Greer v. Heiser

• Decision Date: 07 May 1891
• Citation: 16 Colo. 306,26 P. 770
• Parties: GREER v. HEISER.
• Court: Colorado Supreme Court

26 P. 770

16 Colo. 306

GREER v. HEISER.

Supreme Court of Colorado

May 7, 1891

Commissioners' decision. Appeal from district court, Douglas county.

Action by Charles Heiser against Henry C. Greer to amend a decree establishing priorities of water-rights. Defendant appeals.

W. T. Rgers and D. C. Webber for appellant.

Wm. Dillon and John Hipp, for appellee.

REED C.

This was a suit instituted in November, 1887, by appellee filing a bill or petition asking that a general decree made and entered of record on the 10th day of December, 1883 establishing the priorities and appropriations of water in the different irrigating ditches in water district No. 8, be amended, and that the irrigatind ditch of plaintiff (appellee) be decreed entitled to priority over the ditch of appellant, known as 'Ditch No. 82,' and the 'McCracken Ditch,' and ditch No. 83, known as the 'Smith Ditch.' It appears that at the time the respective rights of the different ditches were adjudicated appellee allowed the matter to go by default, making no appearance and no claim, and offering no testimony in regard to any ditch or water-right whatever, the reason given in the petition being that he had only recently, and within the year, learned that the respective rights had been adjudicated and a decree entered; that he 'never had any actual notice of any such proceedings, and was not aware that such proceedings were being had.' It is alleged in the petition that appellee was the owner of a ditch having its head at East Cherry creek, on the S.E. 1/4 of the S.E. 1/4 of section 33, in township 9 S.; that the ditch had a width of 1 1/4 feet on the bottom, and 2 feet on the top, and a depth of 8 inches, with a fall of 30 inches to the half mile; that it was 89 rods long, irrigating 30 or 35 acres; that the work of constructing the ditch was commenced in April, 1875, by building a dam across the creek; and that the work was continued from that date with diligence, and without intermission, until it was finished. No date is given, of the time of the completion of the work, and nothing by which the court can judge in regard to diligence, nor is there anything in the testimony showing when the appropriation of such water was concluded. It is stated that 49 rods in length of the ditch is on the west side of the creek, and 40 rods on the east side. It is alleged that the construction of the McCracken and Smith ditches was not commenced until after the commencement of his ditch, but no date is given as to when the construction of such ditches commenced. It is further alleged that the two ditches had been decreed priority over his ditch, and asking that the decree be so amended as to establish the priority of his ditch over the ditches mentioned. The court found for plaintiff, (appellee,) and a decree was entered giving the ditch priority over the ditch of appellant, a portion of such decree being as follows: 'A ditch constructed for the purposes of irrigation, to take its supply of water from East Cherry creek, in said water district No. 8, and having its head-gate on the north-east quarter of the north-east quarter of section 4, in tp. 10 S., said ditch being 87 rods in length, and having a width of 1 1/4 feet on the bottom, and two feet on the top, and a depth of 8 inches, on a grade of 30 inches to the half mile, and to be held to have appropriated as much water as will flow in a ditch of the size aforesaid. * * * Such appropriation to date from the 30th day of April, 1874.'

There is a very grave question lying at the foundation of this proceeding, viz., whether, in a proceeding of this kind, against two ditches or individuals, an adjudication could be had modifying the general decree regulating the distribution of water in the entire district. But we are of the opinion that the action is warranted by section 1796, p. 583, Gen. St., when, as appars to be conceded in this case, no interests are involved or affected, save those of persons who are parties to the adjudication. This section does not appear to be in harmony with other portions of the statute. By section 1763, p. 572, Id., it is provided that 'every person * * * owning or claiming any interest in any ditch, canal, or reservoir within any water district shall, on or beefore the 1st day of June, 1881, file with the clerk of the district court having jurisdiction of priority of right to the use of water for irrigation in such water district, a statement of claim under oath.' Section 1768, p. 575, Id., provides that the clerk of the court having jurisdiction shall cause a notice to be published four consecutive weeks in a newspaper, which 'shall notify all persons * * * interested as owners in any ditch, canal, or reservoir in such water district to appear at said court at the time so appointed, and file a statement of claim under oath, in case no statement has been before filed by him.' Section 1772 provides for the appointment of a referee to take the testimony. Section 1773 prescribes the notice to be given by the referee. Section 1774 requires proof of said notice to be made by affidavit of referee. The statute also provides that, unless suit be brought to modify such decree within two years, the party shall be barred.

Nothing having been shown by evidence to the contrary, it is a legal presumption that proper procedings were had by notice to give the court jurisdiction under the statute; hence the allegation in the petition that appellee never had any actual notice, etc., can be of no avail; and appellee, having filed no claim or asserted any right whatever to water, and having allowed the matter to go by default, might be held concluded by the decree as res adjudicata, as in other cases, unless the decree could be successfully attacked for fraud or irregularity, were it not for the language of the subsequent section, (1796:) 'Nothing in this act, or in any decree rendered under the provisions thereof, shall prevent any person, etc., * * * from bringing and maintaining any suit or action at law whatever, hitherto allowed in any court having jurisdiction to determine any claim of priority of right to water by appropriation thereof, for irrigation or other purposes, at any time within four years.' This would seem to take cases like the one at bar out of the general rule, and allow the prosecution thereof within the statutory limit of time. This being the case, failure to file claim for water, as required by the statute, would not raise the legal presumption that the party failing to file had no rights, or that he intended to waive any rights he may have had.

We do not think the decree entered in this case can be sustained.

1. There is a fatal variance between the allegations and the proof, and the decree follows neither.

2. There is no sufficient proof of material allegations or of material facts to support the decree. The allegation in the petition in regard to the ditch is: 'Said ditch has its head on said Cherry creek, on the south-east quarter of the southeast quarter of section 33, tp. 9,' etc. It is shown by the proof that in either 1874 or 1875 appellee constructed a dam across the stream at the point designated in the petition. The allegation in the complaint is that the same was done in 1875. The decree of priority fixes it April 30 1874. At such dam, the evidence shows, water was taken out on both sides of the stream. A short ditch, some 40 rods in length, on the west side, was constructed by plowing three furrows, two of which were turned out by the plow and the third removed in some other manner. This ditch discharged into and ended at a gulch through which the water returned to the stream. In regard to the ditch on the east side, the testimony is very indefinite and unsatisfactory, but seems to establish the fact that there was a small...