Taussig v. Moffat Tunnel Water & Development Co.

• Decision Date: 17 June 1940
• Docket Number: 14474.
• Citation: 106 Colo. 384,106 P.2d 363
• Parties: TAUSSIG et al. v. MOFFAT TUNNEL WATER & DEVELOPMENT CO.
• Court: Colorado Supreme Court

106 P.2d 363

106 Colo. 384

TAUSSIG et al. v. MOFFAT TUNNEL WATER & DEVELOPMENT CO.

No. 14474.

Supreme Court of Colorado, En Banc.

June 17, 1940

Rehearing Denied Oct. 14, 1940.

Error to District Court, Grand County; Charles E. Herrick, Judge.

Proceeding by the Moffat Tunnel Water & Development Company for the appropriation of water, wherein Paul Taussig and others doing business as Taussig Brothers, objected to the entry of conditional water decrees under '35 C.S.A. c. 90, § 195. To review conditional water decrees entered over the objections, the objectors bring error.

Cause remanded with direction to modify the decrees, and decrees affirmed as modified.

On Petition for Rehearing.

Dan Hughes, of Montrose, Silmon Smith, of Grand Junction, Frank Delaney, of Glenwood Springs Moynihan-Hughes, of Montrose, and Tupper, Smith & Holmes, of Grand Junction, for plaintiffs in error.

Bannister & Bannister, Thomas C. Chapin, and Frank J. Trelease, Jr. all of Denver, for defendant in error.

Erskine R. Myer, of Denver, Thomas A. Nixon, of Greeley, and Bartels, Blood & Bancroft, and Frank N. Bancroft, all of Denver, amici curiae.

Hums S. White and Wm. J. Meehan, both of Eagle, and Carl A. Kaiser, of Breckenridge, amici curiae on rehearing.

OTTO BOCK, Justice.

This controversy involves the validity of certain conditional water decrees entered under the provisions of section 195 chapter 90, '35 C.S.A., in Water District No. 51. Only such decrees awarded defendant in error are before us; others entered in the same adjudication are not questioned. Plaintiffs in error are here seeking reversal of the court's action in overruling objections to the entry of the challenged decrees. We shall hereinafter refer to plaintiffs in error as objectors and shall designate defendant in error as the water company.

By leave of court, counsel for the Moffat Tunnel Improvement District, Farmers and Land Owners of Jefferson, Adams and Boulder counties, whose lands are in the Moffat Tunnel Improvement District, and the Northern Colorado Conserviency District were permitted to appear as amici curiae, file briefs and participate in the oral argument. There is no conflict in the evidence and none was introduced by objectors. Seven conditional decrees are involved, namely, those entered for: (1) Hamilton-Cabin Creek Ditch, (2) Extension and Enlargement of Hamilton-Cabin Creek Ditch, (3) Fraser Ditch, (4) Cabin Creek Reservoir, (5) Meadow Creek Reservoir, (6) Ranch Creek Reservoir, and (7) Enlargement of Ranch Creek Reservoir. The water company asserts, and the evidence sustains its assertion, that all of the conditionally decreed rights involved constitute one system, for the collection of water on the Western Slope, to be transported to the Eastern Slope for use, with provision for replacement or compensating water for the benefit of any appropriators on the Western Slope, for water of which they would be deprived. The ditches and reservoirs belonging to the water company, and for which decrees were granted, derive their supply of water from either the Fraser river itself or from tributaries or subtributaries thereof. The Fraser in turn is a tributary of the Colorado river. The water not having been put to any use at the time of the hearing or the rendition of the decrees, only conditional decrees were entered. These decrees do not undertake to assign a specific amount of water to a specific use, but do assign an aggregate amount of water to all uses of each appropriation where more than one exists. The reason given why the statements and conditional decrees did not undertake to allocate the quantity of water to each project under a given decree, is that it was not known at the time of the filing of the statements, or at the time of the hearing, exactly on what location the water would be used, or exactly for what particular purpose; although it does appear that so far as the water system of the water company is concerned, there is involved a transportation of water through the Moffat tunnel to the Eastern Slope, which is to be utilized in the South Platte basin in Colorado, certain townships therein being designated, and the water to be used on the Western Slope would be along the course of Ranch creek or the Fraser river.

Conditional decrees were granted by our courts prior to the passage of section 195, supra. By the enactment of this section, and of sections 196 and 197 in 1919, the legislature set out the procedure to be followed in such matters. Section 195 provides: 'Each claimant for appropriation of water within said water district, whether said appropriation shall have been wholly or partially completed, and though no filing shall have been made in the office of the state engineer, shall appear at said general adjudication proceedings and file his statement of claim and offer proof in support thereof before the district court, or the referee appointed for such purpose, and claims and proofs with respect to partially completed or perfected appropriations shall be presented in the same manner as the claims and proofs for completed and perfected appropriations. The court and referee shall receive and consider all such claims and proofs and if it shall appear that any claimant at said proceedings, or his predecessors in title and claim, has prosecuted his claims of appropriation and the financing and construction of his enterprise with reasonable diligence under all the facts and circumstances surrounding and bearing upon such claim of appropriation, the district court shall enter a decree fixing and determining the priority of right of each such partially completed appropriation as of the date from which such reasonable diligence shall be shown to have been exercised, and fixing the maximum amount of water which such claimant shall be entitled to divert under said priority for the purpose of perfecting his said appropriation, and the court, or the referee, shall further condition such priority of right upon the application of water to beneficial use within a reasonable time after date of the entry of said decree with provision that final decree shall be thereafter entered for such amount of water as shall be shown in a subsequent proceeding to have been applied to beneficial use with such reasonable diligence, and that the amount of water so to be thereafter finally decreed to such appropriation shall in no event be in excess of the maximum amount so fixed in said conditional decree. The court, or the referee, shall give to each such conditional decree the number of its priority like as for a completed appropriation awarded in said adjudication proceedings, but with a letter or suffix following such number to distinguish it as a conditional decree.'

The primary objections to the decrees presented for our consideration involve a construction of this section 195. Was there any evidence of claims and proofs of partially completed or partially perfected appropriations to satisfy the provisions of the section? The record discloses the following steps taken by the water company: Surveys by the predecessor, as applied to the entire system of the water company, were commenced July 2, 1932; the survey work for all component parts was performed by C. L. Chatfield, a licensed engineer, and other engineers working under his supervision and direction, including the preparation of maps for filing with the state engineer; the contents of these maps were set forth in numerous map exhibits; rights of way and options thereto were acquired, and after a period of two and a half years the water company obtained from the Moffat Tunnel Commission, subject to the rights of the City and County of Denver, a right of way through the Moffat tunnel for carriage of its water, the charge fixed therefor being twenty-five cents per acre-foot, with a minimum of $10,850 per year, to be paid by the water company to the Moffat Tunnel District; considerable effort was made to obtain rights of way over the public domain, which so far has not been successful. As for construction work, the record discloses that test holes were drilled at the Ranch Creek Reservoir; that work was performed in the way of clearing timber along the proposed ditch lines; that hill slopes were taken for many miles along the ditch lines; that timber along such lines was classified in respect to lands over which rights of way would have to be obtained, and the survey work was completed in respect to the component parts along the entire system. Approximately $10,000 was spent on this project by the predecessor of the water company, and about the same amount by it up to the time of trial.

Objectors contend that no conditional decree may be entered until the diversion and also the application of water to a beneficial use have been wholly or partially completed. Are there such absolute requirements under section 195, supra, as contended? We think not.

Long prior to the enactment of section 195, quoting with approval from Ophir Silver M. Co. v. Carpenter, 4 Nev. 534 544, 97 Am.Dec. 550, we said: 'Although the appropriation is not deemed complete until the actual diversion or use of the water, still, if such work be prosecuted with reasonable diligence, the right relates to the time when the first step...