Vogel v. Minnesota Canal & Reservoir Co.

• Decision Date: 07 March 1910
• Citation: 47 Colo. 534,107 P. 1108
• Parties: VOGEL et al. v. MINNESOTA CANAL & RESERVOIR CO. et al.
• Court: Colorado Supreme Court

107 P. 1108

47 Colo. 534

VOGEL et al. v. MINNESOTA CANAL & RESERVOIR CO. et al.

Supreme Court of Colorado

March 7, 1910

Appeal from District Court, Delta County; Thereon Stevens, Judge.

Proceedings by Peter Vogel and others against the Minnesota Canal &amp Reservoir Company and others, for an order changing the point of diversion up the stream of certain priorities to the use of water for irrigation drawn from Minnesota creek. From a judgment allowing a change of four second cubic feet petitioners appeal. Affirmed.

This is a proceeding by Peter Vogel, and others like situated, for an order changing the point of diversion up the stream, of certain priorities to the use of water for irrigation drawn from Minnesota creek, awarded to the Clark & Wade ditch, a portion thereof to the Turner ditch and the balance to the Beaver Dam ditch, the former located a distance of about four miles above the original headgate of the Clark & Wade ditch and the latter about seven miles. The owners of the Sweezy &amp Turner ditch, the Clough & Turner ditches Nos. 1 and 2 and the Minnesota Canal, all junior appropriators of water from Minnesota creek, protest this application, and allege injury to their respective vested rights to the use of water for irrigation from that creek and in the conditions thereon as they prevailed at the time and times of their respective appropriations. The headgate of the Turner ditch is above the headgates of the Clough & Turner ditches Nos. 1 and 2 and the Minnesota Canal, but below the headgate of the Sweezy &amp Turner ditch. The headgate of the Beaver Dam ditch is above the headgate of all other ditches on the stream. The first priorities of the Clark & Wade ditch, aggregating seven second cubic feet, are first in point of time on the stream and all its priorities are older than those of the Sweezy & Turner ditch, the Clough & Turner ditch No. 2 and the Minnesota Canal. Its first and second enlargements, aggregating two and eighty-six hundreths second cubic feet, are younger than the priority of the Clough & Turner ditch No. 1. It is sought to divert all of the priorities of the Clark & Wade ditch, except about one-half a second cubic foot, to the upstream ditches. The original diversion point of this ditch is below all other headgates on the stream. The lands which it is proposed to irrigate from the new points of diversion with the priorities of the Clark & Wade ditch are outside the drainage of Minnesota creek, and there will be no return water thereto from the proposed new irrigation.

The normal flow of Minnesota creek, after the middle of July in each season, is small and probably not in excess of an average of seven cubic feet, insufficient to fully supply the decreed rights of the Clark & Wade ditch. In the past the diversion of water by this ditch has not been regular or constant, and it has not in fact diverted at all times, or for any considerable portion of the time, the entire amount of water decreed to it. It also appears that those under the Sweezy & Turner ditch, the Clough & Turner ditches Nos. 1 and 2 and the Minnesota Canal have been able, practically all of the time for a long period of years, to secure water each season, subsequent to the date above mentioned, notwithstanding the fact that the Clark & Wade first priorities are in excess of such normal flow, sufficient to irrigate and mature field and orchard crops. That the Sweezy & Turner ditch was never closed down, prior to the year 1902, and then only once, and this too after a portion of the Clark & Wade priorities had been diverted through the Turner ditch; that the Clark & Turner ditches Nos. 1 and 2 have never been closed down. The petitioners admit that they intend to apply to Clark & Wade priorities to several hundred acres of new land lying under the Turner ditch, and that even if all of the water belonging to these priorities is applied continuously to those lands the supply will still be inadequate to irrigate them. It further appears that the supply of water to Minnesota creek is at all times greatly limited, and that the Clark & Wade ditch priorities constitute a major part of the natural flow thereof. It also appears that if this proposed change in point of diversion is effected, it will imposed upon the remaining minor part of the natural flow of the stream the entire burden of loss by seepage and evaporation that occurs before the water reaches the headgates of ditches downstream. The testimony shows that the bed of the stream is broad, covered with rocks, gravel and obstructive growths, all more or less augmenting the natural losses, which in the past have been shared by the entire flow of the stream. It appears that, if the Clark & Wade priorities are diverted from the stream at its old headgate, all accretions to the stream from points above through return waters from irrigation, will assist in furnishing water to satisfy those priorities. Whereas if the point of diversion be removed up the stream, a part to the headgate of the Turner ditch and a part to the headgate of the Beaver Dam ditch, such accretions will be unavailable.

King & Stewart, Millard Fairlamb, Milton R. Welch, and Goudy & Twitchell, for appellants.

Bell, Catlin & Blake and Merle D. Vincent, for appellees.

BAILEY, J. (after stating the facts as above).

That the right, in an owner of a water priority for irrigation, to change the point of diversion is not absolute is well settled. It is a qualified right, and its exercise is conditional upon the fact that such change will not injuriously affect the vested rights...