O'Neill v. Northern Colorado Irr. Co.

• Decision Date: 02 March 1914
• Citation: 139 P. 536,56 Colo. 545
• Parties: O'NEILL v. NORTHERN COLORADO IRR. CO. et al.
• Court: Colorado Supreme Court

139 P. 536

56 Colo. 545

O'NEILL v. NORTHERN COLORADO IRR. CO. et al.

Supreme Court of Colorado, En Banc.

March 2, 1914

Error to District Court, Park County; Charles Cavander, Judge.

Action by Dan O'Neill against the Northern Colorado Irrigation Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.

G. K Hartenstein, of Buena Vista, for plaintiff in error.

L. M Goddard, L. F. Twitchell, and Paul M. Clark, all of Denver for defendants in error.

GARRIGUES J.

This action was commenced February 21, 1912. The purpose is to settle the relative priorities between ditches situated in different water districts on the South Platte river. The action is in the nature of a suit to quiet title to a water right, and asks injunctive relief restraining the closing of plaintiff's headgate. The South Platte river in irrigation division No. 1 is divided into five water districts. Water district No. 23 includes the river from its source in the mountains to the junction of the north and south branches. Water district No. 8 lies immediately below, and includes the river from the junction down to the mouth of Cherry creek, at Denver. The pleadings disclose that plaintiff in error, Dan O'Neill, plaintiff below, is the owner of the O'Neill ditch, and priority, taking water from Tarryall creek, a tributary of the South Platte, in water district No. 23; and the Northern Colorado Irrigation Company, defendant below, defendant in error, is the owner of the High Line Canal, and its priority, taking water from the same stream in water district No. 8. A general adjudication decree under the irrigation statutes of 1879 (Laws 1879, p 94) and 1881 (Laws 1881, p. 142), entered December 10, 1883, in the district court in Douglas county, settled the priorities of all the ditches diverting water for irrigation from the South Platte river in water district No. 8. This decree awarded the High Line Canal priority No. 111 for 1,184 cubic feet per second, dated January 18, 1879. Under the same laws a general adjudication decree entered October 18, 1889, in the district court in Park county, settled the priorities of the ditches diverting water for irrigation from the same river in water district No. 23. This decree awarded the O'Neill ditch priority No. 98 for 28.83 cubic feet per second, dated May 10, 1879. Neither of these decrees have been appealed from, changed, modified, or reversed, and are in full force and effect. The official defendants are the state engineer, irrigation division engineer of division No. 1, and the water commissioner of district No. 23. Plaintiff's grievance comes from these executive officers delivering the water of the stream in accordance with the decrees of the districts treated as one. The complaint alleges that during the years 1910 and 1911 these officials, upon the demand and at the instigation of the irrigation company, closed plaintiff's headgate and demanded that it remain closed, and that the water decreed to his ditch flow down the stream past his headgate into district No. 8, to supply the priority decreed the High Line Canal, for its use and benefit. Defendants admit these acts, and rely and justify the action upon the adjudication decree in water district No. 8, in Douglas county, and claim that the irrigation statute of 1881 bars plaintiff's right to bring the action. The replication admits the adjudication decrees, but alleges that plaintiff had no notice of, and was not a party to, the proceeding in district No. 8, in Douglas county; that the decree, to which he was not a party, in another water district did not authorize thorize the officials to close his ditch in water district No. 23, for the benefit of defendant's canal; that the district court of Douglas county, when it entered the adjudication decree, had no jurisdiction over him, his ditch or water rights in district 23; that the relative priorities between the ditches have never been adjudicated; that the officials, in closing his headgate, acted under and pursuant to an act of the General Assembly concerning irrigation division engineers, approved April 4, 1903 (Laws 1903, p. 281), but he alleges that the statute, in so far as it authorizes the closing of his headgate and delivering the water to the High Line Canal, deprives him of his property without due process of law in violation of the Fourteenth amendment to the Constitution of the United States. Demurrers were sustained to the replication, plaintiff elected to stand by the pleadings, declined to plead over, and judgment was entered dismissing the action.

2. The 1879 and 1881 irrigation statutes divide the natural streams of the state into units, called water districts, and provide for obtaining a general adjudication decree in each district settling the priorities of all the ditches in the district, and create the office of water commissioner in each district, and make it his duty to distribute the water to the ditches of the district according to the decreed priorities. The laws of 1881 divided the state into three water divisions, and provided that the water districts of the South Platte river and its tributaries should constitute water division No. 1.

The Laws of 1887, p. 295, created the office of superintendent of irrigation for each water division, and make it his duty to see that the water of the division is distributed according to the priorities, as established by the decrees in the districts, and provide, if any ditch in any water district in any water division is receiving water whose priority postdates a ditch in another district in the division as established by the decrees, that he shall shut down the postdated ditch and deliver the water to the ditch having the senior priority, as shown by the decrees, and in this way enforce the priorities of the ditches on the stream according to the decrees of the whole division, treated as one decree without regard to the water district within which the ditch is located. In 1903 the Legislature changed the name of the officer to irrigation division engineer, but his duty, as far as this case is concerned, remains the same. Section 34, Irrigation Act of 1881 (Laws 1881, p. 159), provides in substance that nothing in the act or in the final adjudication decree shall prevent any person at any time within four years after the rendering of the decree from bringing and maintaining any suit or action, which theretofore was allowed, to determine any priority. Section 35 provides in substance that, after four years from the time of rendering the final decree, all persons shall be forever barred from setting up any claim or priority adverse or contrary to the decree. These are the sections relied upon by defendant as a bar to plaintiff's action. Section 26 provides in substance that any party to the proceeding feeling aggrieved by the adjudication decree may apply within two years from...