Trinchera Ranch Co. v. Trinchera Irr. Dist.

• Decision Date: 01 June 1931
• Docket Number: 12388.
• Citation: 300 P. 614,89 Colo. 170
• Parties: TRINCHERA RANCH CO. et al. v. TRINCHERA IRR. DIST.
• Court: Colorado Supreme Court

300 P. 614

89 Colo. 170

TRINCHERA RANCH CO. et al. v. TRINCHERA IRR. DIST.

No. 12388.

Supreme Court of Colorado, En Banc.

June 1, 1931

Rehearing Denied June 22, 1931.

Error to District Court, Costilla County; J. C. Wiley, Judge.

Proceeding by the Trinchera Irrigation District against the Trinchera Ranch Company and others, for purpose of securing an order to change the points of diversion of water. Decree for plaintiff, and defendants bring error.

Reversed and remanded, with directions.

Ralph L. Carr, of Denver, for plaintiffs in error.

Albert L. Moses, of Alamosa, and Philip Hornbein, of Denver (on rehearing), for defendant in error.

CAMPBELL, J.

At the January, 1928 term of this court, we set aside a decree of the district court of Costilla county which granted to the Trinchera Irrigation District, a quasi public corporation permission to change 13 different points of diversion of its several irrigating ditches that take waters from three natural streams of the state for irrigating lands owned by residents of the district. In remanding the cause to the district court, we said: 'The judgment must be reversed. If a further hearing is desired, the evidence already introduced may be considered, and further evidence may be introduced by the parties to the proceeding. If the petitioner does not elect to introduce additional evidence the lower court is directed to find the issues for the protestants, and to enter judgment accordingly.' Trinchera Ranch Co. v. Irri. Dist., 83 Colo. 451, 463, 266 P 204, 209.

After the remittitur was sent down, the district petitioner elected to, and did, produce further evidence. The protestants deeming this additional evidence of no probative force declined to avail themselves of the privilege of introducing any further evidence in their own behalf, and rested their case upon the evidence they produced at the first hearing. The district court thereupon found for the petitioner and gave it permission to make the desired changes, and embodied its findings in a new decree, which is substantially the same as the decree that was rendered at the first hearing. The protestants excepted thereto and have brought up this decree for a review.

By statute and repeated decisions of this court, changes of points of diversion may lawfully be made only under a decree of court permitting it. This irrigation district, however, ignored this requirement, and many years ago, apparently acting upon the advice, not of its attorney in this case but of its former counsel, made the changes involved here and diverted its respective priorities through the new headgates at the new points of diversion, and thus irrigated its lands continuously until some time in the year 1925 when the water commissioner of the district notified the petitioner that thereafter he would not recognize its asserted right to divert its decreed appropriations at these new headgates, unless and until the required permissive decree therefor was obtained. The petitioner then filed its petition in the district court of Costilla county, which is the tribunal which theretofore had established the respective priorities in this irrigation district, for a decree authorizing a change of the respective points of diversion, which change, as matter of fact, it had years before unlawfully made without obtaining the required permission to do so. It may be that the district court might properly have refused to exercise its jurisdiction at the solicitation of an applicant which had ignored repeated decisions of this court, and unlawfully assumed the right to exercise its pretended authority to effect the changes which only a court could give. But without approving the course pursued here by the petitioner district, since no objection on this ground was interposed below by the protesting respondents, we shall treat this proceeding, as the parties themselves have done, as one by an owner of irrigation priorities who seeks permission of a court to change points of diversion that have not already been made, and dispose of the case on that theory.

Upon the record now before us the real and controlling question for determination is: Does the additional evidence at the second hearing, taken in connection with the evidence produced at the first hearing, justify a decree authorizing the changes sought? Before discussing this proposition we wish, however, to call attention, in order to express our disapproval of the same, to the course pursued by counsel for the defendant in error in the first 26 pages of his brief. He says therein that he wishes 'to call this court's attention to one or two matters appearing in the opinion handed down,' meaning the opinion of Judge Butler on the former hearing. In effect, these preliminary observations, under the guise of pointing out certain matters appearing in our former opinion, in reality constitute a covert attack upon the integrity of the opinion itself, long after the expiration of the time for filing a petition for a rehearing. Such a discussion is wholly inappropriate at this time, and should not have been made. We merely add that further consideration strengthens our approval of our former opinion. We are satisfied with it now as we were when it was handed down, and shall make no changes in it. It should be read in connection with this opinion upon the second hearing. To restate its argument would unnecessarily incumber the record. The legal profession has access to our reports, and those interested in the questions involved here will have no difficulty in ascertaining the facts and the principles of law applicable thereto by reading the two opinions.

Our examination of the record now before us convinces us that the evidence produced by the petitioner at the second hearing in no wise strengthens its case as made at the first hearing....