Ft. Collins Mill. & Elevator Co. v. Larimer & Weld Irr. Co.

• Decision Date: 06 December 1915
• Docket Number: 8191.
• Citation: 156 P. 140,61 Colo. 45
• Parties: FT. COLLINS MILLING & ELEVATOR CO. et al. v. LARIMER & WELD IRR. CO.
• Court: Colorado Supreme Court

156 P. 140

61 Colo. 45

FT. COLLINS MILLING & ELEVATOR CO. et al. v. LARIMER & WELD IRR. CO.

No. 8191.

Supreme Court of Colorado

December 6, 1915

Rehearing Denied April 3, 1916.

Error to District Court, Larimer County; Neil F. Graham, Judge.

Proceeding by the Larimer & Weld Irrigation Company to change the point of diversion of its water right. Objections by the Ft Collins Milling & Elevator Company and others. From a decree permitting the change as prayed, protestants bring error. Reversed.

H. N Haynes, of Greeley, Frank J. Annis, of Ft. Collins, and Joseph C. Ewing, of Greeley, for plaintiffs in error.

L. R. Rhodes, of Ft. Collins, for defendant in error.

HILL J.

The defendant in error instituted this proceeding in the manner provided by sections 3226-3229, R. S. 1908, to change the point of diversion of 14.83 second feet of water from the headgate of the Chamberlain ditch, taking its supply from the Cache la Poudre river to the headgate of its canal, some 2 miles down the stream. The plaintiffs in error, as protestants, filed objections. Upon trial to the court, a decree was entered permitting the change as prayed, for the entire 14.83 second feet, and unlimited as to use or time. Exceptions were taken; 120 days were allowed for bill of exceptions, which was tendered and approved within that time. The protestants, as plaintiffs in error, bring the case here for review on error. The defendant in error filed a motion to dismiss the writ of error, for the alleged reason, among others, that the only method by which such a decree could be reviewed was by appeal, as provided by section 3231, R. S. 1908. The motion was denied upon this contention, but other questions raised by it were reserved for final hearing. See Ft. Collins M. & E. Co. v. Larimer & Weld Irr. Co., 58 Colo. 183, 143 P. 1091.

Counsel claim, although the case be reviewable on error, that the record can only be perfected for such review in the manner provided by the general adjudication acts, as section 3226, supra, concerning the change of point of diversion, provides that the same procedure shall be followed in this class of cases as in general adjudication matters. We agree that the same procedure, except as otherwise provided in the later act, must apply to both; but we cannot agree that the act of 1911 (Acts 1911, p. 11) was not intended to apply to either in perfecting a record for this court; its language will not permit of such a limited construction. It will be observed that section 6 of the 1911 act repeals all statutes granting and regulating appeals, etc. The method providing for a record for review under the general adjudication act is a regulation in connection with the appeal. By the language used, it not only repeals that portion of these statutes granting such appeals, but includes the portions regulating such appeals. The act of 1911 provides a complete method for the preservation of a bill of exceptions in order to have such questions reviewed by this court, and, in our opinion, it was intended thereby to supersede that portion of the general adjudication act which also applies to proceedings where the change of point of diversion is involved, concerning the method by which such cases are to be brought to this court for review. The decree sought to be reviewed was not rendered until nearly a year after the 1911 act took effect, and was perfected before the new rules, adopted June, 1914, went into effect, for which reasons we are of opinion, not only that the writ of error was proper, but that the bill of exceptions was perfected in the manner provided by law as it then existed.

Many errors are assigned to the admission and rejection of testimony. We shall consider but two of them, as the others may not arise again. The protestants offered in evidence a certified copy of the sworn statement of claim for the Chamberlain ditch, filed in the proceedings in which its priority decree was obtained. They also offered a certified copy of all evidence presented in its behalf in said matter. Both were rejected as immaterial. In this the trial court erred. The decree for this ditch, offered in evidence by the petitioner, awards it 14.83 second feet of water for irrigation, domestic, milling, and churning purposes, but does not state the amount which was awarded for irrigation and domestic or power purposes. These matters were left uncertain and indefinite in the decree. They were proper and material to be shown and considered in order that the trial court might be better able to ascertain whether the rights of juniors would be injuriously affected by the proposed change. Referring to a similar sworn statement of claim in New Mercer Ditch Co. v. Armstrong, 21 Colo. at page 362, 40 P. at page 990, this court said:

'These statements may be likened to a pleading upon which a judgment is based, and they are proper to be introduced along with the decree to enable the court to interpret or construe the latter in the light of the claimant's own assertion of his demand. Both the law under which this decree was rendered and the decree itself contemplate that no claimant shall be entitled to the use of a quantity of water in excess of that actually needed for the purpose for which the appropriation was made.'

This opinion is conclusive of the competency of the sworn statement as testimony in this action. Among other things, this statement recites that:

'The area lying under being and proposed to be irrigated from this ditch is about 100 acres.'

The statement does not allege the amount used for irrigation or ever diverted into the ditch. On that subject it gives the ditch's dimensions and the acreage being and proposed to be irrigated; that is, in 1881, at the time it was filed. Such being the case, and the evidence in that proceeding being by statute required to be preserved and filed, it was properly admissible in evidence to explain anything uncertain or indefinite, as these matters were left in the decree. Bates v. Hall, 44 Colo. 360, 98 P. 3; Freeman on Judgments, vol. 1 (4th Ed.) §§ 273, 274; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195; Lewis v. Ocean Nav. & Pier Co., 125 N.Y. 341, 26 N.E. 301; Littleton v. Richardson, 34 N.H. 179, 66 Am.Dec. 759; Washington G. L. Co. v. Dist. of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712; Greenleaf on Evidence, vol. 1, § 511; Fowler v. Doyle, 16 Iowa 534; Wigmore on Evidence, vol. 3, § 2116; Campbell v. Rankin, 99 U.S. 261, 25 L.Ed. 435; Geneva Nat. Bank v. Independent School Dist. (C. C.) 25 F. 629; Starling v. Weir Plow Co. (C. C.) 49 Fed. 637; Davis v. City of Clinton, 58 Iowa 389, 10 N.W. 768.

There is very little, if any, conflict in the testimony concerning the material facts, so far as they were allowed to be shown. By the general adjudication decree in this water district bearing date April 11, 1882, the Chamberlain ditch was found to be a ditch to irrigate lands and for domestic purposes, milling and churning. It was awarded, for these uses and benefits priority No. 16 for 14.83 second feet of water, as of date April 1, 1866. The testimony discloses that it was but a small ditch, constructed along and near the river, to irrigate but a small tract of what is called 'low lands'; that the total area ever irrigated therefrom has never exceeded 75 acres, all of which lies near the river; that the subsoil is of a gravel nature, and for this reason requires more water than upland; that the top soil varies in thickness from 3 or 4 feet down to where the gravel comes to the surface; that the water underneath is always somewhat near the surface, but varies with the height of water in the river; that the natural drainage is into the river.

Eliminating the dispute as to how much was used for power purposes prior to 1882, it is agreed that none has ever been used since for such purposes; that since 1882 up to the time of trial, between 60 and 75 acres are all that have ever been irrigated through said ditch by virtue of said decree, and that none of the waters awarded to it under claim thereof has ever been used elsewhere; that prior to 1882, when any water was used for power purposes, which was for churning, it was run but a few hundred feet from the river and, after being thus used, was immediately returned to the stream; that upon account of the conditions, subsoil, etc., the water used upon the land under this ditch seeps away very fast, for which reason a liberal amount is needed, and has, at times, been thus used for its irrigation; that it has been the custom of the owners thereof to thus use it intermittently, when needed for their crops, and for such reasons to use large amounts at a time, but that during all these years they have only used sufficient for this purpose, namely, the irrigation of not to exceed 75 acres of land, and that when not needed for this purpose, it, or the remainder not being used, has been allowed to remain in the stream, which has been the major portion of the time, and when thus turned off, it is used by junior appropriators; that upon account of the nature of the soil covered by this canal, its subsoil, etc., the waters used for the irrigation of the 60 to 75 acres thereunder soon thereafter find their way back into the river with a small per cent. of loss, consumed by vegetable life, surface evaporation, or in other ways, and that the portion returned to the river in this manner has likewise been used by the protestants and others, with junior priorities, to supply their needs upon the stream during the past thirty-odd years that the entire normal flow of the Cache la Poudre river has been appropriated, and at times is inadequate to supply all the priorities awarded from it to the protestants and others;...