Wadsworth Ditch Co. v. Brown

• Citation: 39 Colo. 57,88 P. 1060
• Parties: WADSWORTH DITCH CO. et al. v. BROWN.
• Decision Date: 04 February 1907
• Court: Supreme Court of Colorado

88 P. 1060

39 Colo. 57

WADSWORTH DITCH CO. et al. v. BROWN.

Supreme Court of Colorado

February 4, 1907

Appeal from District Court, City and County of Denver; Booth M Malone, Judge.

Suit by H. R. Brown against the Wadsworth Ditch Company and others. Decree for plaintiff, and defendants appealed. Reversed, and remanded for further proceedings.

J. W. Barnes, Thomas & Thomas, and Theodore H Thomas, for appellants.

Samuel W. Johnson (George W. Taylor, of counsel), for appellee.

CAMPBELL J.

This is a special proceeding under the statute (Sess. Laws 1903, p 278, c. 124), in which the petitioner applies to have changed the point of diversion of his right to use water from a natural stream of the state for irrigation. From a decree giving the relief asked, certain of the respondents have appealed.

The remedy provided by a similar act has been held to be exclusive. Irrigation Co. v. Water S. & S. Co., 29 Colo. 469 68 P. 781. The statute substantially provides that any person desiring to make such change shall file a petition in the proper court and give to all persons who may be affected thereby the same notice which is now provided by law in statutory water adjudications. Upon proof that such notice has been duly given and served, the court is required to determine whether or not such change will injuriously affect the vested rights of others, and, if the finding is that it will not, a decree must be entered permitting the change, and if injury would result by allowing the change to be made absolutely, or without restrictions, nevertheless, if it can be made upon terms and conditions that necessarily will prevent or obviate the injury and protect the parties so affected, the court may decree the same upon such terms and conditions; otherwise, and if impossible to protect the parties injuriously affected, the application will be denied. The petitioner owns, or claims to own, certain certificates of stock of the Wadsworth Ditch Company, a mutual ditch company organized for the purpose of furnishing water for irrigation to its own stockholders. No beneficial use can longer be made of the water to which stock entitles petitioner upon any lands owned by him lying under the ditch. He therefore desires to divert the water at a point higher up the stream, and use his appropriation upon his lands lying under the canal of the Farmers' High Line Canal & Reservoir Company. The appellants are not in accord in all respects in their objections to the decree; but we shall dispose of all of them, without stopping, in every instance, to designate the respective contentions.

1. It appears that under the appropriate statutory proceedings a valid decree has been heretofore rendered establishing the relative priority of rights to the use of water for irrigation in this particular water district. All of the parties here appeared in that proceeding, and their rights were there adjudicated. They all claim under the same decree and are bound by its provisions. It is said by some of the appellants that the petitioner has no rights under this decree, because the Wadsworth Ditch Company, through ownership of whose stock he bases them, was never entitled to the quantity of water which the decree gave, and that after its rendition a large part of the priority awarded thereto has been abandoned. We are of opinion that if, under the evidence, there is any basis for these contentions, the statute under which the present proceeding is being conducted did not contemplate their determination. Merely the right of the petitioner to have such change made can be determined. Besides, the decree under which all these parties claim established that the Wadsworth ditch was entitled to a priority for a given amount of water, and that determination is res judicata as to them. Whether there has been an abandonment of the priority, or any portion thereof, after the decree was rendered, is, as we have just said, a matter to be settled in some other and appropriate proceeding. In thus disposing of this point, we must not be understood as intimating that it has any basis in the evidence. We express no opinion whatever concerning it.

2. It is objected that the statute was not intended to apply to mutual ditch companies. The statute says: 'Every person, association or corporation desirous of changing in whole or in part the point or points of diversion of his or its right to use watere from any of the streams of the state, shall present a petition,' etc. This language is broad enough to include mutual ditch companies and shareholders who are consumers. We know of no reason why discrimination should be made against the right claimed when the one who asserts it is under a mutual ditch. The right to change is a property right. It was not conferred by this remedial statute. It is a pre-existing right, and always could be enforced so long as the rights of others are not thereby injuriously affected, and belongs to the stockholder (consumer) in a mutual ditch company as fully as to any other appropriator. In Irrigating Co. v. Reservoir Co., 25 Colo. 144, 53 P. 318, 71 Am.St.Rep. 123, was a recognition of the right of a stockholder in a mutual ditch company to change the place of use of water. The same principle applies to the change of the point of diversion. This court has already decided against appellants' contention on this branch of the case. Hallett v. Carpenter (Colo.) 86 P. 317. See, also, City of Telluride v. Davis, 33 Colo. 355, 80 P. 1051, 108 Am.St.Rep. 101.

3. Of the appellants, the Wadsworth Ditch Company is the senior appropriator. It is said by the junior appellant appropriators that, if petitioner is permitted to make this change, their rights as subsequent appropriators will be injuriously affected. The contention is that, inasmuch as some of the water which is now being diverted from the stream through the Wadsworth ditch, when not entirely consumed by its stockholders, as is the case at certain seasons of the year, passes from its tailgate back into the stream at a point therein above the headgates of the ditches of these junior appellants, and may now be used by them; whereas, if petitioner is permitted to have that part of the Wadsworth priority to which his stock entitles him diverted at a point higher up the stream than the headgate of the Wadsworth ditch, such waste water will not be enjoyed by them to the same extent that it now is. There is no proof that any valid appropriation of this waste water had ever been made by appellants; and the court must have found that the same quantity of waste water will reach the headgates of appellants' ditches after the contemplated change is made as would have flowed down to them if the entire appropriation of the Wadsworth ditch was turned into its own headgate. There was evidence to support such findings of the trial court, and we cannot disturb them.

4. The Wadsworth Ditch Company is one of the appellants, and complains of the decree (1) because the proposed change injuriously affects its corporate vested rights; (2) that no notice was given of this proceeding, as required by the statute; and (3) that the petitioner was not a proper party to maintain the action, because he was not the owner of any stock in the Wadsworth ditch or of any water right thereunder. There was a by-law of the Wadsworth Company and a general custom of its stockholders that, when one has no immediate use for his proportionate share of water, the other stockholders may use the same upon their land. The company therefore says that to permit petitioner to take out his...