Northern Colorado Irr. Co. v. City and County of Denver

• Decision Date: 20 May 1929
• Docket Number: 10623.
• Citation: 86 Colo. 54,278 P. 592
• Parties: NORTHERN COLORADO IRR. CO. v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

278 P. 592

86 Colo. 54

NORTHERN COLORADO IRR. CO. v. CITY AND COUNTY OF DENVER.

No. 10623.

Supreme Court of Colorado, En Banc.

May 20, 1929

Error to District Court, Douglas County; John W. Sheafor, Judge.

Proceedings to adjudicate priorities of rights to the use of water for beneficial purposes in a water district between the Northern Colorado Irrigation Company and the City and County of Denver. Judgment for the latter, and the former brings error.

Reversed.

C. H Pierce, of Denver, for plaintiff in error and petitioners Reinhard and others.

Henry E. May, Thos. H. Gibson, Milnor E. Gleaves, Lindsey &amp Larwill, E. C. Burck, Cass E. Herrington, and Dines, Dines &amp Holme, all of Denver, for defendant in error.

Smith &amp Brock, John P. Akolt, Wright & Ireland, and Ponsford, Pender & Larwill, all of Denver, and John M. Boyle, of Fairplay, amici curiae.

ADAMS J.

On March 24, 1923, this cause was docketed on writ of error. It is for the purpose of reviewing a statutory adjudication of priorities of rights to the use of water for beneficial purposes in water district No. 8. Abstract of record and assignments were filed, but the cause was delayed, not through inattention of the court, but by mutual stipulations of the parties. On May 23, 1924, before any briefs were filed, plaintiff in error moved to dismiss, which was granted. By the parties' voluntary action, it was out of our hands until July 28, 1927, when a petition was filed by Frank J. Reinhard and others interested with him in certain phases of the Northern Company's water contracts. Their petition was to reinstate the cause on the docket of this court. Hearing on this petition was again delayed by numerous stipulations and mutual requests; briefs of parties and amici curiae were filed; and finally, on May 21, 1928, Reinhard et al., by their counsel, applied for an oral argument, which was granted. On June 8, 1928, the motion to reinstate was argued and granted. Petitioners were allowed to prosecute the writ in the name of the Northern Company. The cause has preserved its status as a review of a water adjudication; the water contracts were involved only incidentally, as a basis for reopening the cause in this court, which was their sole purpose here, and having served that object, they are no longer involved in this matter.

The cause now stands as originally docketed. Notwithstanding the fact that other counsel, not representatives of the litigants here, have been allowed to file briefs, the case in this court in primarily between the Northern Colorado Irrigation Company and the city and county of Denver. The present representatives of the Northern Company take the case with all rights and benefits, and all attendant burdens, that befell when the cause was docketed in the year 1923. At that time counsel for the Northern Company, plaintiff in error, filed a petition for alignment of parties under our Rule 25, which reads as follows:

'Any party suing out a writ of error to review the whole or any part of a decree entered in any statutory proceedings adjudicating water priorities or the change of points of diversion thereof, shall file in this court a petition, as plaintiff in error, showing the priority and ditch rights claimed by such party, and making the assignments of error a part of the petition by reference only, and naming the ditches, reservoirs, pipe lines and other works, and the owners thereof who may be adversely affected by such proceedings in this court as defendants in error, and such alignment of parties in this court shall be according to such petition, and writ of error issued accordingly.'

The company and the city were aligned as parties under the above rule.

After the cause was reinstated, more extensions of time for the filings of briefs were frequently requested, sometimes by one side and sometimes by the other, on grounds of engagements of counsel in other matters--absence from city, etc. They were granted. On December 21, 1928, the city filed an application for permission to take further testimony, particularly as to Lake Archer Canal, on a claim filed but not adjudicated. The failure to adjudicate such rights or claim was one of the grounds of error assigned in the year 1923 by the ...