Hallenbeck v. Granby Ditch & Reservoir Co.

• Decision Date: 03 October 1966
• Docket Number: No. 20889,20889
• Citation: 160 Colo. 555,420 P.2d 419
• Parties: C. V. HALLENBECK, Plaintiff in Error, v. The GRANBY DITCH AND RESERVOIR COMPANY, Defendant in Error.
• Court: Colorado Supreme Court

Page 419

420 P.2d 419

160 Colo. 555

C. V. HALLENBECK, Plaintiff in Error, v. The GRANBY DITCH AND RESERVOIR COMPANY, Defendant in Error.

No. 20889.

Supreme Court of Colorado, En Banc.

Oct. 3, 1966.

As Modified on Rehearing Dec. 5, 1966.

Conklin, Carroll & Willett, Delta, for plaintiff in error.

A. Allen Brown, Delta, for defendant in error.

SUTTON, Chief Justice.

This is a water reservoir storage case under C.R.S. '53, 147--9--22 involving a change in points of storage on Dirty George Creek in Delta County. The matter was here previously and was then remanded to the trial court for re-trial '* * * with the view to determining whether injuries were posed to the junior right holders by the proposed change.' Hallenbeck v. Granby Ditch and Reservoir Company, 144 Colo. 485, 357 P.2d 358 (1960). We shall refer to C. V. Hallenbeck, the Plaintiff in Error, and sole present 'objector' as such or by name, and, to the Defendant in Error, as Granby or the petitioner.

Reference should be made to the first Hallenbeck opinion for the prior history of this dispute, though on re-trial the case was heard on a different plan of development and some different facts. Suffice it to say here that at the re-trial it was shown that the map printed in 144 Colo. at p. 488, 357 P.2d 358, due to later discovered evidence, was not accurate in that Reservoir No. 10 actually is now located in the area of Reservoir No. 12, and, Reservoir No. 4 apparently has no decreed storage rights and is now part of Reservoir No. 5 and should be so considered. In addition, the chart listing the various decreed rights, which appears in 144 Colo. at p. 489, erroneously shows that Granby No. 1's 1937 adjudicated decree is 57.43 c.f. whereas it should read 76.02 c.f.

For the purposes of this writ of error we must now detail the pertinent events relating to the re-trial.

Granby, in its 1955 petition for change, sought a 'blanket decree' for its purported 12 reservoirs. It desired to store its adjudicated waters wherever it wished in its reservoirs and in no particular sequence. Junior holders, below the point of discharge of Granby's waters, objected claiming injury.

In 1961 the trial court, pursuant to the directive of this court, set the new trial and directed the petitioner to submit a plan on how it intended to fill its reservoirs. Granby was specifically to show that the plan would not harm vested junior rights. It appears that in the meantime, since the action originally began, petitioner had gone ahead and raised or changed the dams in Reservoirs referred to in the record as 5--11. The latter consisting of the map areas shown in 144 Colo. at p. 488 as Reservoirs 4, 5, 8, 9, 10 and 11. In our references to this group of Reservoirs hereafter it must be understood that No. 10 (now being part of No. 12) is considered, in fact, to be non-existent in that area and that No. 4 has no standing. We are thus dealing with the question as to whether the trial court properly granted petitioner's modified request to move the storage formerly decreed to Reservoirs 1, 2 and 3 to the new 5--11 area.

By February 5, 1962, petitioner submitted its first plan to repair and enlarge 5--11 and to move only 1 and 2 storage there. It stated that no injury would accrue to any junior appropriators. Hallenbeck, however, did object and after a pre-trial conference the court directed petitioner to file another plan and gave leave to file an additional statement. The record fails to disclose that any additional plan was filed, however, in March 1962 Granby did file an amended petition followed by a re-amendment in May 1962. Evidently this was considered to be a plan for this time petitioner sought to move No. 2 and 3 storage to 5--11; and, sought temporary storage in 5--11 of No. 1, the storage of No. 1 to be made permanent later.

Finally, the matter went to trial in December 1962. As stated above, by that time the plan and issue were whether Nos. 1, 2 and 3 storage decrees could be moved to the enlarged 5--11 Reservoirs. At this time, for reasons that hereinafter appear, it should be noted that No. 9, which lies to the southeast of No. 5, is lower in elevation than 5--11 and is connected to 5--11 by a conduit.

Transposing the storage capacity in this action into figures we find that petitioner sought, and the trial court granted it, the right to relocate 313.62 a.f. of decreed water storage rights from Nos. 1, 2 and 3 to an enlarged reservoir covering the old Nos. 4 and 10 and the existing 5 and 11, later being connected with Nos. 8 and 9 by conduits or ditches. We note, in this connection that the decrees for Nos. 5, 8, 9 and 11 total 496.75 a.f. since No. 10 cannot be counted and No. 4 has no rights. This, plus 313.62 a.f. total for Reservoirs Nos. 1, 2 and 3 totals 810.37 a.f. This contrasts with the 843.40 a.f. which the court actually found in this action could be stored in 5--11 and 9 and which would result in an overdecree (assuming the trial court was correct in ordering the change) of 33.03 a.f. if the court had carried the error through into its judgment, which it fortunately did not do. The trial court also required, by its decree, that certain ditches and outlets have proper measuring devices installed and that petitioner could have three years from the date of judgment to perform necessary work and repairs on Reservoirs Nos. 6 and 8 so that they could hold their decreed amounts.

Hallenbeck's motion for a new trial was denied in September 1963 and he seeks relief by writ of error urging six grounds for reversal which we summarize as follows:

(1) That under the guise of changing the place of storage from one location to another a Reservoir Company cannot properly enlarge its reservoir capacity to store more water than it had been storing prior to the change and thus deplete the stream to the damage of a downstream junior appropriator;

(2) That the actual amount of former storage in certain Reservoirs (here 1, 2 and 3) is important in this case and the burden of showing the amount thereof is on the petitioner;

(3) That as a matter of law the change sought here will injure the objector, irrespective of capacity and former usage, because the change is to a point alleged to be 1 1/3 miles downstream, at a lower elevation with a larger watershed. Specifically, Hallenbeck asserts that the time of delivery of his decreed water is interfered with by Granby's new storage plan;

(4) That an abandonment occurred here as to certain of petitioner's rights since it had voluntarily breached one of the dams some years earlier, another dam had washed out, with neither being repaired, and, that none of these three reservoirs (1, 2 and 3) had ever, in the past, stored their full decreed amounts;

(5) That the trial court erroneously decreed a new place of storage for No. 10's waters for various reasons; and,

(6) That it was error to allow Granby three years in which to repair its Reservoirs 6 and 8 so as to enable them to carry their decreed water.

Before commenting on Hallenbeck's claims of error it is well to note carefully just what the trial court held in its lengthy Findings of Fact, Conclusions of Law and Judgment. As pertinent here, in substance, it found:

(1) That the petitioner was not again seeking a 'blanket decree';

(2) That the objector had the burden of proof to show that Reservoirs Nos. 1, 2 and 3 Never had the capacity to store all their decreed water; that such is an affirmative defense and that Hallenback failed to meet his burden;

(3) That the objector failed to meet his burden of proof as to his claim of abandonment; and,

(4) That the change in the place of storage will not injure the objector or other downstream junior appropriators.

In view of the intertwinment of facts and law involving Hallenbeck's first four grounds urged for reversal we shall now consider them together.

The evidence is that Granby has decreed rights to 133.45 a.f. of water storage for Reservoir No. 1, 172.17 a.f. for No. 2 and 8 a.f. for No. 3, a total of 313.62 a.f. That is what the trial court held could be transferred. The evidence is in dispute as to whether the distance is one-half mile or 1 1/3 miles from the outlet of No. 1 to the inlet of old No. 4. It seemingly depends on whether one goes as the crow flies or via the stream bed. We cannot see that such is too material, however, since all the waters in Nos. 1, 2 and 3 eventually pass into what is now 5--11 and have always done so far above the point of Hallenbeck's take-out ditch. The only materiality being whether any water Now spills over into No. 9 as will be discussed later herein. Also, there is disputed evidence as to the drop in elevation, the amount of forestation and even as to which direction one of the reservoirs drains in. There is no dispute that the watershed [160 Colo. 564] at 5--11 is larger than that of 1, 2 and 3 or that the objector receives his water far below 5--11. On the other hand, the evidence is that there will be better water management if 1, 2 and 3 have their water stored in the enlarged 5--11 and also, that there will be much less surface evaporation, thus making more water available for all the parties.

It is well to bear in mind here that the law relating to a change in the point of diversion on a stream is also generally applicable to a request for a change in a place of storage. Hallenbeck, supra. Appropriate to this comment it is well to consider next whether the objector can properly assert, in this action, that the petitioner's Reservoirs 1, 2 and 3 never had the storage capacity to hold their full decreed amounts of water. Granby asserts such is an attempted collateral attack--and we agree. Here petitioner's rights were decreed in 1907 and 1937. Each certified copy of a decree in the record recites the storage capacity claimed. Each such decree was open to attack on such ground only for the statutory periods prescribed by C.R.S. '53, 147--9--16 and 147--9--17, which...