Fort Morgan Reservoir & Irrigation Co. v. McCune

• Decision Date: 06 March 1922
• Docket Number: 9819.
• Citation: 206 P. 393,71 Colo. 256
• Parties: FT. MORGAN RESERVOIR & IRRIGATION CO. et al. v. McCUNE, State Engineer et al.
• Court: Colorado Supreme Court

206 P. 393

71 Colo. 256

FT. MORGAN RESERVOIR & IRRIGATION CO. et al. v. McCUNE, State Engineer et al.

No. 9819.

Supreme Court of Colorado, En Banc.

March 6, 1922

Error to District Court, Weld County; Robert G. Strong, Judge.

Suit by the Ft. Morgan Reservoir & Irrigation Company and others against Addison J. McCune, as State Engineer, and others. Decree was adverse to plaintiffs, and they bring error.

Reversed and remanded.

Burke and Denison, JJ., dissenting.

James W. McCreery and Donald C. McCreery, both of Greeley, and Stoton R. Stephenson, of Ft. Morgan, for plaintiffs in error.

Harry N. Haynes, of Greeley, S.E. Naugle, of Sterling, and Harold D. Roberts, of Denver, for defendants in error Logan Irr Dist., Iliff Irr. Dist., and Prewitt Reservoir & Land Co.

TELLER J.

The plaintiffs in error were plaintiffs below in a suit to enjoin A. A. Weiland, as state engineer, and other water officials named, from enforcing an order of the state engineer allowing the Prewitt Reservoir & Land Company to use certain seepage and underflow waters alleged to be tributary to the South Platte river, which said use was alleged to be contrary to the decrees of appropriation, and injurious to the plaintiffs' priorities. The present state engineer was made a party on succeeding to the office. The court found in favor of the defendants, dismissed the complaint, and directed the water officials to recognize the water discharged from the drainage ditch of the reservoir company as belonging to that company, and to permit a rediversion thereof by the other irrigation companies 'to the same effect as is designated in the order made by the former state engineer * * * whether it was entered with or without jurisdiction'; said order being adopted as the order of the court in the premises. The decree thus entered is now here for review on error.

This case presents for determination two questions: First, was there error in the judgment in that it directed the water officials to distribute undecreed water to the nonofficial defendants, or, in other words, because it directed said officials to take affirmative action in the premises? Second was there error in determining that the water from the drainage ditch in question belonged to the reservoir company?

Under the statutes and decisions of this court, the water officials must distribute water according to the tabulated decrees they have to do only with decreed priorities with unappropriated waters they have no concern.

So long as all the water is required to supply decreed priorities, said officials should permit no water to be diverted for new appropriations. Whenever there is a surplus of water, cither from floods, or because of small demands therefor by appropriators, the officers have no right to interfere in the diversion of such surplus. All new appropriations must be made from surplus water, whether for storage or direct irrigation. When, therefore, the court directed the state engineer to distribute undecreed waters from said drainage ditch, he was directing the officer to do that for which there was no authority. If, upon the equities of the case, as shown in the evidence, the court was of opinion that the defendants were entitled to the water in question, he might properly have enjoined the officials from exceeding their authority by distributing this water to others. If the facts justified it, the court could have enjoined the officials from interfering with the defendants turning into their ditches the water which they claimed; but the court had no power to direct the water officials to do that which the duties of their office did not require of them.

The effect of this decree in the respect named is to adjudicate the question of appropriation in a nonstatutory proceeding in which but a small number of the appropriators interested were parties, and that, too, while a statutory proceeding was pending in which a claim for this water had been filed.

The second question is of greater importance, and must be determined by reference to established principles of irrigation law. In the statement and claim filed with the state engineer in 1914, the reservoir company claimed 60 cubic feet per second of time 'for irrigation purposes.'

The theory of defendants in error now appears to be that they are entitled to the water as a part of their original diversion and appropriation.

In Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107, this court had under consideration the right of Ramsay to appropriate undergraound water alleged to have escaped from a reservoir and ditches, where the seepage had been long continued, and was naturally tributary to the Platte river. We held that, when it appears that such waters will ultimately return to the river, they are a part and parcel thereof, whether the limit of time in which they reach the river be long or short; that, as soon as they start on their way to the river, and it is apparent that they will reach it, they constitute a part of the stream, and are not subject to independant appropriation as new or added water, or because they have been used to serve one priority.

The same doctrine was again announced in Durkee Ditch Co. v. Means, 63 Colo. 6, 164 P. 503, where the court said:

'The fact that these waters have been captured before they again reach Dry creek in no wise strengthens the position of petitioners, for the waters are to be considered a part of the stream from the moment they are released by a user, under an appropriation from it, and they must be permitted to return to the stream, for the benefit of other appropriators therefrom, in the order of their priorities.'

In Trowel Co. v. Bijou District, 65 Colo. 202, 176 P. 292, there was presented the case of a reservoir company assigning its supposed right to seepage from its reservoir, the construction of a ditch by said assignee for the collection of such water, and a claim by him of a right to the use of it. In denying the right to the water in that case we said:

'Doubtless a reservoir owner, if he may have acquired the right of way, may construct a ditch and drain the lands which the reservoir may have damaged, as an alternative to being mulcted in damage, but this cannot confer the right to sell the use of such drainage water, if it may naturally return to the stream.'

And again:

'The law makes no distinction as relates to the return of water to the stream between that from a reservoir supplied by a natural stream, or from a ditch supplied directly from the stream, regardless of the fact that the reservoir may be chiefly supplied in time of high water, or in the nonirrigation season.'

In that case was determined also, by agreement of the arties, the case of Samples et al. v. Trowel Land & Irrigation Co., 65 Colo. 557, 176 P. 297. In that action the irrigation company sought a mandatory injunction to compel the water officers to divert the water from the Shoemaker ditch into the Trowel ditch. The water officers demurred to the complaint, and upon the overruling of the demurrer elected to stand thereon, and the mandatory injunction was granted. The complaint failed to allege a decreed right to an appropriation in the ditch. We there said:

'It has been uniformly held by this court that the decree in such case is the sole and only guide and authority for water officials, from which they must determine in the discharge of their duties the relative rights of parties, the volume to which different ditches are entitled, the point of diversion, and all other data necessary to a distribution of the waters in accordance with the provisions of the decrees.'

It was therefore held that the mandatory injunction was improperly issued. That is important as bearing on the first point herein discussed.

The next case in the order of time in which the matter of seepage had consideration is the Rio Grande Reservoir & Ditch Co. v. Wagon Wheel Gap Improvement Co., 68 Colo. 437, 191 P. 129. Defendant in error in that case sought to make an original appropriation of water seeping from a reservoir constructed by the plaintiff in error. The opinion states of this claim that----

'The right is based upon the theory that the waters having been impounded in the reservoir during the winter months when direct irrigation is impossible, have not been and could not have been appropriated for direct irrigation.'

This court, however, applied the rule laid down in the Ramsay Case to the effect that seepage water belonged to the river, and that no direct appropriation could be made of it except subject to vested rights. It is said, however, that the case of McKelvey v. North Sterling Irrigating District, 66 Colo. 11, 179 P. 872, sustains this judgment. The facts in the two cases are quite different; in the McKelvey Case there was no consideration of seepage water. From the findings of the trial court it appeared that water from the North Sterling ditch broke through the bank where the ditch crossed a draw, hitherto dry, and water to the amount of four cubic feet per second of time escaped in the above-named manner, and ran down the draw. The court specifically found 'that said waters so escaping are not merged or mingled with any other waters.' It involved running, and not percolating, water. This case throws no light upon the question here under consideration.

The instant case is distinguished from those cited above only in the fact that seepage water from a reservoir is claimed as a part of the original storage appropriation. and not for a new and direct appropriation.

Treating this case, then, as presenting a matter not hitherto directly in issue in any case, it remains to ascertain whether or not the principles laid down in the preceding cases are applicable to the facts of this...