Metropolitan Suburban Water Users Ass'n v. Colorado River Water Conservation Dist., 18855

• Decision Date: 02 October 1961
• Docket Number: No. 18855,18855
• Parties: METROPOLITAN SUBURBAN WATER USERS ASSOCIATION, a Colorado corporation, the City of Colorado Springs, Colorado, and the City of Aurora, Colorado, Plaintiffs in Error, v. COLORADO RIVER WATER CONSERVATION DISTRICT, The Board of Water Commissioners of Pueblo, Colorado, Successor to the Trustees of the Pueblo Water Works, the City and County of Denver, acting by and through its Board of Water Commissioners, and Paul M. Rice, Defendants in Error.
• Court: Colorado Supreme Court

Page 273

365 P.2d 273

148 Colo. 173

METROPOLITAN SUBURBAN WATER USERS ASSOCIATION, a Colorado

corporation, the City of Colorado Springs, Colorado, and the City of Aurora, Colorado, Plaintiffs in Error, v. COLORADO RIVER WATER CONSERVATION DISTRICT, The Board of

Water Commissioners of Pueblo, Colorado, Successor to the

Trustees of the Pueblo Water Works, the City and County of

Denver, acting by and through its Board of Water

Commissioners, and Paul M. Rice, Defendants in Error.

No. 18855.

Supreme Court of Colorado, En Banc.

Oct. 2, 1961.

As Modified on Denial of Rehearings Oct. 23, 1961.

Karl C. Brauns, Denver, Leslie A. Gifford, Aurora, F. T. Henry, Colorado Springs, Grant, Shafroth, Toll, Chilson, & McHendrie, Denver, for plaintiffs in error.

Barnard & Barnard, Granby, for defendant in error, The Colorado River Water Conservation Dist.

Preston & Altman, Pueblo, for defendant in error, City of Pueblo, Colorado.

Glenn G. Saunders, Jean F. Ross, John P. Akolt, Robert A. Dick, John M. Dickson, Denver, for defendant in error, City and County of Denver.

John J. Atkinson, Denver, Charles E. Leierer, Eagle, for defendant in error, Paul M. Rice.

HALL, Chief Justice.

In this opinion well will refer to the parties as follows: The Metropolitan Suburban Water Users Association as the Association; the City of Colorado Springs, Colorado, as Colorado Springs; the City of Aurora, Colorado, as Aurora; the Colorado River Water Conservation District as the District; the Board of Water Commissioners of Pueblo, Colorado, successor to the Trustees of the Pueblo Water Works, as Pueblo; the City and County of Denver, acting by and through its Board of Water Commissioners, as Denver, and to Paul M. Rice as Rice.

On May 29, 1956, the Association, Colorado Springs and Aurora filed in the District Court of Eagle County their petition in this supplemental general water adjudication proceeding in Water District No. 37 of the state of Colorado, setting forth that they are the owners and claimants of unadjudicated water rights in said District. They pray that the court proceed to determine and adjudicate the rights of all parties to the use of water in said district.

Proper notice was given to all parties in interest. None of the holders of adjudicated rights appeared.

On September 15, 1956, the Association filed its statement of claims in its own behalf and in behalf of Colorado Springs and Aurora:

'and such other entities and persons as may use the waters diverted by virtue of the water rights to which claim is hereby made.'

In its claim the Association asserts appropriative rights to waters to be diverted from specified tributaries of the Eagle River, which river drains a portion of Colorado lying west of the Continental Divide, to be diverted, transported, stored and delivered into the Arkansas River Basin, which drains a portion of Colorado lying east of the Continental Divide. Diversion, storage and delivery are to be accomplished by and through the following facilities:

A. Homestake Conduit;

B. East Fork Conduit;

C. Homestake Tunnel;

D. Homestake Reservoir, also known as Elliott Weers Reservoir;

E. Eagle-Arkansas Ditch.

The claim further states that after reaching the Arkansas River Basin a portion of the total waters diverted is to be transported from the Arkansas River Basin (probably over Trout Creek Pass) into the South Platte River Basin, thus making waters so diverted, stored and transported available for use and consumption in Colorado Springs and other areas in the Arkansas River Basin; and in Aurora, and other areas in the South Platte River Basin in the vicinity of Denver. It is proposed that the water will be used for any and all beneficial uses to which water may be applied.

The Association seeks a decree for diversion from twelve named tributaries of the Eagle River of a total of 1840 second feet, diversion to be made by the Homestake Conduit, which conduit has a total length of 23.40 miles and has a maximum carrying capacity of 1,530 second feet at its lower end, of which amount proposed to be diverted only 750 feet (the capacity of the Homestake Tunnel) will at any one time be transported from the various points of diversion to the Arkansas River Basin, the excess of 750 feet diverted at any one time by the Homestake Conduit to be stored in the Homestake Reservoir. Claim is also made for 260 second feet for the East Fork Conduit, said water to be diverted from the East Fork of Homestake Creek and transported into the Homestake Reservoir, there to be stored or from there to be transported through the Homestake Tunnel. Claim is also made for 300 second feet for the Homestake Tunnel, the water to be diverted from the Middle Fork of Homestake Creek and by means of said tunnel transported to the Arkansas River Basin; claim is also made for 10 second feet of water seeping and percolating into the Homestake Tunnel through its entire length (about 5 1/2 miles). Claim is also made for 530 second feet for the Eagle-Arkansas Ditch, said water to be diverted from seven named tributaries of the Eagle River, thence to be transported through the Tennesses Pass Tunnel and then to join the waters emerging from the Homestake Tunnel in the Akansas River Basin. Claim is also made for appropriations of water for storage in Homestake Reservoir with its dam across Homestake Creek at all times to its full capacity of 126,843.68 acre feet. The sources of supply for such storage being waters diverted by the Homestake Conduit and East Fork Conduit, together with 1,500 second feet, the maximum flow of Homestake Creek at said dam site.

The petition alleges that commencement of physical construction of the facilities which initiated their appropriation for each facility was September 22, 1952, and sets forth in detail the anticipated capacities of the various diversions, storage and delivery facilities, and, as further evidence of having initiated appropriations of the waters described therein and for which claim and adjudication is sought, alleges numerous filings of original maps, enlargements thereof, and other data in the office of the state engineer, during the period September 8, 1953 to March 6, 1956. The Association asks for a conditional decree fixing the amounts of water it is entitled to divert and store and the dates thereof.

On November 14, 1956, the District filed its statement of claim for the so-called Red Cliff Project, consisting of a system of reservoirs, ditches, power conduits and other facilities designed to divert, impound and deliver for beneficial use waters of the Eagle River, and three tributaries thereof, viz: Homestake Creek, Petersen Creek and Fall Creek.

It is alleged that the Red Cliff Project consists of:

(1) Iron Mountain Reservoir, an onstream structure located on Homestake Creek (one-third mile upstream from its confluence with the Eagle River and some ten miles down stream from the Association's projected Homestake Reservoir) to be used to impound the waters thereof as well as waters diverted from the Eagle River through the Pando Feeder Canal;

(2) Pando Feeder Canal, designed to divert water from the Eagle River, to then be conveyed into an unnamed creek tributary to Homestake Creek and from there into the Iron Mountain Reservoir;

(3) Gilman Power Conduit designed to divert and collect waters from:

(a) Iron Mountain Reservoir;

(b) Petersen Creek, a tributary of the Eagle River, and

(c) Fall Creek, another tributary of the Eagle River.

Said waters, collected in the conduit, to be used to generate power at the Gilman Power Plant located on the Eagle River, about four miles downstream from the Iron Mountain Reservoir, and after passing through the power unit to tail into the Eagle River. As a part of the overall project it is contemplated that the tailed water from the Gilman Power Plant be diverted from the Colorado River, some ninety miles down stream, for irrigation of lands of the Bluestone Unit of the Cliffs-Divide Project.

The District seeks to be awarded priorities for diversion, storage and beneficial use of water in the following amounts:

(1) for storage in Iron Mountain Reservoir 68,042.72 acre feet;

(2) 500 cubic feet of water per second of time to be diverted by the Pando Feeder Canal;

(3) 250 cubic feet of water per second of time to be diverted from the Iron Mountain Reservoir through the Gilman Power Conduit;

(4) 100 cubic feet of water per second of time to be diverted through the Petersen Creek Feeder Conduit, and

(5) 250 cubic feet of water per second of time to be diverted through the Fall Creek Feeder Conduit.

Work on said project was commenced by survey on August 10, 1956.

A map and statement of the project was filed in the office of the state engineer on October 5, 1956. The District claims the aforesaid appropriations were initiated on August 10, 1956.

On January 28, 1957, Denver filed herein its statement of claim under the title 'Roberts Tunnel Collection System,' the portion thereof located in Water District No. 37 consisting of a series of conduits and tunnels extending from Red Sandstone Creek southward across eighteen intervening creeks and streams tributary to the Eagle River. From these sources, at an elevation of about 9,284 feet, Denver proposes to divert 1195 cubic feet of water per second of time, the same to be transported from the Eagle River watershed by means of the Vail Pass Tunnel and there discharged into Ten Mile Creek, a tributary of the Blue River, the same to flow through and along Ten Mile Creek to the Dillon Dam, located on the Blue River, to be there stored or permitted to flow from thence under the Continental Divide by means of the Harold D. Roberts Tunnel into the North Fork of the South Platte River, thereafter said waters to be stored in or transported through the Two Forks Reservoir, proposed to be constructed on the South Platte River downstream from its confluence with the North Fork of said river, or stored...