Lower Latham Ditch Co. v. Bijou Irr. Co.

• Decision Date: 04 November 1907
• Parties: LOWER LATHAM DITCH CO. et al. v. BIJOU IRRIGATION CO.
• Court: Colorado Supreme Court

93 P. 483

41 Colo. 212

LOWER LATHAM DITCH CO. et al. v. BIJOU IRRIGATION CO.

Supreme Court of Colorado

November 4, 1907

Rehearing Denied Feb. 3, 1908.

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Petition by the Bijou Irrigation Company against the Lower Latham Ditch Company and others to obtain a change in the point of diversion of water from an irrigation ditch. Judgment for petitioner, and certain respondents appeal. Affirmed.

H. N. Haynes and Goudy & Twitchell, for appellants.

James W. McCreery, for appellee.

CAMPBELL J.

This proceeding by appellee, as petitioner below, was under 'an act in relation to irrigation' (Sess. Laws 1809 p. 235, c. 105), and the object was to obtain a decree permitting a change of the point of diversion of the right to the use of water for irrigation originally decreed to the Frederick Bros. ditch, which is situate in water district No. 2, and now owned by petitioner, to the head gate of the Bijou ditch, also owned by petitioner, and situate in water district No. 1. The cause was referred to a referee to take evidence and make findings of fact and report a decree. The court, with some modifications and corrections approved of the referee's findings, and entered a decree in favor of the petitioner as prayed for. Some of the respondents appealed, and rely for reversal upon four grounds: (1) That the priority in question had been totally abandoned prior to its acquisition by the petitioner; (2) that a partial abandonment thereof occurred; (3) that the change, if allowed, would injuriously affect the vested rights of the respondents; (4) that the district court was without jurisdiction of the subject-matter of the petition.

The first two contentions are at rest in this jurisdiction. Trial and decision of the pending cause was had, and briefs were filed heré before publication of the opinion of this court in Wadsworth Ditch Co. v. Brown (Colo.) 88 P. 1060. We decided there that the statute under which such proceedings are conducted does not contemplate the determination of the question of abandonment. The statute provides for changes of the point of diversion where an adjudication of relative priorities has been had under the statutes enacted for that purpose. The presumption is that such rights continue in existence until a court of competent jurisdiction in an appropriate proceeding has otherwise determined, and no such determination has been had of this priority. We adhere to, and approve of, the former decision.

The record shows that appellants' claim of injury was, though not entirely, yet largely, based upon the assumption that the Frederick Bros.' priority had been abandoned in whole or in part, and thereafter appropriated and used by respondents. Since the issue of abandonment could not be herein determined, it necessarily follows that, in so far as appellants' claim of injury grows out of, or depends upon, a resolution of that issue in their favor, it cannot be upheld here.

We have examined with care the further claim that the evidence, aside from that concerning the issue of abandonment, proves that the desired change in the point of diversion, if made, would injuriously affect the vested rights of appellants. We think the finding of the referee, which was approved by the court, that appellants are not injuriously affected, is abundantly sustained by the evidence. It would serve no useful purpose to examine this evidence in detail; for decision of such issues depends so largely upon the facts of each particular case that determination in one case is of little or no value in another.

Counsel for appellants vigorously argues that vested rights of water consumers in district No. 1, which is farther down the natural stream than district No. 2, would necessarily be infringed by the contemplated change in the point of diversion from the original headgate of the Frederick Bros.' ditch in district No. 2 to the headgate of the Bijou ditch in district No. 1. If that be true, and we express no opinion about it, certainly appellants would not be affected thereby, for they own neither land nor water rights in district No. 1. They are concerned only as to the effect the change may have upon their own rights, as appropriators of water in district No. 2, and may not interpose an objection that consumers other than themselves would be hurt. Crippen v. Glasgow (Colo.) 87 P. 1073.

The only important or fairly debatable question in the case is that of jurisdiction. Appellants say that changes in the point of diversion from one water district to another are not within the purview of this statute. This is said to be so because the remedial statute requires proof that all parties who may be affected by such change have been duly...