Trinchera Irr. Dist. v. First Nat. Bank, 14445.

• Decision Date: 15 April 1940
• Docket Number: 14445.
• Parties: TRINCHERA IRR. DIST. v. FIRST NAT. BANK OF COLORADO SPRINGS et al.
• Court: Colorado Supreme Court

102 P.2d 909

106 Colo. 128

TRINCHERA IRR. DIST. v. FIRST NAT. BANK OF COLORADO SPRINGS et al.

No. 14445.

Supreme Court of Colorado, En Banc.

April 15, 1940

Rehearing Denied May 27, 1940.

Error to District Court, Costilla County; John I. Palmer, Judge.

Proceeding for the adjudication of water rights by the Trinchera Irrigation District, a public corporation of the State of Colorado, against the First National Bank of Colorado Springs, as trustee, and others. To review an adverse judgment, plaintiff brings error.

Affirmed.

FRANCIS E. BOUCK, J., dissenting.

Moses & Moses, of Alamosa, for plaintiff in error.

Jean S Breitenstein, John G. Reid, and John H. Shippey, all of Denver, for defendants in error.

BAKKE Justice.

This case was before us on a former occasion. Trinchera Irr Dist. v. Trinchera Ranch Co., 100 Colo. 181, 66 P.2d 539, 540. The present defendants in error have been substituted for the former defendants. On the previous hearing the judgment was reversed and the cause 'remanded, with directions to take further evidence if such be available, and thereupon to make findings and a decree in conformity herewith.'

A review of these Trinchera cases (the parties in each instance being the same) reported in 83 Colo. 451, 266 P. 204; 89 Colo. 170, 300 P. 614, and 100 Colo. 181, 66 P.2d 539, shows that they involve different legal problems affecting irrigation in the same general area, but none of the opinions in those cases has presented a sufficiently definite picture of the immediate topography of the area to render understandable the condition existing in the case at bar. For the purpose of clarifying the situation, we adopt the description of defendants in error here, which is in no wise challenged by plaintiff in error. 'The Mountain Home Valley, or as it has been called, the Home Ranch of the Trinchera Estate, is topographically an oval bowl some four miles in length and varying in width up to some two or three miles. This bowl declines toward the west at approximately 70 feet to the mile and at the lower end is constricted by a bottle neck across which has been constructed a dam owned by the Trinchera Irrigation District, plaintiff in error. This dam makes of the lower end of the Mountain Home Valley a reservoir which is used for the storage of water. The dam is thrown directly across the channel of the Trinchera Creek which bisects the valley throughout its length and which runs through the lands owned by the defendants in error here, upon which lands the water under the decrees in question is used. There are in the valley no landowners other than the defendants in error here, and no other owners of water rights diverting or using water at any point in the valley. It should be further noted that the Mountain Home Reservoir of the plaintiff in error lying, as it does, at the lower end of the valley is the natural drain and catch basin of the large return flows resulting from the irrigation of the valley lands.'

Comment was made upon this physical situation in the case of Monte Vista Canal Co. v. Centennial Irrigating Ditch Co., 24 Colo.App. 496, 135 P. 981, which is quoted in the opinion in Trinchera Ranch Co. v. Trinchera Irrigating Dist., 83 Colo. 451, at page 461, 266 P. 204 at page 208, as follows: 'The vast territory irrigated or to be irrigated from the Rio Grande river may be benefited in general by the application of water during flood seasons to the largest possible area of irrigated lands; that thereby the soil of the entire area becomes a vast reservoir from which the water has a tendency to return slowly to the stream at some point in its course, and thereby many more acres, as a whole, may be irrigated that if the water were permitted to run off * * *.'

In the case at bar this theory is applicable, of course, only to the 'bowl,' of defendants in error, drained by Trinchera creek.

It is undisputed that the only purpose of the petition for adjudication of the water rights here involved is to have the court give legal approval of the use of water as practiced by defendants in error for nineteen years. We deem it unnecessary to recite the decrees, for the reason that they are not challenged if the theory upon which they are based is not erroneous.

While plaintiff in error submits thirty-three assignments, it summarizes its entire position in the query, 'Will the Court affirm a decree which awards one cubic foot of water for 30 (26 under the present decree) acres of land when...