispose of, and they did sell and transfer to the petitioner, their early priorities, and as a part of the consideration therefor arranged for the transfer of the petitioner's later priorities as already stated. As this exchange feature of the case is deemed by the parties themselves immaterial to the present controversy, no further reference is made to it. The right to change the point of diversion is, of course, none the less a qualified right because petitioner acquired it by purchase.

The petitioner's theory and contention below and its entire case are to be found in the testimony of Mr Patterson, its expert intelligent witness. His conclusion, which coincides with petitioner's theory, is that no substantial injury will be inflicted upon the respondent by the change if the same is allowed. The general effect of petitioner's testimony, in line with the testimony of Patterson, is its tendency to show no injurious result,...