McLean v. Farmers' Highline Canal & Reservoir Co.

• Decision Date: 06 July 1908
• Citation: 98 P. 16,44 Colo. 184
• Parties: McLEAN, Water Com'r, et al. v. FARMERS' HIGHLINE CANAL & RESERVOIR CO. et al.
• Court: Colorado Supreme Court

98 P. 16

44 Colo. 184

McLEAN, Water Com'r, et al. v. FARMERS' HIGHLINE CANAL & RESERVOIR CO. et al.

Supreme Court of Colorado

July 6, 1908

Rehearing Denied Nov. 11, 1908.

Error to District Court, Jefferson County; F. T. Johnson, Judge.

Action by the Farmers' Highline Canal & Reservoir Company and others to restrain Alexander McLean, water commissioner of the Seventh water district, and others, from interfering with plaintiffs taking water from an irrigation ditch. An ex parte injunction was modified by the district court, and defendants bring error. Reversed and remanded, with directions.

Goudy & Twitchell, for plaintiffs in error.

Geo. W Taylor, for defendants in error.

GABBERT J.

Plaintiffs in error, defendants below, were, respectively, as designated in the title, water commissioner of the Seventh water district, superintendent of irrigation for water division No 1, and state engineer. Water district No. 7 consists of lands irrigated from Clear creek and its tributaries. Water division No. 1 embraces lands irrigated from the South Platte river, other streams and their tributaries. In May, 1902, the superintendent of division No. 1 directed the commissioner of water district No. 7 to close down the headgates of allditches in his district of later priority than October 5, 1871, until further notice, in order that the Evans ditch, in water district No. 2, might obtain water to supply its priority, dated October 5, 1871. Water district No. 2 embraces the territory irrigated from the South Platte river and its tributaries, except Clear creek, the Big Thompson and St. Vrain rivers below the mouth of Clear creek and the mouth of Cherry creek. Defendants in error plaintiffs below, shortly after the order above referred to, filed a complaint in the district court upon which they asked and obtained an ex parte injunction against the defendants, plaintiffs in error here, restraining them from interfering with or preventing the plaintiffs from taking or receiving through the headgates of their respective ditches water to which they were entitled as decreed to them, and to which they were entitled according to the averments of their complaint, or from in any manner interfering or meddling with the headgates of plaintiffs' ditches, or preventing plaintiffs from raising such headgates and permitting the water to which they were entitled to flow into their ditches. This injunction was issued by order of the judge of the county court; it being alleged that the judge of the district court was absent from the county.

The respective pleadings of the parties are lengthy, but the following synopsis will sufficiently present the issues between them upon which they went to trial: According to their amended complaint, it appears that plaintiffs based their right to the relief demanded upon the ground that they owned certain adjudicated priorities to the use of water from Clear creek; that they had acquired the right to the use of 400 cubic feet of the flood waters of that stream; that they, their shareholders, and consumers had acquired a right to the use of water from Clear creek to the extent of their appropriations and acquisitions in such circumstances as to establish their right thereto by virtue of the statute of limitations; that in May, 1902, defendants threatened to cut off the supply to which they were entitled in order to supply consumers in district No. 2, and on the next day carried this threat into execution; that the defendants had illegally and unlawfully deprived them of the use of the water to which they were entitled; that they had present need therefor; that their rights thereto were superior to the appropriations in district No. 2; that the water of which they were deprived would not reach consumers in district No. 2 because it was lost by seepage and evaporation in flowing down the river; that consumers, though junior to plaintiffs in right, were permitted by defendants to take water from the Platte river and Clear creek in quantities which would supply the needs of consumers in district No. 2. It is finally charged that the danger is too imminent, and the damage which the plaintiffs will suffer will be irreparable, if they should be required to await the length of time which would be necessary to give the defendants the required notice of an application for a temporary writ of injunction. The prayer of the complaint is to the effect that a temporary writ of injunction issue restraining the defendants and their successors in office from interfering with, or in any manner preventing, the plaintiffs from taking or receiving through their several headgates the water from Clear creek to which they were entitled according to the averments of their complaint, and that they, the defendants, be further restrained from in any manner meddling or interfering with or shutting down the headgates of plaintiffs' ditches, or preventing the plaintiffs from raising their headgates and permitting the flow of water into their ditches to which they claim to be entitled, and that upon final hearing such injunction be made perpetual. By their answer the defendants denied that plaintiffs had acquired any right to the use of flood waters of Clear creek; denied that they had acquired any rights by virtue of adverse user; denied that ditches junior to those of plaintiffs were permitted to take water from either the river or Clear creek, set out in detail the dates and priorities of ditches as established by statutory proceedings, from which it appears that the priorities of the Farmers' Highline Canal & Reservoir Company antedated October 5, 1871; denied that the priorities of the Agricultural Ditch Company were subsequent to that date, that some of the priorities of the Rocky Mountain Ditch Company antedated October 5, 1871, and others were of later date, and that a great number of ditches in district No. 2 had priorities of date prior to October 5, 1871, that in order to supply the priorities in district No. 2, antedating this date, it was necessary to order the headgates of plaintiffs' ditches to be closed as to priorities junior to that date, and that the order of which plaintiffs complain was made for this purpose. They also challenged the sufficiency of the complaint by general demurrer. Subsequent to filing this answer defendants moved to dissolve the temporary injunction, with the result that it was modified so as to permit the superintendent to distribute the waters in division No. 1 in accordance with the decrees in the several districts in that division, provided there should be retained in district No. 7 water to the amount of 180 cubic feet in addition to the decreed priorities in that district, which excess water was to be prorated among the several ditches therein according to their priorities. The reply filed by plaintiffs to the answer of defendants was little more than a reiteration of some of the averments of the complaint, except it might be said they averred that the priorities of the ditches mentioned by defendants in their answer had been lost in a great measure by abandonment.

From the bill of exceptions it appears that the only question upon which testimony was admitted was whether the defendant Armstrong, as superintendent of irrigation, had properly and lawfully issued the orders set out in his answer for the purpose of furnishing water to supply the priorities in division No. 1, and whether he had sufficient data upon which to issue such orders and had taken the steps necessary to authorize him to issue them, and whether they were, under the circumstances, authority for the water commissioner in district No. 7 to adjust the headgates of plaintiffs' ditches, in accordance therewith. The trial court seems to have found as a fact that the superintendent had not performed his duties or complied with the law in this respect, and from this finding deduced the conclusion that the water officials were without jurisdiction to act in the premises in issuing the orders to close the headgates of plaintiffs' ditches. The trial court expressly held that, under the issues made by the pleadings, no testimony would be admitted in any way impeachng the priorities as adjudicated in the various districts, nor touching the acquisition of any additional water rights by virtue of the use by appropriation of flood waters or by long continued or uninterrupted use, for the reason that, to enter into a consideration of such questions, would necessitate a questioning of the rights of parties owning priorities in water division No. 1, who were not parties to the action. The judgment of the court was to the effect that until the water officials acquired jurisdiction or authority to act by collecting data with respect to the flow of water in the Platte river from reports and personal investigation, from which it would be made to appear that it was necessary to close down the headgates of plaintiffs' ditches in order to supply priorities in district No. 2, that the injunction issued as modified should continue in force, except the order retaining 180 feet of the waters of Clear creek in district No. 2, which was dissolved and set aside.

The principal question urged for consideration by counsel for the defendant water officials is that the complaint is fatally defective, in that it does not state facts sufficient to constitute a cause of action against these officials, and that the there is a lack of indispensable parties. The purpose of the action instituted by plaintiffs was to secure an injunction against the water officials preventing them from closing down the headgates of their ditches, or preventing the plaintiffs from raising them, and permitting the water to which they claimed to be entitled to flow into and through their ditches....