Pioneer Irr. Co. v. Board of Com'rs of Yuma County, Colo.

• Decision Date: 09 October 1916
• Docket Number: 6486.
• Citation: 236 F. 790
• Parties: PIONEER IRR. CO. v. BOARD OF COMR'S OF YUMA COUNTY, COLO.
• Court: U.S. District Court — District of Colorado

236 F. 790

PIONEER IRR. CO. v. BOARD OF COMR'S OF YUMA COUNTY, COLO.

No. 6486.

United States District Court, D. Colorado.

October 9, 1916

Park &amp Gibson, of Denver, Colo., for plaintiff.

Jo. A Fowler, of Denver, Colo., for defendants.

LEWIS District Judge.

This is a bill for an injunction against the enforcement of carrying rates for water in the plaintiff's canal or ditch fixed by the Board of County Commissioners. The plaintiff is the owner of the Haigler canal which receives its waters from the North Fork of the Republican River in Yuma County, Colorado. It extends from its headgate on the south bank of that stream to the state line between Colorado and Nebraska a distance of about seven miles, and thence in Nebraska about eight miles more. It was constructed in 1890 as a carrying canal and it has ever since served the purpose of furnishing water to farmers in Colorado and Nebraska for irrigation. Its relative priority to divert the waters from the stream was not fixed by adjudication until 1912 and 1914. In July of the first named year it obtained a decree fixing its priority and adjudging to it the right to divert fifteen cubic feet per second for the irrigation of lands in Colorado, and in the latter year it was adjudged to have the right to divert twenty-nine cubic feet per second, to be measured at the state line for lands in Nebraska. The lands in Colorado which it has heretofore served aggregate about 790 acres, and the bill alleges that none of the owners of said lands are the owners of the water carried in the canal, except the owners of 96 acres, and the bill alleges that none cubic feet per second, all of the other users being annual renters of water.

The plaintiff petitioned the board to fix the carrying rates which it should exact from the users of water from the canal as the state statute provides may be done, and in October 1915, the board, after hearing the parties in interest, fixed the rate at the sum of $1.83 per acre.

The complaint is that the rate is too low and confiscatory, that the board

'in fixing said rate of compensation refused to consider the value of the water owned and carried by the said plaintiff in said ditch for the use of persons renting water annually therefrom, and refused in fixing the said rate to allow any compensation whatever to the plaintiff for or on account of such water to be carried by the plaintiff and furnished to farmers under said ditch upon an annual rental charge. That said rate so fixed by the said county commissioners requires the plaintiff to carry water, which it has appropriated and diverted and has a decree therefor and is the owner thereof, and deliver the same to farmers under said ditch for use without any compensation whatever, thus depriving the plaintiff of its property and compelling it to deliver the said water so owned by it to farmers under said ditch in the State of Colorado who have no property right therein for the purpose of irrigating approximately 695 acres of land; that the water so carried and required by said order to be delivered by the plaintiff to said farmers is of the reasonable value of $34,750; that the plaintiff is by law entitled, when required to furnish such water to farmers who are not owners of the water, to a reasonable return upon the value of said water.'

The answer admits that the plaintiff has acquired the right to divert water from the river and carry the same through the canal for use in the irrigation of crops; admits that the board refused to recognize ownership of the water in the plaintiff or to consider such claimed ownership in the fixing of rates or to allow it anything for the water carried. It alleges that the users of the water are the owners of the right to its use, and that at the hearing the board took into consideration in fixing the rate all of the testimony adduced, such as the original cost, construction and present value of the canal, its headgates, dams, water-boxes, and the evidence as to the cost of maintenance and operating the same, the number of acres irrigated, the production and the benefits therefrom, but rejected the claim and contention of the plaintiff that it had any property right in the water or its use and ignored plaintiff's claim in that respect in fixing the rate.

There is diversity of citizenship. At the final hearing the controversy was submitted on the pleadings, and a written stipulation filed in the cause as follows:

'It is hereby stipulated and agreed by and between the parties hereto for the purpose of this trial, and it is admitted, to-wit:

'The sole question to be determined in this case is whether or not the Board of County Commissioners should have taken into consideration, in fixing the rates to be charged by the plaintiff for the carriage, distribution and delivery of water, the value of such water delivered to the class of consumers hereinafter described.

'Since the construction of the ditch the class of water users to which the rate fixed by the County Commissioners in 1915 applies were those users who have, since the construction of the ditch in 1890, paid annually an annual rate without any other contract with the plaintiff company other than a receipt for the amount of money paid for such carriage, and an agreement to conform to the rules and regulations of the company in distribution, measurement and application of such water, and they have so conformed, none of which such land owners has ever paid the plaintiff company any amount of money for the purchase of a perpetual water right, or any other amount than the annual

...