Four Counties Water Users Ass'n v. Colorado River Water Conservation Dist.

• Decision Date: 23 January 1967
• Docket Number: No. 21358,21358
• Citation: 425 P.2d 259,161 Colo. 416
• Parties: FOUR COUNTIES WATER USERS ASSOCIATION, Plaintiff in Error, v. COLORADO RIVER WATER CONSERVATION DISTRICT, Defendant in Error.
• Court: Colorado Supreme Court

Page 259

425 P.2d 259

161 Colo. 416

FOUR COUNTIES WATER USERS ASSOCIATION, Plaintiff in Error, v. COLORADO RIVER WATER CONSERVATION DISTRICT, Defendant in Error.

No. 21358.

Supreme Court of Colorado, En Banc.

Jan. 23, 1967.

Rehearing Denied April 10, 1967.

Ireland, Stapleton, Pryor & Holmes, D. Monte Pascoe, Denver, for plaintiff in error.

Frank Delaney, Glenwood Springs, for defendant in error.

DAY, Justice.

This writ of error is directed to portions of conditional decrees for the appropriation of water entered by the district court of Routt County in a supplemental adjudication of water rights in Water District 58.

The court granted to defendant in error, Colorado River Water Conservation District (hereinafter referred to as the District) a conditional decree for what is described as the Toponas Project with the priority date in 1951 and an additional conditional decree for what was denominated as the Wessels Project, with a priority date in 1954.

There is no dispute that the district is entitled to have awarded to it the conditional decrees. Only the priority dates are challenged.

Plaintiff in error Four Counties Water Users Association (hereinafter referred to as Four Counties) objected and excepted to the priority dates awarded to the district for the reasons:

1. That if an appropriation of water has been initiated as of the dates claimed and awarded, the due diligence required by law from those dates up to September, 1961, had not been shown, and

2. That what was done as of the dates claimed was not intended to and did not constitute an appropriation.

The question whether due diligence was shown since the priority dates granted in the district's decrees, and the further problem whether the Bureau of Reclamation of We find from the facts hereinafter set forth and from the law applicable thereto, there was not an appropriation by either the District or the Bureau of Reclamation as of the priority dates granted to the District.

the United States is a predecessor in title and claim of the District need not be answered in view of our resolution of the question whether there was an actual intent to appropriate as of the dates in dispute.

A summary of what was done initially on both projects upon which the claims for the decrees are founded follows:

THE WESSELS PROJECT

In the record made in support of the decree for the Wessels Project it was described as one to divert water of the Yampa River for the purpose of irrigating lands along the river above Steamboat Springs. The project includes construction of a small reservoir on the Yampa River and a canal from the reservoir. In July of 1954, the Bureau of Reclamation instituted a reconnaissance investigation of the Yampa White Basin, particularly that component which was denominated the Wessels Project. This investigation consisted, among other things, of a land classification survey to determine whether the lands which would be irrigated by the project were suitable therefor and would be benefited thereby. This reconnaissance investigation resulted in the publishing in 1957 of a Yampa White Project Reconnaissance Report issued by Region 4--B of the Bureau. As to the nature of this report and of the reconnaissance conducted three years earlier, one Mr. Jennings, Project Manager of the Bureau of Reclamation, at Grand Junction, offered uncontroverted testimony which leaves little doubt as to what was intended by the work of 1954. He testified:

'Generally speaking, the preliminary or reconnaissance investigations are a prelude to going into this very costly feasibility type of investigation. We use those (referring to the reports of the Yampa White reconnaissance report) as a guide to indicate where there is a feasible project and if in our judgment there isn't a project in here you wouldn't schedule it for detailed investigations.'

In further referring to the 1957 Yampa White Project Reconnaissance Report, Jennings testified that such report would go through channels to the Department of Interior and Bureau of Reclamation and 'would probably go to Congress For information purposes; It wasn't a feasibility report or a report On which project authorization is made * * * it would go More for their information.' (Emphasis supplied.)

Thereafter were the following questions and answers:

'Q. And Congress would then specifically authorize the investigation after the detailed feasibility report and appropriate money for it?

'A. No. The first step would be to appropriate monies for a Detailed investigation.

'Q. But would they have to appropriate that to the Wessels Project?

'A. That is right.

'Q. To investigate it?

'A. That is right.

'Q. They have not done that to date?

'A. They have not done that.' (Emphasis supplied.)

After the publication of the 1957 report, the Bureau, according to Mr. Jennings, Did not undertake 'any specific work' in connection with the project. The first work which would show an Intent to take water was described by witness Philip Smith, Secretary-Engineer for the Colorado River Water Conservation District. He testified that the District 'studied a revised plan on the Wessels Project with a larger reservoir at the Pleasant Valley Reservoir site, but in order to conform with the plan as more or less adopted and that the Bureau was standing by on the Wessels Project, our final filing on the project was for the Bear Reservoir.

The canal system there was no change in it.'

On January 23, 1962 the District filed a map and statement with the State Engineer pursuant to law. The map and statement were based upon surveys made by the District in September of 1961. There is no dispute that these surveys were such as to constitute the initiation of an appropriation, and there is further no dispute that due diligence was shown from the time of those surveys up to the date the District presented its claim in July 1962. Four Counties Water Users Association v. Colorado River Water Conservation District, Colo., 414 P.2d 469.

THE TOPONAS PROJECT

The evidence with respect to the Toponas Project is similar. The land classification survey undertaken by the Bureau of Reclamation was commenced in August, 1951. Regarding the nature of the work that was done on the Toponas Project by...