Hinderlider v. La Plata River Cherry Creek Ditch Co

• Decision Date: 25 April 1938
• Docket Number: No. 437,437
• Citation: Hinderlider v. La Plata River Cherry Creek Ditch Co, 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938)
• Parties: HINDERLIDER, State Engineer, et al., v. LA PLATA RIVER & CHERRY CREEK DITCH CO. *
• Court: U.S. Supreme Court

304 U.S. 92

58 S.Ct. 803

82 L.Ed. 1202

HINDERLIDER, State Engineer, et al.,

v LA PLATA RIVER & CHERRY CREEK DITCH CO.^*

No. 437.

Argued Feb. 10, 11, 1938.

Decided April 25, 1938.

[Syllabus from pages 92-94 intentionally omitted]Messrs. Ralph L. Carr and Jean S. Breitenstein, both of Denver, Colo., Byron G. Rogers, Atty. Gen. of Colo., and Shrader P. Howell, Asst. Atty. Gen. of Colo., for appellants.

Messrs. Charles J. Beise and Reese McCloskey, both of Durango, Colo., for appellee.

Mr. Justice BRANDEISdelivered the opinion of the Court.

The La Plata River & Cherry Creek Ditch Company, a Colorado corporation, owns a ditch by which it diverts from that river in Colorado water for irrigation.On July 5, 1928, it brought in the district court for La Plata county a suit which charged that since June 24, 1928, the defendants, Hinderlider, State Engineer of Colorado, and his subordinates, have so administered the water of the river as to deprive the plaintiff of water which it claims the right to divert.A mandatory injunction was sought.

The defendants admit that in administering the water of the stream during the period named they shut the headgate of the Ditch Company so as to deprive it of water for purposes of irrigation; but assert that they did so pursuant to the requirements of the La Plata River Compact entered into by the States of Colorado and New Mexico with the consent of the Congress of the United States.The Compact provides that each State shall receive a definite share of water under the varying conditions which obtain during the year, and, among other thing:¹

'1.At all times between the 1st day of December and the 15th day of the succeeding February each State shall have the unrestricted right to the use of all water which may flow within its boundaries.

'2.By reason of the usual annual rise and fall, the flow of said river between the 15th day of February and the 1st day of December of each year shall be approtioned between the States in the following manner:

'(a) Each State shall have the unrestricted right to use all the waters within its boundaries in each day when the mean daily flow at the interstate station is one hundred cubic feet per second, or more.

'(b) On all other days, the State of Colorado shall deliver at the interstate station a quantity of water equiv- alent to one-half of the mean flow at the Hesperus station for the preceding day, but not to exceed one hundred cubic feet per second.

'3.Whenever the flow of the river is so low that in the judgment of the State engineers of the States the greatest beneficial use of its waters may be secured by distributing all of its water successively to the lands in each State in alternating periods, in lieu of delivery of water as provided in the second paragraph of this article, the use of the waters may be so rotated between the two States in such manner, for such periods, and to continue for such time as the State Engineers may jointly determine.'

For the administration of water rights, Colorado and New Mexico each set up an administrative system with the State Engineers at its head.The State Engineers agreed that, in order to put the water to its most efficient use in the hot summer months of 1928, when the river was very low, the whole of the available supply should be rotated between the two States.In other words, that each State should be permitted to enjoy the entire flow of the river during alternating ten-day periods.During the ten days commencing June 24, 1928, all the water of the river (except small amounts diverted in Colorado for domestic and stock requirements) was thus allowed to pass to New Mexico; and during the succeeding ten-day period all the water in the stream was similarly allowed to be diverted in Colorado.The defendant water officials contend that in so rotating the water of the stream they administered it as required by the Compact and wisely.

The La Plata River rises in the mountains of Colorado, flows in a southerly direction until it reaches the boundary of New Mexico and in the latter State until it empties into the San Juan River.The stream is nonnavigable; has a narrow watershed; and a large run-off in the early spring.Then the quantity flowing begins to fall rapidly and during the summer months little water is available for irrigation.In each State the water of the stream has long been used for irrigation; and each adopted the so-called appropriation doctrine of water use.²Under that doctrine the first person who acts toward the diversion of water from a natural stream and the application of such water to a beneficial use has the first right, provided he diligently continues his enterprise to completion and beneficially applies the water.The rights of subsequent appropriations are subject to rights already held in the stream.

The relative rights of all claimants to divert in Colorado water from the La Plata River were adjudicated in a proceeding under the Colorado statutes.By decree therein of January 12, 1898(and later amended), the Ditch Company was declared entitled to divert 39 1/4 cubic feet of water per second, subject to five senior priorities aggregating 19 second feet.On June 24, 1928, there was in the stream, at the recognized Colorado gauging station, 57 second feet of water.The Ditch Company claimed that by reason of the 1898 decree it was entitled to all the water in the stream except that required to satisfy the Colorado priorities.If it had been permitted to draw all that water, none would have been available to the New Mexico water claimants, who, under similar laws, had made appropriations.Some of them were earlier in date than the Ditch Company's.

The case was first heard in the District Court on evidence in 1930.The Ditch Company objected at the trial to the admission or consideration of the Compact.It insisted that the Compact attempted to surrender to New Mexico, and thus destroy. vested property rights of Colorado citizens; that this is a violation of the obligations of its contract; and that the Compact in so far as it 'applies or is intended to apply to private rights of the individuals or citizens of Colorado, or to be used as a defense of or justification for the acts of the State Engineer or his subordinates in interfering with or violating the private rights of citizens of Colorado, or in attempting to disregard, ignore or set aside the decrees of this (District) Court for the distribution of water in accordance with the decrees, is unconstitutional and void,' in violation of the due process clauses of the Fifth and Fourteenth Amendments of the Federal Constitution and of article 2, section 25 of the Constitution of Colorado.

The District Court overruled the objection; found in substance the facts stated above; held that the Compact justified the action of defendants; and entered a decree that the bill be dismissed, each party to bear its own costs.That judgment was reversed by the Supreme Court of the State(one judge dissenting), La Plata River & Cherry Creek Ditch Co. v. Hinderlider, 93 Colo. 128, 25 P.2d 187, 189.The opinion declared: 'There is not the slightest pretense, either in this compact itself or in the proceedings leading up to it, to a decision of the question of what water Colorado owns, or what water New Mexico owns, or what their respective citizens own.It is a mere compromise of presumably conflicting claims, a trading therein, in which the property of citizens is bartered, without notice or hearing, and with no regard to vested right.'

An appeal to this Court was dismissed for want of final judgment below.Hinderlider v. La Plata River & Cherry Creek Ditch Co., 291 U.S. 650, 54 S.Ct. 557, 78 L.Ed. 1044.The case was then retried by the Distric Court on the same pleadings and evidence; and, pursuant to the opinion of the Supreme Court of Colorado, a decree was entered which, after reciting in substance the facts above stated, declared: '6.That the said La Plata River Compact, entered into between the States of Colorado and New Mexico with the consent of the Congress of the United States of America, does not constitute a defense to the actions of said defendant water officials complained of by plaintiff, and is not available to said defendant water officials, as a legal defense or justification for their acts in closing and shutting down the headgate of plaintiff and depriving the said plaintiff, thereby, of its right to the use of the waters from said La Plata River for irrigation purposes, as provided by the terms and provisions of said decree of adjudication of January 12, 1898.'

The decree specifically: '(3) Enjoined and commanded (the defendants) to permit the diversion through the plaintiff's headgate (of) water for plaintiff's ditch in accordance with the terms of said decree at any and all times when there is water in said stream to which said decree, under its terms and conditions would apply:'

This second judgment of the trial court was affirmed by the Supreme Court of the State; an additional opinion being delivered by the court, and a dissent by a different justice.101 Colo. 73, 70 P.2d 849.An appeal to this Court was allowed by the Acting Chief Justice of the State.³Pursuant to the Act of Congress, August 24, 1937, c. 754, 50 Stat. 751, 28 U.S.C.A. §§ 401, 349a, 380a and note 17 and note, the attention of the Attorney Gen- eral of the United States was directed to the contention that the validity of a federal statute is involved, 302 U.S. 646, 58 S.Ct. 123, 82 L.Ed. —-.He filed memoranda in which he contended that: '(1)This Court is included in the courts to which section 1 of the Act of August 24, 1937(28 U.S.C.A. § 401) is applicable; (2) the constitutionality of the compact is drawn in question whether or not a decision on this point is necessary; (3) a compact is an Act of Congress; and (4) it is an Act 'affecting the public interest."

Opposing some of the views expressed by the Attorney...