Trowel Land & Irrigation Co. v. Bijou Irr. Dist.

• Decision Date: 06 May 1918
• Docket Number: 8756.
• Citation: 176 P. 292,65 Colo. 202
• Parties: TROWEL LAND & IRRIGATION CO. v. BIJOU IRR. DIST. et al.
• Court: Colorado Supreme Court

176 P. 292

65 Colo. 202

TROWEL LAND & IRRIGATION CO. v. BIJOU IRR. DIST. et al.

No. 8756.

Supreme Court of Colorado, En Banc.

May 6, 1918

Rehearing Denied Dec. 2, 1918.

Error to District Court, Weld County; Robert G. Strong, Judge.

Proceeding between the Bijou Irrigation District and others and the Trowel Land & Irrigation Company, a corporation, for general adjudication of priority rights to water for irrigation. From a decree in favor of the Irrigation District, the Company brings error. Judgment affirmed.

Goudy, Twitchell & Burkhardt, of Denver, for plaintiff in error.

James W. McCreery and Donald C. McCreery, both of Greeley, and Robert M. Work and Stephenson & Stephenson, all of Ft Morgan, for defendants in error.

SCOTT J.

In a general adjudication of priority rights to water for irrigation purposes in water district No. 1, in the district court of Weld county, entered on the 1st day of November 1895, the Ft. Morgan Land & Reservoir Company, predecessor to the defendant in error, the Bijou irrigation district, was awarded a decree for 125 cubic feet of water per second of time, as of priority date of October 1, 1888. These waters were from the South Platte river.

The provision contained in the decree, material here, was as follows:

'Said ditch, since its construction, not having as yet been used to its full capacity for the irrigation of the lands thereunder, and only a portion of the lands lying under said ditch and intended to be irrigated therefrom having as yet been irrigated. And it is hereby ordered, adjudged, and decreed that there be allowed to flow into said ditch from said stream, for the benefit of the parties entitled thereto, at such times as the same may be needed for the irrigation of lands thereunder, under and by virtue of appropriation by construction of said ditch, and the diversion and use of water thereby, and on priority No 41, as aforesaid, one hundred and twenty-five (125) cubic feet of water per second of time, without prejudice to the rights of said ditch or the owners thereof to have adjudged to it a larger appropriation of water under said priority upon further and additional testimony as to the appropriation and use of a larger amount of water thereby, within a reasonable time.'

In a special proceeding and upon petition of Charles J. Cooper, predecessor of the Trowel Land & Irrigation Company, plaintiff in error, a decree was entered in said court on July 14, 1904, granting to the Trowel ditch a priority, which was numbered 49, for 90 second feet of water, of priority date of December 27, 1900, and at the same time denying the claim of said ditch to 15 second feet of water claimed as an overflow right. All parties here appearing at that time interested in the appropriated waters from the stream were made parties to the latter proceeding. A referee was appointed, and all parties, including the defendant in error and its predecessors, were duly notified, and appeared at the hearing, both before the referee and the court.

In that proceeding neither the Bijou Company nor its predecessors made claim of right for additional priority to that awarded by the decree of 1895. The Broad Run Investment Company, predecessor to the Trowel Company, appealed to this court from that part of the decree which denied its claim to the 15 second feet as an overflow water right. The judgment of the district court was affirmed. Broad Run Investment Co. v. Deuel & Snyder, 47 Colo. 573, 108 P. 755.

This proceeding is one is general adjudication of the water rights of district No. 1, in the said Weld county district court, instituted January 5, 1909, and the claimed priorities of the plaintiff and defendant in error only are here involved. The Bijou Irrigation Company, claimant of the Bijou ditch and canal, filed its statement of claim for 450 cubic feet of water per second of time, claiming priority as of October 1, 1888, the date of its former decreed priority, and an additional 85 cubic feet per second of time as an enlargement as of date of April 1, 1900. The 450 second feet so claimed was to include the 125 granted under the decree of 1895.

By the decree now under consideration the court allowed the claim of the Bijou Company for 450 second feet, including the 125 feet allowed by the decree of 1895, as of date of October 1, 1888, and an additional 50 cubic feet per second as of priority date of April 1, 1900, under its claim of enlargement. It will be noted that these priorities antedated the Trowel ditch priority, of date of December 27, 1900, for 90 cubic feet, under the decree of 1904. The court further renumbered the Trowel ditch priority, making it No. 56, instead of No. 49, as fixed by the original decree.

The claim of the Trowel ditch was and is that it is entitled to a priority of 90 feet as of date of December 27, 1900, superior to the claim of the Bijou ditch, excepting only the 125 cubic feet awarded that ditch by the decree of 1895. The Trowel ditch also claims a priority under the Shoemaker seepage ditch, which will be later considered.

It is the contention of the plaintiff in error that in this general adjudication proceeding it was improper to assail its decree of 1904, for the reason that both the two and four year statutes of limitation had lapsed prior to the institution of the proceeding; that the proceeding of 1904 was regular, and was sustained by this court in the Broad Run Case and therefore the doctrine of res adjudicata must apply.

The Bijou Irrigation Company, on the other hand, contends that the decree of 1904 was a special proceeding, that it was a proceeding for the adjudication of the rights of the Trowel ditch only, and that no general notice was given to all priority holders in the district to come in and make proof of their claims, and that it was entitled, therefore, to come in and 'have adjudged to it a larger appropriation of water under its priority, decreed in 1895, upon further and additional testimony as to the appropriation and use of a larger amount of water thereby, within a reasonable time,' as provided in its original decree.

The real question here is: What are the priority rights of the Bijou Company to the water decreed in this proceeding, by relation to the decree of 1895, and are such rights prior and superior to those decreed to the Trowel Company by the intervening decree of 1904? The decree of 1895 gave the Bijou ditch 125 cubic feet per second of the time as of date of October 1, 1888. It is conceded that to this extent the decree is absolute, and is not to be disturbed.

Counsel for the Trowel Land & Irrigation Company say that the contention in behalf of that company is in no sense an attack upon the decree of 1895; that the attack is upon the award in the present proceeding, to the Bijou ditch, of the 325 feet as additional to and part of the awards of 1895 decree, and the dating thereof as of the date of the award in that decree; also upon the award of 50 feet additional by reason of the enlargement as of date of April 1, 1900.

In the adjudication proceeding now under consideration, the court found in substance, as to the owners of the Bijou ditch and their predecessors in interest:

'Within a reasonable time after construction of its original capacity, and continuously since, the full amount of 450 cubic feet was diverted when supply was available, and was applied to irrigation of lands. Work of construction upon said enlargement was begun April 1, 1900, and was completed with due diligence, within a reasonable time; and continuously since, whenever supply was available, there has been diverted by said enlargement and applied to irrigation of lands the amount of 50 cubic feet of water in addition to that diverted by its original size. The amount of land to which water has been applied by this ditch is 38,400 acres. There is served by this ditch, and by Bijou No. 2 and Empire reservoirs, the total amount of 50,000 acres of land, which lie under this ditch and are susceptible of irrigation from it.

'The volume of water appropriated from the South Platte river by original construction and use of said ditch is the amount of 450 cubic feet per second; said appropriation took effect October 1, 1888. The ditch priority No. 41 awarded this ditch conditionally in the decree in case No. 433 should be made final for the amount of 450 cubic feet per second, to date from October 1, 1888. This is the entire amount of said priority.

'By said enlargement claimant has appropriated from said river for said use the additional amount of 50 cubic feet of water per second; said appropriation took effect April 1, 1900. Said ditch is thereby entitled to ditch priority No. 51 in Weld, Morgan, and Washington counties.'

It is conceded that by the 1895 decree the ditch was found to have capacity of 450 feet per second of time, though by reason of nonapplication to a beneficial use its decreed priority was necessarily limited to 125 feet per second, and the date of its priority was fixed by the decree as of October 1, 1888. Then, if there is evidence in this case upon which to base the further findings of the court as to reasonable diligence and application to beneficial use, such findings may not be disturbed, and under the settled law, and by the doctrine of relation in this jurisdiction, its priority for the 450 feet so applied must be fixed as of date of October 1, 1888.

The testimony shows that the enterprise passed through many vicissitudes, including foreclosure and changes of ownership, until about the 1st day of April, 1900, when work of repair commenced and continued, with the application of water, when available, until time of trial. The expense upon the ditch since such renewal of diligence is estimated at $200,000. Water...