Great Plains Water Co. v. Lamar Canal Co.

• Citation: 31 Colo. 96,71 P. 1119
• Parties: GREAT PLAINS WATER CO. v. LAMAR CANAL CO. et al.
• Decision Date: 12 January 1903
• Court: Colorado Supreme Court

71 P. 1119

31 Colo. 96

GREAT PLAINS WATER CO. v. LAMAR CANAL CO. et al.

Supreme Court of Colorado

January 12, 1903

Appeal from District Court, Bent County.

Action by the Lamar Canal Company and others against the Great Plains Water Company, substituted in place of the Amity Land & Irrigation Company, to determine priority in the use of waters for irrigation. From a portion of a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Rogers Shafroth & Gregg, for appellant.

C. C Goodale, J. W. McCreery, and C. F. Mead, for appellees.

CAMPBELL C.J.

This case was before this court on a former appeal and, under the title 'The Lamar Canal Co. v. The Amity Land & Irrigation Co. et al.,' is reported in 26 Colo at page 370, 58 P. 600, 77 Am.St.Rep. 261. The Great Plains Water Company, having succeeded to the rights of the Amity Company, has been substituted for the latter. The proceeding was brought under the irrigation statutes of the state. Its object was an adjudication of the priorities of right to the use of water for irrigation in water district No. 67, wherein the canals of the parties are situate. In making the adjudication, the priority of the Amity Company, the grantor of appellant, was made senior to that awarded to appellees though work upon the canals of the latter was first begun. This determination was based solely upon the assumption that the so-called map and statement acts referred to in the former opinion governed. In accordance with their provisions, and under the facts disclosed by that record, the rights of the owners of the Lamar Canal, though earlier in their inception, were postponed to the rights of their adversary, because the latter had complied with the provisions of the act. This court having held the acts in question void, the decree which rested upon them was reversed, and the cause remanded. The concluding portion of the opinion reads: 'As the appellant claims that the quantity of water awarded it by the decree was not sufficient, and as the appellees contend that, in the absence of the statutory test of the date of priority, there is not sufficient definite evidence in the record to determine it, we have deemed it best, in the conflict of the testimony, and the uncertainty that necessarily must be present when it is considered that the court below, in establishing and fixing the dates of the priorities, proceeded upon an improper basis, not to attempt a reformation of the decree, but rather to remand the proceeding, with instructions to the district court to vacate the decree in so far as it affects the canal of the appellant, and to proceed either upon the testimony now before it, or, if the parties, or either of them, so desire, to take additional evidence, and upon all of the evidence to make findings and enter a decree to conform to the views expressed in this opinion.' It will be observed from this excerpt that this court, for the reasons therein given, declined to reform the decree, but remanded the cause, that the parties might, if they saw fit, strengthen their respective claims by further proof. After the cause was remanded, and the district court was called upon to execute the mandate, the Lamar Canal Company abandoned its claim to a larger amount of water than that given it by the original decree under the second priority, waived its right to introduce additional evidence, and asked the court to enter a decree upon the evidence already before it. The Great Plains Water Company elected not to produce further evidence. The evidence before the trial court as the basis of the decree which the mandate required to be rendered was therefore the same as that upon which the original decree was made. The Lamar Canal Company thereupon asked the court to modify its findings of fact to comply with the views expressed in our former opinion, and to enter a decree upon the same. The court, upon due consideration, affirmed and approved the findings made by the referee, with the modifications directed by this court; and, as modified, those findings were adopted by the court as its own, and upon them a decree was rendered, whereby there was awarded to appellees a priority to a certain quantity of water, senior to that decreed to the Great...