Priorities of Water Rights in Water Dist. No. 19, Matter of, 27492

• Decision Date: 30 January 1978
• Docket Number: No. 27492,27492
• Citation: 574 P.2d 83,194 Colo. 510
• Parties: In the Matter of PRIORITIES OF WATER RIGHTS IN WATER DISTRICT NO. 19, State of Colorado, upon Application to change place of storage of the Model Reservoir. PURGATOIRE RIVER WATER CONSERVANCY DISTRICT and the Model Land and Irrigation Company, Applicants-Appellees, v. HIGHLAND IRRIGATION COMPANY, Appellant.
• Court: Colorado Supreme Court

Page 83

574 P.2d 83

194 Colo. 510

In the Matter of PRIORITIES OF WATER RIGHTS IN WATER DISTRICT NO. 19, State of Colorado, upon Application to change place of storage of the Model Reservoir PURGATOIRE RIVER WATER CONSERVANCY DISTRICT and the Model Land and Irrigation Company, Applicants-Appellees, v. HIGHLAND IRRIGATION COMPANY, Appellant.

No. 27492.

Supreme Court of Colorado, En Banc.

Jan. 30, 1978.

Davis, Graham & Stubbs, Clyde O. Martz, Douglas V. Johnson, Stanley L. Grazis, Denver, for applicant-appellee Purgatoire River Water Conservancy Dist.

Moses, Wittemyer, Harrison & Woodruff, Raphael J. Moses, Boulder, for applicant-appellee The Model Land and Irrigation Co.

Vranesh & Musick, Wayne B. Schroeder, Boulder, Wade & Blackburn, Las Animas, for appellant Highland Irrigation Co.

GROVES, Justice.

The district court denied the petition of the appellant, Highland Irrigation Company (here called "Highland"), to enter an appearance in order to request the modification or vacation of a decree changing the place of storage of water. This appeal concerns the correctness of that denial.

The water involved is that of the Model Reservoir of The Model Land and Irrigation Company. This reservoir was adjudicated in 1925 to have an annual storage right of 20,000 acre feet of water with date of appropriation of January 22, 1908. It is on the Purgatoire River a few miles downstream from the City of Trinidad.

The Purgatoire River has its headwaters in Las Animas County, Colorado, near the New Mexico border. The river flows in a northeasterly direction through Las Animas, Otero and Bent Counties, entering the Arkansas River a little over 100 miles (as the crow flies) from its headwaters. The confluence of the Purgatoire River with the Arkansas River is a short distance west of the west part of John Martin Reservoir. Highland is the appropriator of water from the Purgatoire River in Bent County not too many miles upstream from the river's confluence with the Arkansas River, and far downstream from Trinidad.

In 1904, 1942 and 1955 there were disastrous floods of the Purgatoire River causing very heavy damage to property in Trinidad. For many years, and even prior to the 1942 flood, there was considerable discussion concerning a flood control project which might protect Trinidad and other areas from future flood damage. Considerable research and planning were conducted by the Colorado Water Conservancy District, the United States Corps of Army Engineers and the United States Bureau of Reclamation. These studies resulted in the plan of the so-called Trinidad Project. This embraced the Trinidad Reservoir, to be created by a dam whose axis would be 7591 feet in length, such dam and reservoir to be upstream from Trinidad.

In 1958, as a part of the Omnibus Rivers and Harbors Bill, the Trinidad Project was authorized by the Congress of the United States. This authorization provided, as a condition thereof, the transfer of the 20,000 acre-feet storage right of the Model Reservoir to the Trinidad Reservoir.

The "horse in front of the cart" in this situation was that there must be a decree obtained in advance of construction of the Trinidad Project authorizing such transfer of storage water. The statutes then applicable to transfer proceedings of this kind were to be found in the Adjudication Act of 1943, C.R.S.1963, 148-9-22 et seq., which statutory provisions were in effect from 1943 until the adoption of the Water Right Determination and Administration Act of 1969. Tit. 37, Art. 92, C.R.S.1973.

The Adjudication Act of 1943 provided with respect to transfer proceedings that the petition initiating the same should contain, among other things, the following: the location of the storage water as decreed, with the date and amount of priorities thereof; the new location; and a "list of all ditches and other structures taking water from the same source, and all reservoirs and other structures located on the same source, between . . . the decreed and the new places of storage, with the names and addresses of the owners or claimants thereof . . . ." The statute required notice to be given in the proceedings to intervening owners and claimants taking water from the stream between the old location and the new location, and that notice be published for four successive weeks in a newspaper in each county into which the particular water district extended.

Accordingly, on January 17, 1962 The Model Land and Irrigation Company and The Purgatoire River Water Conservancy District filed in the District Court of Las Animas County their petition for change of place of storage of the Model Reservoir water, which petition complied with the provisions of the statute above mentioned. Notice was then given and published as provided by that statute.

A number of protestants appeared and indicated their objections or concerns. The petitioners and the protestants negotiated their differences and concerns for a period of over three years. The protestants were The Fort Lyon Canal Company, The Colorado Fuel & Iron Corporation, The Amity Mutual Irrigation Company, The Catlin Canal Company, The Highline Canal Company, The Arkansas Ditch Association and the Southeastern Colorado Water Conservancy District. The petitioners and the protestants reached mutually agreeable stipulations and a hearing was set in the proceedings for, and was held on, April 15, 1965. By decree entered on that day it was ordered that the place of storage of the 20,000 acre-feet of water adjudicated to the Model Reservoir might be changed to the Trinidad Reservoir.

In the decree the court recited that the United States Congress had required as a condition precedent to the construction of the Trinidad Project that there be the transfer to the Trinidad Reservoir of the Model Reservoir storage right. The decree contained this provision:

"Because the entry of this decree is required prior to initiation of the construction of the Trinidad Dam and Reservoir Project, it may be several years after the entry of this Decree before water can physically be stored in the Trinidad Reservoir under the transferred Model Reservoir Right, therefore this Decree shall not become operative until after this Court shall have found that said dam shall have been finally constructed and ready for operation pursuant to motion by the Petitioners duly served on Protestants and hearing had thereon. Prior to such finding, the Model Reservoir Right may be exercised as if this Decree had not been entered."

The decree further provided:

"(T)he Petitioners' storage of water in the Trinidad Reservoir...