Game and Fish Commission v. Farmers Irr. Co.

• Decision Date: 03 April 1967
• Docket Number: No. 21782,21782
• Parties: The GAME AND FISH COMMISSION of the State of Colorado et al., Plaintiffs in Error, v. The FARMERS IRRIGATION COMPANY, a corporation et al., Defendants in Error.
• Court: Colorado Supreme Court

Page 562

426 P.2d 562

162 Colo. 301

The GAME AND FISH COMMISSION of the State of Colorado et al., Plaintiffs in Error, v. The FARMERS IRRIGATION COMPANY, a corporation et al Defendants in Error.

No. 21782.

Supreme Court of Colorado, En Banc.

April 3, 1967.

Rehearing Denied May 1, 1967.

Duke W. Dunbar, Atty. Gen., Denver, Donald H. Henderson, Asst. Atty. Gen., Neil S. Mincer, Sp. Asst. Atty. Gen., Erven T. Larson, Sp. Asst. to the Atty. Gen., Glenwood Springs, for plaintiffs in error.

Frank Delaney, Robert C. Cutter, Glenwood Springs, for defendants in error.

MOORE, Chief Justice.

This action is before this court for the second time. In The Farmers Irrigation Company v. Game and Fish Commission of the State of Colorado, 149 Colo. 318, 369 P.2d 557, it was held that the complaint stated a claim against the commission upon which relief could be granted, and the cause was remanded for further proceedings.

The complaint set forth eighty-one separate claims and contained seventy typewritten pages in which 130 plaintiffs sought damages allegedly resulting from the pollution of their water supply by the installation and operation of a fish hatchery on East Rifle Creek in Garfield county. The corporate plaintiff was the Farmers Irrigation Company and he individual plaintiffs were stockholders in that company who were also the owners and operators of ranch or farm properties located on what is known as Silt Mesa near the town of Silt in Garfield county.

The answer filed by the defendants contained nine defenses to which we refer under broad captions as follows: (1) Failure to state a claim; (2) general denial of all material allegations; (3) no claim stated by plaintiffs who acquired their land subsequent to the building of the fish hatchery; (4) as to some of the plaintiffs, pollution of the water was caused by their own acts; (5) estoppel as to those plaintiffs who acquired their property subsequent to construction of the fish hatchery; (6) conduct of the defendants was pursuant to a lawful purpose of a state agency with no malice or negligence involved; (7) negligence on the part of plaintiffs in distributing the water to individual users; (8) laches, preventing equitable relief by injunction; and (9) any pollution of stream existed prior to installation of the fish hatchery and was not caused thereby.

The issues as thus framed were tried to the court sitting without a jury, and the trial consumed thirty-two days extending over a period of sixteen months. The trial concluded on February 24, 1964; briefs were filed with the trial court; and Judgment and Decree entered on October 21, 1964. Prior thereto, on September 30, 1964, the trial court filed its 'Memorandum Opinion' containing its Findings of Fact and Conclusions of Law in favor of the plaintiffs. The decree enjoined the defendants from 'polluting and contaminating the water discharged from said fish hatchery into East Rifle Creek,' and from causing fluctuations in the stream flow in such manner as to interfere with the proper administration of adjudicated water rights on the stream.

The trial court entered extensive findings of fact, and preliminary thereto made the following statement:

'After full consideration of the voluminous evidence in this case, the Court finds that the plaintiffs have established by an overwhelming preponderance of the evidence the material facts alleged in the complaint and are entitled to injunctive relief but to damages only to the extent hereinafter set forth.'

Separate awards of damages in favor of claimants in sixty-one separate claims were ordered in amounts between the low of $264 and the high of $2250. The trial court further held that the claimants in eighteen other counts of the complaint,

'* * * either did not use or need the domestic supply of water claimed by them, or were not otherwise damaged, and are, therefore, not entitled to recover damages under the counts listed after their names, to-wit: (This does not preclude any of the plaintiffs from recovering under other counts.)'

Judgments were entered pursuant to the above findings and injunctive relief was granted to all the plaintiffs.

As grounds for reversal of the judgment, argument is presented under seven captions as follows:

'I. The entire evidence was insufficient, as a matter of law, to sustain the judgment and decree of the trial court.

'II. The operation of the Rifle Fish Hatchery has not polluted the water used by the plaintiffs and no unlawful acts have been committed by the defendants.

'III. The doctrine of reasonable use applies in this case and the defendants' use of the waters of East Rifle Creek is certainly a reasonable one.

'IV. The court applied an improper measure of damages and there is no competent evidence to support the damages awarded to the plaintiffs herein.

'V. Plaintiffs are not entitled to injunctive relief under the pleadings and evidence in this case.

'VI. The court erred in overruling defendants' motions to dismiss interposed at the close of plaintiffs' case.

'VII. The trial court erred in awarding costs against the defendant Game and Fish Commission.'

A careful consideration of the entire record and the authorities cited on both sides in connection with points I, II, III, VI and VII above quoted, leads to the unmistakable conclusion that the trial court committed no error in sustaining the position taken by the plaintiffs in the action. No good purpose would be served in lengthening this opinion by the numerous pages which might be required to set forth details and distinctions which compel the ultimate conclusion. It is sufficient to say that for the most part the trial court, on sufficient competent evidence, resolved in favor of the plaintiffs pertinent facts which were in dispute. The determination of the facts as found by the court called into play the legal principles which were correctly applied.

We now consider specifically points numbered IV and V, for a correct understanding of which it will be necessary to direct attention to facts applicable thereto. The individual plaintiffs are owners of eighty tracts of ranch or farm property served by the corporate defendant which owns what is known as the Harvey Gas Reservoir and the Harvey Gap Ditch, to which valuable water rights have been adjudicated.

Practically all of the farms under the system had cisterns constructed thereon which stored and furnished water for domestic uses to the residents or occupants of the improvements located thereon. These cisterns were filled with water directly from the Harvey Gap Ditch and the laterals and distribution ditches therefrom, and the normal procedure was that the plaintiff company would run two 'cistern' runs a year for such purposes, one run being in the early spring, usually March, and the other run being in the late fall, usually November. Many users also filled their cisterns in between the regular cistern runs, either from direct flow water out of the ditch or from water stored in the Harvey Gap Reservoir.

During the summer of 1954, the Game and Fish Commission commenced construction of the Rifle Falls Fish Hatchery along the west bank of East Rifle Creek at a point approximately one and one-half to two miles above the headgate of the Harvey Gap Ditch. The fish hatchery was completed and began operation on or about December 7, 1954, and has operated at this site continuously since that date. In the operation of the fish hatchery, the waters of East Rifle Creek are diverted through the hatchery where the water flows continuously through the retaining ponds and raceways of the hatchery and is thereafter returned to East Rifle Creek at a point approximately three-quarters of a mile below the point of diversion. The use of the water by the fish hatchery is nonconsumptive and the total quantity diverted is subsequently returned to the stream.

The attorney general on behalf of plaintiffs in error argues that the trial court erred in applying an improper measure of damages in that the court considered as relevant expenditures of money by various plaintiffs covering costs of...