Metropolitan Denver Sewage Disposal Dist. No. 1 v. Farmers Reservoir & Irr. Co.

• Decision Date: 19 June 1972
• Docket Number: No. 24077,24077
• Citation: 499 P.2d 1190,179 Colo. 36
• Parties: METROPOLITAN DENVER SEWAGE DISPOSAL DISTRICT NO. 1, a district, and City and County of Denver, Acting By and Through its Board of Water Commissioners, Plaintiffs in Error, v. The FARMERS RESERVOIR AND IRRIGATION COMPANY, a Colorado corporation, et al., Defendants in Error.
• Court: Colorado Supreme Court

Page 1190

499 P.2d 1190

179 Colo. 36

METROPOLITAN DENVER SEWAGE DISPOSAL DISTRICT NO. 1, a district, and City and County of Denver, Acting By and Through its Board of Water Commissioners, Plaintiffs in Error, v. The FARMERS RESERVOIR AND IRRIGATION COMPANY, a Colorado corporation, et al., Defendants in Error.

No. 24077.

Supreme Court of Colorado, En Banc.

June 19, 1972.

Rehearing Denied July 10, 1972.

Saunders, Dickson, Snyder & Ross, P. C., Glenn G. Saunders, George L. Zoellner, Denver, for plaintiffs in error City and County of Denver.

Inman, Flynn & Coffee, P.C., John J. Flynn, Jr., Robert D. Inman, James D. Geissinger, Denver, for plaintiff in error, Metropolitan Denver Sewage Disposal Dist. No. 1.

Akolt, Shepherd, Dick & Rovira, Robert A. Dick, Stuart S. Gunckel, Denver, Miller & Ruyle, David J. Miller, Greeley, for defendants in error.

GROVES, Justice.

The defendants in error (plaintiffs) have decreed rights for irrigation purposes out of the South Platte River. In about 1937 Denver constructed a sewage treatment facility known as the Denver Northside Plant. Effluent from this plant was discharged into the South Platte River above the common headgate of the plaintiffs. Beginning in about 1966 the effluent from Denver's sewage was placed in the river downstream from this headgate. The plaintiffs brought before the court this declaratory judgment action asking, among other things, that it be adjudged that the plaintiffs are entitled to have effluent placed in the river above this headgate. The trial court ruled in favor of the plaintiffs. We reverse.

The parties placed this matter before the trial court upon an agreed statement of facts.

Counsel for Denver stated that the appropriations of the plaintiffs were made before and after the commencement of the Northside Plant operations. However, the priority dates listed in the briefs and statements of fact are all prior to 1937 (being 1885 to 1922), and thus we assume that there are other later priority decrees not mentioned. We also assume that, prior to the operation of the Northside Plant, Denver Sewage reached the river above the headgate. ¹

Nearly every decree for South Platte River water diverted downstream from Denver is dependent for its supply upon return flow of waste and seepage waters. See Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107 (1913). The only inference to be drawn from the statement of facts is that, absent either effluent discharge above the headgate or change of the plaintiffs' point of diversion to a place below the plant, the plaintiffs' decrees will be substantially unfilled.

When constructed, the Northside Plant met existing health requirements. It subsequently became inadequate due to population growth and higher health standards. As a result, the plaintiff in error Metropolitan Sewage District No. 1 (Metro) was created and its plant went into operation in about 1966 at a location one and one-half miles downstream from the plaintiffs' headgate. Under contract, Metro receives raw and preliminarily treated sewage from Denver and other municipalities and districts. After treatment, the effluent from Metro's plant is discharged into the South Platte River at a point near the plant.

Plaintiffs brought the action solely against Metro and the contractor, who at the time of commencement of the action was constructing Metro's plant. A dismissal was entered later as to the contractor upon motion of the plaintiffs. Denver was permitted to intervene. The defendants-appellees in City and County of Denver etc. v. Fulton Irrigating Ditch Company mentioned in footnote 1 also intervened, but withdrew when it was stipulated that the issues concerning transmountain water would not be before the court here and would be litigated in Fulton Irrigating Ditch Company.

The effluent with which we are concerned here is solely from water arising in the South Platte watershed, which has been acquired by Denver, and, after use within Denver, has been transported through Denver's sewer system to Metro's plant. Not involved is Denver-owned water which reaches the Metro plant through sewers other than those of Denver. Also, not involved is transmountain water brought from Colorado River tributaries west of the Continental Divide to the Denver area.

While permitting other municipal entities to use its water, Denver has attempted to retain control over the water following those uses, and those portions of this water which return to Denver's sewer system may well be only in the same category here as Denver-appropriated water used in Denver and returning via Denver's sewer system. In perhaps a super-abundance of caution, however, we exclude all Denver water used under contract with other municipal entities, regardless of how it returns to the stream.

I

Under the agreed facts and the contractual provisions between Denver and Metro, it is plain--and we hold--that, once Metro completes treatment of Denver sewage, the nature and extent of Denver's control over the resulting effluent is the same as if Denver alone had treated it. The plaintiffs appear to argue that, since Metro is an entity entirely separate from Denver and since it dumps the effluent into the river, Denver is not involved and any rights of plaintiffs are to be asserted solely against Metro. The trial court rendered judgment in favor of the plaintiffs and solely against Metro. In its oral announcement it stated that, being separate entities, possession by one would not be possession be all. ² Also, in its oral pronouncement the court made the following statements:

'Metro . . . can't lawfully intercept water returning to the river and appropriate and thereby obtain in 1965 a priority of use, senior to the Plaintiffs in this case, whose agreed rights have been beneficially applied for a period of more than 50 years.'

We view the matter differently.

In our view, the possession of the sewage in effluent by Metro is in the nature of possession by an agent, an agent for Denver. While no doubt Metro is an indispensable party here, the real party in interest is Denver. Whatever disposition Denver may make of the effluent, Metro can make; and whatever disposition Denver cannot make is proscribed to Metro.

II

Since the water originates in the South Platte watershed, by reason of Pulaski Irr. Ditch Co. v. City of Trinidad, 70 Colo. 565, 203 P. 681 (1922), no one questions that the effluent must be returned to the stream without disposition to others by Denver.

We sense an underlying sentiment (or hope) by Denver that the plaintiffs may have the effluent involved to the extent of their decrees. Be that as it may, it is apparent that the parties are concerned primarily with the question of who shall bear the cost of transporting the water from the new place of discharge to the initial (common) section of the plaintiffs' ditch. Before proceeding further, we wish to emphasize that we are not expressing any opinion on the right of plaintiffs to the effluent. Rather, we are concerned with whether Denver, acting through Metro, may change its point of effluent discharge into the stream at the Metro plant with impunity as against the plaintiffs' objection. Holding that Denver may do so ordinarily would lead us to a discussion of whether a change of point of diversion by plaintiffs is in order. That question, however, was removed from the consideration by the trial court and consideration here by the following provision of the agreed statement of facts:

'11. The place of discharge for the metro-Denver Plant is below the 'common headgate' such a distance that effluent enters the South Platte River at a place where diversions for the benefit of the 'common headgate': could only be made physically, by moving the 'common headgate' to a place on the South Platte River below such place of discharge, with a ditch relocation, or by pumping the water up and into a place in the Burlington Ditch (the initial common ditch of the plaintiffs) below the 'common headgate.' Whether either physical procedure would require the securing of new or alternate points of diversion under Colorado Statutory law is not involved in this proceeding.'

III

In its oral announcement, the trial court stated in effect that the rules governing change of Point of return (to the stream) are the same as those governing change of Point of diversion, citing Brighton Ditch Co. v. Englewood, 124 Colo. 366, 237 P.2d 116 (1951), and Fort Collins Milling & Elevator Co. v. Larimer and Weld Irr. Co., 61 Colo. 45, 156 P. 140 (1916). An appropriator may not change his point of diversion except upon conditions which eliminate injury to other appropriators. See Farmers Highline Canal & Reservoir Co. v. Golden, 129 575, 272 P.2d 629 (1954) and cases cited therein. The plaintiffs argue similarly that they are entitled to conditions on the stream as they have existed, citing Farmers Highline Canal & Reservoir Co. v. Golden, Supra; Monte Vista Co. v. Centennial Irrigating Ditch Co., 24 Colo.App. 496, 135 P. 981 (1913); Farmers' Highline & Reservoir Co. v. Wolf, 23 Colo.App. 570, 131 P. 291 (1913); and Vogel v. Minnesota Canal & Reservoir Co., 47 Colo. 534, 107 P. 1108 (1910). We cannot agree with the argument of the plaintiffs and the conclusion of the trial court. The cases cited by them and listed above are all change of point of diversion, and not change in point of return, cases. To us, they are not persuasive. Plaintiffs also cite Comstock, State Engineer v. Ramsay, 55 Colo. 244, 133 P. 1107 (1913), which involves the lack of right to intercept waste water which is proceeding toward the stream, and does not involve the right to change the point of return.

Changes of points of return of waste water are not governed by the same rules as changes of points of diversion. Conceivably, there may be instances (perhaps in the case of power water) in which a change of point of return may be enjoined, but this is not one of them. In Green Valley Ditch...