Platte Valley Irr. Co. v. Central Trust Co.

• Decision Date: 05 October 1903
• Citation: 32 Colo. 102,75 P. 391
• Parties: PLATTE VALLEY IRR. CO. v. CENTRAL TRUST CO. et al.
• Court: Colorado Supreme Court

75 P. 391

32 Colo. 102

PLATTE VALLEY IRR. CO. v. CENTRAL TRUST CO. et al.

Supreme Court of Colorado

October 5, 1903

Appeal from District Court, Arapahoe County; Booth M. Malone, Judge.

Action by the Platte Valley Irrigation Company against the Central Trust Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Jas. W. McCreery, for appellant.

Chas D. Todd, R. D. Thompson, Talbot, Denison &amp Wadley, and S. A. Osborn, for appellees.

GABBERT J.

By adjudication proceedings had in 1883, the Evans Ditch, No. 2 and the Hewes & Cook Ditch, were each awarded priorities to water from the South Platte river for the purpose of irrigation. The priorities awarded the Hewes & Cook Ditch are in advance of those awarded the Evans Ditch. The appellant has succeeded to the ownership of the latter ditch and its priorities. Appellees, except the officials named, are the tenants in common of the Hewes & Cook Ditch and its priorities. In April, 1900, appellant brought an action against the appellees to restrain them from the alleged unlawful diversion and use of water through the Hewes & Cook Ditch. The complaint, according to the contention of plaintiff, was framed upon the theory (1) that there had been a partial abandonment of the priorities awarded the Hewes & Cook Ditch; (2) an enlarged use of such priorities; and (3) that the change of place of use made, or proposed to be made, by the Western Ditch & Land Company, of the undivided one-half of the appropriations awarded the Hewes & Cook Ditch, which that company now owns, injuriously affected the rights of the plaintiff. The issues on these questions were determined in favor of the appellees, and plaintiff brings the case here for review on appeal.

We shall first consider the question of the alleged partial abandonment of the priorities awarded the Hewes & Cook Ditch. It is contended by counsel for plaintiff that the evidence established such abandonment, and that the defendants who now claim the right to the use of the water represented by the priorities awarded that ditch should be limited in their diversion to that portion which has not been abandoned. The volume of the priorities awarded the Hewes & Cook Ditch in the adjudication proceedings must be treated in this action as res adjudicata, and none of the facts upon which that award was predicated can be inquired into for the purpose of determining the question under consideration. The Boulder & Weld Co. D. Co. v. The Lower Boulder D. Co., 22 Colo. 115, 43 P. 540; Water Supply & Storage Co. v. Larimer & Weld I. Co., 24 Colo. 322, 51 P. 496, 46 L.R.A. 322. So that the question of abandonment must be limited to those acts on the part of defendants who now own the Hewes & Cook Ditch priorities, and their grantors, which occurred subsequent to the decree entered in the adjudication proceedings.

On the part of the plaintiff, it is contended that the abandonment in question took place between the date of the conclusion of the adjudication proceedings and the year 1894, or during a period covering about 11 years. This contention is based principally upon nonuser during this time, or that for this period there had been but a small part of the volume represented by the priorities of the Hewes & Cook Ditch beneficially applied to the irrigation of lands. For the purpose of establishing this claim, testimony was introduced by plaintiff touching the capacity of the ditch during that period, the acreage irrigated by water diverted through that channel, and the quantity of water necessary for that purpose; tending to prove that but a small portion of the priorities awarded had actually been used, or that during this period there had been an excessive use of such priorities. Defendants also introduced testimony on this subject which tended to prove that, between the years named, the capacity of the ditch was such, and the acreage under it irrigated was sufficient, taking into consideration its character, that the full volume of the priorities awarded their ditch was annually diverted and appled. On testimony of this character, conflicting as it is, we cannot disturb the finding or conclusion of the trial court that there had been no abandonment on the part of the defendants or their grantors, and it can be of no advantage to more than briefly review some of its most salient features.

Ditches the capacity of which was measured by witnesses on behalf of plaintiff, it is claimed by those testifying for defendants, were but laterals of the Hewes & Cook Ditch proper. ...