Medano Ditch Co. v. Adams

• Decision Date: 03 February 1902
• Parties: MEDANO DITCH CO. v. ADAMS. HUDSON et al. v. SAME.
• Court: Colorado Supreme Court

68 P. 431

29 Colo. 317

MEDANO DITCH CO. v. ADAMS.

HUDSON et al. v. SAME.

Supreme Court of Colorado

February 3, 1902

Appeal from and error to district court, Saguache county.

Consolidated actions by George H. Adams, trustee, against the Medano Ditch Company, and same plaintiff against Joshua B. Hudson and others. There were decrees in favor of plaintiff, and defendant in the former case appeals, and defendants in the latter bring error. Affirmed.

Appellee and defendant in error commenced separate actions below for the purpose of obtaining a decree enjoining appellant and plaintiffs in error from diverting water from Medano creek. Plaintiff in each case was the same party, and claimed to be the owner of appropriations of water for the purposes of irrigation from Big and Little Spring creeks which antedated any appropriation on the part of the defendants from Medano creek; that the latter was the source of supply of Big and Little Spring creeks, and, by the diversion on the part of defendants from Medano creek, the supply to which plaintiff was entitled and needed was diminished, to his damage. The court found these issues in favor of plaintiff, and entered decrees enjoining the defendants in each case from diverting any water from Medano creek from May 15th to October 1st of each year. From these decrees the defendant in the one case appeals, and in the other the defendants bring the case here for review on error. By agreement of parties the causes were tried below upon practically the same testimony. The issues of fact and questions of law involved are the same in each case, and will be considered together. The parties will be referred to in the opinion as plaintiff and defendants.

The following is a plat of the premises in question:

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Henry Hunter, J. C. Gunter, and John A. Gordon, for appellant and plaintiffs in error.

Walcott Vaile & Waterman (W. W. Field, of counsel), for appellee and defendant in error.

GABBERT J. (after stating the facts).

The first proposition advanced by counsel for defendants is that the testimony does not establish an appropriation by plaintiff of the waters of Big and Little Spring creeks which antedates the diversion of the waters of Medano creek by them. If the rights of plaintiff in this respect depended solely upon testimony to establish an actual application of the waters of Big and Little Spring creeks for the purposes of irrigation, this proposition might have some force. Such however, is not the case. In each of his complaints plaintiff claimed an appropriation of the waters of these streams through Los Ojos, Hull, South Number One, and South Number Two ditches. Water District No. 25 embraces the drainage of Medano and Big and Little Spring creeks. It appears from a decree of the district court of Costilla county, entered at the March term, 1895, and introduced in evidence, that under a statutory adjudication of water rights in that district the ditches in question were awarded different priorities, of specific volumes of water, from Big and Little Spring creeks, dating from March 10, 1875, to May 1, 1881. The ditches of defendants were constructed in 1892 and 1894. The water decree was prima facie evidence that appropriations of water for purposes of irrigation had been made from those streams of the dates and volumes awarded the ditches through which plaintiff asserts his rights, antedating the rights initiated by defendants.

It is next urged by counsel for defendants that the testimony does not establish that the waters of the Medano contribute substantially to those of Big and Little Spring creeks, and that, if they do, it is only by percolation. At the request of counsel for both sides, the trial judge viewed the premises. Whether or not the knowledge thus obtained should be given the effect of substantive testimony we do not determine. We must consider, however, that he was thereby better enabled to understand and apply the evidence of the respective parties on the subject under consideration. Our province in reviewing the testimony is to ascertain whether or not the findings of fact are supported by the evidence. If they are, we cannot interfere by substituting our judgment for that of the trial court upon the weight of the evidence in the case. Iron Co. v. Pryor, 25 Colo. 540, 57 P. 51. The testimony is very voluminous, and to notice it in detail would be impracticable. Its review will, therefore, be limited to a mention of those matters which tend to support the finding of the trial judge that Medano creek is the source of supply of Big and Little Spring creeks, for the purpose of ascertaining if there is sufficient legal evidence to support the finding on this subject. Medano creek rises near the summit on the westerly side of the Sangre de Cristo range, and flows southwesterly until, near the mouth of the cañon from which it issues, it is intercepted by a range of hills known as the 'Great Sand Dunes,' from which point its course is along the base of these hills on the east side, nearly south, until it reaches the south end, where it flows almost west. In this course it unites with Mosca creek, a small stream rising in the same range of mountains. When the water is low, it disappears in the sand of the channel at the base of these hills, sometimes at one point and sometimes at another, regulated in a great degree by the volume of water flowing. The sand hills begin at the base of the main range, and at or near this point are several hundred feet in height, several miles in width, and gradually diminish in altitude and width as they extend south, until merged in the San Luis valley. Big and Little Spring creeks rise on the west side of these hills, in a comparatively sandy level immediately adjoining their base. From the point where Medano creek is deflected in its general course, to the source of Big Spring creek, is about seven miles southwesterly, and from the point where the waters of the Medano ordinarily disappear, when high, the source of Little Spring creek is distant about three miles, almost west. The sources of Big and Little Spring creeks are relatively almost north and south of each other, and distant about three miles. Witnesses state that many years ago a well-defined channel of the Medano was plainly visible to the source of Little Spring creek, and that they had seen water running in this channel very close to the head of the latter creek. One witness in particular states that in 1863 or 1864 he had seen the water of Medano running to Little Spring creek. Other witnesses state that this occurred again in 1895. Witnesses also state that a well-defined depression, like an old channel of a water bed, extends from near the source of Big Spring creek in a northeasterly direction for a distance of about two miles, which, if continued in its course, would strike, after passing through the sand hills, about the mouth of Medano cañon; that, whenever the water of Medano creek diminishes, the waters of Big and Little Spring creeks also decline after a lapse of two or three weeks from the time when the waters of the Medano become low; that, when the Medano is muddy, the waters of Big and Little Spring creeks would also be rily, or show discoloration. Witnesses also state that, since the diversion by defendants from the head waters of Medano creek, there has been a marked decrease in the flow of Big and Little Spring creeks. The general drainage of the country, with the exception of the Medano, is towards the west. According to surveys, the most rapid line of descent from near the mouth of Medano cañon is in the direction of Big Spring creek.

The theory of plaintiff is that the San Luis valley was at one time a great lake, the eastern shore of which was near the present sources of Big and Little Spring creeks; that, when the lake disappeared, the sands of its bed were blown across the valley by the prevailing westerly winds, and deposited upon the wash and drift extending from the base of the main range immediately adjoining the mounth of the cañon of the Medano, and constituting the divide between that stream and Sand creek on the north, and Mosca on the south; that, before this deposit occurred, the natural channel of Medano creek extended through this wash and drift in the same general direction of the cañon, which would carry it on a line with the present channel of Big Spring creek; that the accumulation of sand in its original channel finally became so great that the waters were unable to longer cut their way through and over it on the surface, but that they continued to flow or percolate through the coarse sand, gravel, and boulders composing the original bed of the creek, and finally emerged as the source of Big Spring creek; that the obstruction of the old channel prevented all the waters from passing into the valley in that way, and, as the sands gradually accumulated and raised, the excess water flowed over them in a general southerly direction along the eastern base of the sand hills, uniting with Mosca creek, and resulting in the creation of Little Spring creek; that the continuous flow of Mosca creek upon the surface was obstructed by the sand causes, and that the flow of Little Spring creek is practically on and over the ancient bed of Mosca creek. Scientific writers on the geological...