In re German Ditch & Reservoir Co.

• Court: Colorado Supreme Court
• Writing for the Court: HILL, J.
• Citation: In re German Ditch & Reservoir Co., 139 P. 2, 56 Colo. 252 (Colo. 1913)
• Decision Date: 01 December 1913
• Parties: In re GERMAN DITCH & RESERVOIR CO. et al.

139 P. 2

56 Colo. 252

In re GERMAN DITCH & RESERVOIR CO. et al.

Supreme Court of Colorado, En Banc.

December 1, 1913

Rehearing Denied March 2, 1914.

Appeal from District Court, City and County of Denver; Harry C Riddle, Judge.

In the matter of the application of the German Ditch & Reservoir Company for the adjudication of priority of water rights in Water District No. 2, situate in what was formerly known as Arapahoe and Weld Counties, now in Adams and Weld Counties Colo., and on petition of the Platte Valley Irrigation Company, etc., for reargument, review, and rehearing. Petition for reargument granted, and, from an order denying petitioners' relief, they appeal. Reversed and remanded with instructions.

Goudy & Twitchell and J. H. Burkhardt, all of Denver, for appellants.

George S. Redd, Edwin H. Park, and Smith, Brock & Ferguson, all of Denver, W. W. Platt, of Alamosa, Jacob Fillius, of Denver, and J. W. Barnes, of Golden, for appellees.

HILL J.

On May 19, 1906, the German Ditch & Reservoir Company filed in the district court of the city and county of Denver its petition entitled 'In the Matter of the Application of the German Ditch & Reservoir Company for the Adjudication of Priorities of Water Rights in Water District No. 2, Situate in What Was Formerly Known as Arapahoe and Weld Counties, Now in Adams and Weld Counties, State of Colorado.' The petition sets forth that the petitioner is the owner of the German ditch situate in water district No. 2 in Adams and Weld counties, and is also the owner of certain reservoirs used in connection with said ditch, which reservoirs are situate in water district No. 2 in Adams and Weld counties; that said ditch and reservoirs take their water from Dry creek in said water district, an intermittent stream in no way connected with any other natural water source; that the water taken by petitioner therefrom is for irrigation purposes for land along the line thereof; that the petitioner is interested as such owner in the adjudication of priorities of right to the use of water of said stream and tributaries thereof for irrigation purposes in said water district No. 2; that there are other ditches along the line of Dry creek claiming water therefrom for the purposes of irrigation whose rights of priority, together with those of the petitioner, should be adjudicated in the manner as is provided by law. The prayer reads: 'Wherefore your petitioner prays that your honor will proceed to an adjudication of the priorities of right to the use of water for irrigation purposes between the several ditches, canals, and reservoirs and the owners of water rights in said water district No. 2 in said state under the provisions of the Constitution and the laws of the state of Colorado in that behalf provided.'

An order was entered appointing a referee, to whom was referred the petition and all statements of claims to the use of water for irrigation from the natural streams of said water district theretofore filed, or that might be thereafter filed in said proceeding. The order included instructions to take evidence, etc., and vested in the referee all powers and duties required of referees pertaining to such adjudications. The referee accepted the appointment, took the oath of office, and executed his notice to all persons interested as owners or consumers of water in water district No. 2, including therein the times and places for the filing of statements, the hearing of evidence, etc. The only purported service upon the other appropriators in the district is by proof of the publication of this notice for the required time in newspapers in Adams county, and in the city and county of Denver, with an affidavit of the posting, for the time required, of ten or more copies of the notice in Adams county. The referee proceeded to take evidence; filed his final report andrecommendations, for which he presented bills against the counties of Adams, Weld, Boulder, Jefferson, and Arapahoe, which, by order of the court, were ordered paid by these counties in harmony with the general adjudication statutes. The referee's report discloses that some eight or nine persons and corporations appeared and filed their statements of claim for eight or nine ditches and about seventeen reservoirs, concerning which evidence was taken. He recommended that priorities be decreed to these ditches and reservoirs from Dry creek of approximately 140 cubic feet of water per second of time to the ditches, and about 100,000,000 cubic feet for storage purposes for the reservoirs. Upon May 22, 1908, a decree was entered by the court, which in general was in harmony with the recommendations of the referee. This decree purports to fix and establish the priorities of the claimants to water to be obtained from Dry creek for the ditches and reservoirs of the persons and corporations who filed in this particular action their statements of claim. It also decrees that the priorities therein awarded do not interfere and are not in conflict with those of other consumers in this water district.

Upon March 17, 1909, the Platte Valley Irrigation Company, the Fulton Irrigating Ditch Company, and the Farmers' Independent Ditch Company, after giving notice to all parties named in this decree, filed their petition of intervention, praying that the court grant to them and others who might see fit to come in a rehearing, review, and reargument; that they be permitted to introduce testimony which would enable the court to determine whether said Dry creek is a natural stream, and whether the parties who had theretofore participated in said proceedings were entitled to the priorities decreed them; that the court permit a hearing upon the sufficiency of notice in said alleged proceeding, and the validity of the so-called decree, to the end that the interest of all parties in the use of water in water district No. 2 be fully maintained. This petition alleges that in April, 1883, in pursuance of proceedings duly had as provided by statutes, a decree was duly entered in the district court of Arapahoe county (now the city and county of Denver) adjudicating the water priorities and rights of the various ditches then having their headgates in water district No. 2, taking water from the South Platte river and its tributaries within said water district, including Dry creek, mentioned in the present cause. It sets forth the numbers and dates of the priorities awarded to each ditch under the earlier decree, with the dates of their respective appropriations; this includes priorities both antedating and subsequent to the dates of some of those named in the 1908 decree. This is followed with the allegation that at the date of this 1908 decree the interveners were the owners of certain ditches which were awarded certain priorities by the 1883 decree. It is then alleged that upon account thereof the petitioners are entitled to the respective amounts of water decreed to them, and that by such decree all the waters of said Dry creek and its tributaries in said water district No. 2 were adjudicated. This is followed by allegations of another decree entered in 1888, adjudicating certain other priorities upon Dry creek. It is also alleged that the Dry creek mentioned in the various petitions in this action is a natural stream, and a tributary of the South Platte river; that ever since the entering of the 1883 decree the petitioners and others having priorities of water under said decree have required, in the irrigation seasons, all the waters flowing into the South Platte river and its tributaries coming into said water district No. 2, except in extreme high floods; that all the water coming into said Dry creek from precipitation, and from seepage and other sources, has at all times flowed down the channel of said Dry creek into the channel of the South Platte river, and been utilized and is a part of the natural flow of the South Platte river, and of the said Dry creek, in supplying the priorities of the petitioners and others similarly situate in water district No. 2, having priorities under the 1883 decree, except where the same has been unlawfully utilized and diverted from the channel of Dry creek by ditches junior to those of these petitioners and others similarly situate in said water district. It then sets forth how and why the petitioners are injured upon account of this unlawful diversion.

It is alleged that the referee, in attempting to give notice of the proceeding, did not comply with the statutes; that neither the German Ditch & Reservoir Company, the clerk of the court the referee, nor any other person served a notice as required by statute upon the petitioners, nor upon any of the parties similarly situate; that the petitioners owned and claim an interest in priorities and ditches in said district, which ditches take their supply from the South Platte river and its tributaries; that on or before the 1st of June, 1881, they filed with the clerk of the district court of Arapahoe county (now city and county of Denver), having jurisdiction of the priority of right for the use of water for irrigation in said water district No. 2, statements of claim under oath entitled in the proper court, and in the matter of priorities of water rights in said water district No. 2; that at the time of said attempted adjudication the appellants had on file in the office of the clerk of the court their statements of claim filed with the clerk in compliance with section 3277, Revised Statutes 1908; that petitioners had no actual or other notice of such proceedings, etc.; and that upon rehearing they will be able to show that said decree interferes and affects vested rights held in them, and purports to decree to the other claimants priorities for water owned by said petit...