Oak Creek Power Co. v. Colorado River Water Conservation Dist., 25693

• Decision Date: 10 September 1973
• Docket Number: No. 25693,25693
• Citation: 182 Colo. 389,514 P.2d 323
• Parties: OAK CREEK POWER COMPANY, Protestant-Appellant, v. COLORADO RIVER WATER CONSERVATION DISTRICT, Claimant-Appellee.
• Court: Colorado Supreme Court

Page 323

514 P.2d 323

182 Colo. 389

OAK CREEK POWER COMPANY, Protestant-Appellant, v. COLORADO RIVER WATER CONSERVATION DISTRICT, Claimant-Appellee.

No. 25693.

Supreme Court of Colorado, En Banc.

Sept. 10, 1973.

Charles F. Brannan, Williams, Erickson & Wallace, P.C., Wayne D. Williams, Denver, for protestant-appellant.

Delaney & Balcomb, Kenneth Balcomb, Glenwood Springs, for claimant-appellee.

PRINGLE, Chief Justice.

This case involves the appeal by Oak Creek Power Company as to the propriety of priority date granted to the Colorado River Water Conservation District for certain features of the Hayden Mesa Water Project located in Water District 57. The Oak Creek Power Company will hereinafter be referred to as the 'Company' or appellant and the Colorado River Water Conservation District will be referred to as the 'District' or appellee.

In 1968, pursuant to procedures set forth in the Water Adjudication Act of 1943, C.R.S.1963, 148--9--1 et seq. (which has subsequently been repealed, Colo.Sess. Laws 1969, ch. 373, § 20, and replaced by the Water Right Determination and Administration Act of 1969, Colo.Sess. Laws 1969, ch. 373, § 1 et seq., 1969 Perm.Supp., C.R.S.1963, 148--21--1 et seq.), the District filed a statement of claim for water rights for Dunkley Reservoir, Hayden Bench Canal and Twenty Mile Park Canal in Water District 57. The District asserted a priority date of May 24, 1954 for the reservoir and canals, all of which were features of the District's Hayden Mesa Project.

The Company subsequently filed a statement of claim to various waters and tributaries of the Yampa River, asserting a priority date of June 25, 1964. The Company also filed a protest against the claim of the District, contending that certain waters claimed by the District were also claimed by the Company and that the District was not entitled to the priority date asserted in its claim.

A hearing on the above claims was conducted in the district court in Steamboat Springs on May 28, 1968. The court received in evidence various exhibits at the hearing, including the District's Exhibit A, a map and statement of the District's proposed Hayden Mesa Project. At the close of the evidence, the trial court appointed a referee to prepare draft findings and a draft decree. On April 21, 1972, the court entered an order setting a hearing upon the referee's report, draft findings and draft decree for May 23, 1972. At the May 23 hearing, the referee's recommendation was modified to reflect that the Hayden Mesa Project be awarded a priority date of July 30, 1963, rather than the May 24, 1954 date first proposed by the District.

On May 30, 1972, the trial court entered its findings of fact, conclusions of law and decree. The court granted the referee's motion to amend his findings and granted the District conditional decrees for its Hayden Mesa Project with a priority date of July 30, 1963.

The Company appealed the trial court's findings, contending that the evidence adduced by the trial court was insufficient to sustain the granting of the July 30, 1963, priority date to the District. The District filed a notice of cross-appeal asserting that the court should have awarded a priority date of April 11, 1956, instead of July 30, 1963. In its brief to this Court, the District elected not to contest the finding of the trial court that April 11, 1956 was not an appropriate date for the features of the Hayden Mesa Project. Therefore, the only issue which remains to be determined on the appeal is whether the evidence is sufficient to sustain the trial court's conditional decrees granting the District a July 30, 1963 priority date. We hold that the evidence adduced at trial was sufficient to support the date of the priority decrees established below, and therefore affirm the judgment of the trial court.

Appellant's contention that the evidence adduced at trial was insufficient to sustain the 1963 appropriation date is predicated on the issue of the legal effect of Exhibit A, the map and statement tendered by the District and accepted into evidence. A portion of Exhibit A contains the following statements: 'Work on the Hayden Mesa Project was undertaken by the Colorado River Conservation District on the 30th day of July, 1963, by survey of the Hayden Bench Canal of said project.' This statement appeared above the signature of the District's president, A. Allen Brown, and was verified by a Mr. Philip Smith as engineer of the District. At the time of the hearing, Mr. Smith was deceased. This statement appears to be the sole evidence upon which the trial court determined that July 30, 1963, was the appropriate date for the conditional decree. Other evidence, going to expenditures incurred in connection with the Hayden Mesa Project, contained no reference to dates.

The District tendered Exhibit A pursuant to C.R.S.1963, 35--4--13; the exhibit was admitted into evidence without objection by the Company. Section 35--4--13 provides that copies of all papers filed in the office of the recorder of deeds and certified by him under the seal of office 'shall be prima facie evidence in all cases . . ..' The map and statement here involved (Exhibit A) had been filed with the Clerk and Recorder of Routt County in 1964, and the particular copy offered in evidence as Exhibit A was...