Rio Grande Reservoir & Ditch Co. v. Wagon Wheel Gap Improvement Co.

• Decision Date: 02 March 1920
• Docket Number: 9231.
• Citation: 191 P. 129,68 Colo. 437
• Parties: RIO GRANDE RESERVOIR & DITCH CO. v. WAGON WHEEL GAP IMPROVEMENT CO. et al.
• Court: Colorado Supreme Court

191 P. 129

68 Colo. 437

RIO GRANDE RESERVOIR & DITCH CO. v. WAGON WHEEL GAP IMPROVEMENT CO. et al.

No. 9231.

Supreme Court of Colorado, En Banc.

March 2, 1920

Dissenting Opinion April 5, 1920.

On Petition for Rehearing July 6, 1920.

Error to District Court, Dostilla County; A. Watson McHendrie Judge.

Adjudication proceedings by the Rio Grande Reservoir & Ditch Company against the Wagon Wheel Gap Improvement Company and others. From a judgment adjudicating certain priorities, plaintiff brings error.

Affirmed in part and reversed in part.

Garrigues C.J., and Burke and Denison, JJ., dissenting in part.

Jesse Stephenson, of Monte Vista, and Goudy Twitchell & Burkhardt and Frank B. Goudy, all of Denver, for plaintiff in error.

J. T Adams, of Alamosa, for defendant in error Wagon Wheel Gap Improvement Co.

Ezra T. Elliott, of Del Norte, for defendant in error Wilson and others.

Charles M. Corlett and George M. Corlett, both of Monte Vista, for defendant in error San Luis Valley Irr. Dist.

James W. McCreery and Donald C. McCreery, both of Greeley, Stoten R. Stephenson, of Ft. Morgan, and Harry N. Haynes, of Greeley, amici curiae.

BAILEY J.

Plaintiff in error. The Rio Grande Reservoir and Ditch Company, was awarded certain priorities for 43,565.06 acre feet of water for storage purposes in the Santa Maria reservoir in an adjudication proceedings in Costilla County. At the same time other awards were made to the several defendants in error, all of prior date to that of plaintiff in error. In the same adjudication plaintiff in error was denied a decree for an original appropriation for direct irrigation, for the Santa Maria Seepage Ditch, and brings the record here for review on both propositions.

The matters for determination are, whether upon the evidence the date of the decree awarded to the Santa Maria Reservoir should have been earlier, and whether the capture of the seepage water by the Santa Maria Ditch can be regarded as such an original appropriation as to entitle it to a decree antedating all other appropriations for water for direct irrigation on the stream to which such seepage is plainly tributary.

Upon the first question it appears that the Santa Maria reservoir was originally a small lake, the basin surrounding which was surveyed by one Thorne in August, 1896, for the purpose of locating a reservoir site. The Rio Grande Reservoir and Ditch Company was then organized and a map and statement prepared for it by Thorne was filed in accordance with the federal act of 1891, for the purpose of obtaining a right of way over public lands.

By this map and statement the reservoir company claimed a reservoir capacity of 15,971.2 acre feet, which claim was lodged with the State Engineer on October 8, 1896. On December 5, 1896, the company was notified by the Secretary of the Interior that approval of the filings would be held in abeyance because of international complications with Mexico in relation to the diversion of water from the Rio Grande river in New Mexico and Colorado. At this date the company had expended over $4,000.00 in preliminary preparations and construction. It continued to expend money on the project, and to do everything that could reasonably be done in the absence of a right of way across the public domain, to protect and perfect its claim.

In 1901 the company determined to increase the capacity of its reservoir, and until November, 1907, when its application for the right of way was approved, it constructed ditches, built a dam, made numerous surveys for its inlet ditch, and in other ways expended upon the project, while the approval of its application for the right of way was pending, approximately $12,000.00.

An amended map and statement was filed in the office of the State Engineer, in August, 1906. Work of some kind was done upon the project in 1907, 1908 and 1909, and in October, 1911, water was turned into the reservoir, which was used in 1911 upon lands to a total amount of 4,800 acre feet. In 1913 the amount so stored and used was 9,600 acre feet. In November, 1913, the reservoir was completed to its full capacity.

It is claimed that the court in its decree failed to give this company the benefit of one doctrine of relation, although that doctrine was applied in behalf of all other claimants. It is urged that upon the evidence the company's priority should bear date as of August 7, 1896, the time of the original survey by Thorne. The record substantially supports the contention of the company that the decrees awarded defendants in error, of date superior to its decree, are based upon less evidence of work done, money expended and diligence employed than that upon which it relies. It is urged that the provisions of section 3284, R. S. 1908, requiring the consideration of the diligence with which the work was in each case prosecuted, the nature of the work as to difficulties encountered, and all such like facts tending to show compliance with the law, in securing the priority claimed was disregarded as to this complainant but recognized as to all the others, and that the court utterly ignored the natural difficulties connected with the project, and the delay occasioned by the federal authorities in granting the right of way, when it determined that due diligence had not been exercised by the company in putting the water to a beneficial use.

It conclusively appears that work was done or money expended by plaintiff in error on this property in every year from 1896 until 1909. During all but two years of this period the project was held in abeyance by federal order. The other reservoirs to which senior priorities were awarded were found to have exercised due diligence up to the time of their respective approval by the Department of the Interior, although their claim of diligence is supported by testimony identical with that offered by plaintiff in error in support of its claim. The trial court, however, applied the doctrine of relation to them, and refused it as to plaintiff in error, giving it a priority as of July 10, 1910, instead of August 7, 1896.

From the brief of defendant in error it appears that the findings complained of were based on a certain letter written by the manager of several of the reservoir companies, but not of the one which owns the Santa Maria reservoir. The letter purports to show that the companies for which the writer was manager had abandoned the idea of constructing the reservoir, and from the testimony of the writer and of others it appears to have been written to mislead rival companies as to the true intentions of plaintiff in error, with a view to obtaining land needed for the Santa Maria reservoir at better prices. It can not, however, in any way bind the plaintiff in error, because it at all times diligently continued work on the project, and on the reservoir site referred to in the letter. Under the law an expressed intention to abandon does not cause forfeiture of rights unless possession is relinquished and acts of ownership cease. The letter, therefore, is not sufficient to justify the conclusion reached by the trial court that plaintiff in error had once abandoned the property and returned to it again in 1910.

As to the denial of an original appropriation for direct irrigation for the Santa Maria seepage ditch it appears that after the Santa Maria reservoir was filled seepage water therefrom appeared at the base of one of the adjacent hills. The ditch in question was then constructed, such seepage water captured and measured over a weir. It was sought to appropriate this seepage water and conduct it by ditch to the gates of a canal belonging to the company far down the stream and there apply it to lands under that system, for direct irrigation purposes. The right is based upon the theory that the waters having been impounded in the reservoir during the winter months when direct irrigation is impossible, have not been and could not have been appropriated for direct irrigation. Ironstone Ditch Co. v. Aschenfelter, 57 Colo. 31, 140 P. 177, is relied upon as authority to support this contention.

The question involved, as we view it, has been definitely settled against this contention in Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107, where this court makes the following announcement under conditions similar to those involved in this case:

'We take judicial notice of the fact that practically every decree on the South Platte River, except possibly only the very early ones, is dependent for its supply, and for years and years has been, upon return, waste and seepage waters. This is the very thing which makes an enlarged use of the waters of our streams for irrigation possible. To now permit one who has never had or claimed a right upon or from the river to come in, capture, divert and appropriate waters naturally tributary thereto, which are in fact nothing more or less than return and waste waters, and upon which old decreed priorities have long depended for their supply, would be in effect to reverse the ancient doctrine, First in time first in right,' and to substitute in its stead, fortunately, as yet, an unrecognized one, 'Last in time first in right.' * * *

'Every appropriation of water on this stream, claimed and decreed for irrigation purposes, has been so claimed and decreed upon the theory that all waste and seepage water arising from the irrigation of land, or from the construction and maintenance of reservoirs using water from the river, and naturally returning to it, is available to supply such appropriations and decrees. To now permit independent appropriation and diversion of these waters in a way to adversely affect prior appropriations and decrees is in direct conflict alike with the spirit of the law under

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