New Cache La Poudre Irrigating Co. v. Water Supply & Storage Co.

• Citation: 111 P. 610,49 Colo. 1
• Parties: NEW CACHE LA POUDRE IRRIGATING CO. et al. v. WATER SUPPLY & STORAGE CO.
• Decision Date: 04 April 1910
• Court: Colorado Supreme Court

111 P. 610

49 Colo. 1

NEW CACHE LA POUDRE IRRIGATING CO. et al. v. WATER SUPPLY & STORAGE CO.

Supreme Court of Colorado

April 4, 1910

Rehearing Denied Nov. 14, 1910.

Appeal from District Court, Larimer County; James E. Garrigues Judge.

Proceeding by the Water Supply & Storage Company against the New Cache La Poudre Irrigating Company and others. Decree for complainant, and defendants appeal. Affirmed.

H. N. Haynes, F. J. Annis, and Fred W. Stow, for appellants.

L. R Rhodes and L. R. Temple, for appellee.

CAMPBELL J.

This cause was once before this court. Irrigation Company v. Water S. & S. Co., 29 Colo. 469, 68 P. 781. It was begun as a suit in equity against a single defendant, having for its object a decree permitting, as against such defendant, a change of the point of diversion from the headgate of the Pioneer ditch of certain priorities to the use of water for irrigation, which had under the general adjudication decree been awarded thereto, to the headgate of the ditch owned by the plaintiff Storage Company. Upon final hearing in the district court, a decree was rendered permitting the change to be made. The defendant appealed to this court, with the result that the decree was reversed and the cause remanded. The merits of the controversy were not determined, and the reversal was directed because our General Assembly had prescribed a special proceeding for the awarding of such relief which we held to be the exclusive remedy. In remanding the cause, in order to save the time of the courts and lessen the costs of the parties, since the object of the equity suit was the same as that contemplated by the special proceeding under the statute, we gave permission to plaintiff, if it saw fit, by proper amendment to the complaint to convert or change the suit into the statutory proceeding, with the privilege of using on the second hearing the evidence produced at the first, after giving the statutory notice to all persons to be affected by the final order. When the case reached by district court, the proper amendment to the complaint was made, the statutory notice given, new parties affected appeared, and the cause thereafter was conducted as a special statutory proceeding. The court appointed a referee to take evidence and report findings with a form of decree. Several weeks were consumed in taking evidence, and at its conclusion the referee made elaborate findings of fact which in the main, were approved by the court, and upon findings so made a decree was rendered permitting the change to be made as prayed for. The respondents below have appealed from that decree.

The announcement has been repeatedly made by this court that the right to change the point of diversion of a ditch which diverts water from a natural stream in this state for the purposes of irrigation, though a property right, is not an absolute one. It may not be permitted if it works injury to the vested rights of others. Whether or not the right to make the change should be granted depends very largely upon the facts of each particular case. The different cases are usually so dissimilar in their facts that the determination in one case furnishes but very little, if any, aid in the decision of another. When this cause was being conducted as a suit in equity, the judge of the district court, sitting as a trier of facts, found upon a large mass of testimony that the rights of the defendant in that action would not be injuriously affected by the change, and therefore permitted it to be made. The evidence then taken was, under our order, considered at the second hearing, and upon it and additional proof the referee arrived at the same result, and his findings in the main were approved by the trial court when it overruled the exceptions of the respondents thereto. We therefore have a case where two different judges and a referee have reached the same conclusion, that the change asked for should be granted because the vested rights of others were not thereby impaired. Such findings should not be lightly set aside. It would serve no useful purpose to comment upon or review the great volume of evidence which has been brought up in the transcript. To do so would not be helpful in future cases, and we do not deem it necessary to prolong the opinion or to consume the time that would be necessary therefor. An attentive consideration of the evidence satisfies us that every material finding of fact is sustained by the proof, and we therefore shall not disturb the findings.

Much stress is laid by learned counsel for appellant on the fact that the referee in weighing the evidence and making his findings disregarded the true rule in a proceeding of this kind respecting the burden of proof. They say that this court in Ft. Lyon Canal Co. v. Chew, 33 Colo. 392, 81 P. 37, which involved a temporary exchange or loan of water rights, said that the burden of proof rests upon the one who asserts the right to...