Water Rights in Water Dist. No. 32, In re, 24836

• Decision Date: 06 March 1972
• Docket Number: No. 24836,24836
• Citation: 494 P.2d 593
• Parties: Adjudication of WATER RIGHTS IN WATER DISTRICT NO. 32. MONTEZUMA VALLEY IRRIGATION COMPANY, Plaintiff in Error, v. J. T. WILKERSON, Defendant in Error.
• Court: Colorado Supreme Court

Page 593

494 P.2d 593

177 Colo. 373

Adjudication of WATER RIGHTS IN WATER DISTRICT NO. 32 MONTEZUMA VALLEY IRRIGATION COMPANY, Plaintiff in Error, v. J. T. WILKERSON, Defendant in Error.

No. 24836.

Supreme Court of Colorado, En Banc.

March 6, 1972.

Parga, Dyer & Buck, Cortez, Raphael J. Moses, Boulder, for plaintiff in error.

Maynes & Anesi, Frank E. Maynes, Durango, for defendant in error.

GROVES, Justice.

The trial court denied the motion of the irrigation company to modify, correct or amend a water adjudication decree on the grounds of Res judicata. We affirm in part and reverse in part.

Related litigation between these parties was here as Montezuma Valley Irrigation Company v. Wilkerson, 167 Colo. 192, 446 P.2d 703 (1968). Some discussion of the facts and issues in that case is a necessary preliminary to this one. The irrigation company derives its water in Water District 34 in the Dolores River drainage. Part of its water delivery system, carrying Dolores River water, proceeds through Water District 32, in the San Juan River drainage. A portion of this system in District No. 32 uses the Rocky Ford arroyo as a lateral.

Commencing in about 1959 the defendant Wilkerson began taking water from a headgate on the arroyo. In 1961 the plaintiff brought an action to enjoin this diversion. A general adjudication proceeding in District 32 had been pending for many years. In 1950 the defendant had filed a claim in the water adjudication for water allegedly appropriated by him in 1909 from the natural flowage in the arroyo. He obtained a decree under this claim in 1962. In the injunction action the irrigation company disputed the fact of appropriation by the defendant and also asserted that the defendant lost any rights by abandonment or adverse user. The defendant claimed that the irrigation company had not used the arroyo by the time the defendant's predecessors in interest made their appropriation, to which assertion the irrigation company took issue.

The irrigation company contended that the water being taken by the defendant was District 34 or Dolores River water, while the defendant claimed that the water being taken was from the San Juan drainage, or District 32 water. The irrigation company had all its decreed rights in District 34 and contended that this was the district in which the defendant should obtain a decree. Not having decreed priorities in Water District 32, it was given no notice of the defendant's claim in that water district. Apparently, the irrigation company first learned of the defendant's decree when it was pleaded in the injunction action. The irrigation company then filed its motion to modify, correct or amend the decree under C.R.S.1963, 148--9--17 (the 4-year statute relating to opening of decrees at the behest of someone having decrees in another water district).

The main thrust of the trial court's decision in the injunction action was that the irrigation company could not collaterally attack the defendant's decree and, therefore, it could not enjoin defendant's use under the decree. Mr. Justice McWilliams in the 1968 opinion affirmed. In the opinion he indicated that better procedure would have been first to have a determination of the motion attacking the defendant's decree before proceeding with the injunction action. The opinion further stated that, should the irrigation company prevail in setting aside the defendant's decree, nothing contained in the opinion should be construed as barring the water company from instituting another injunction action.

The water company then called up for hearing its motion in the adjudication proceeding, attacking the defendant's decree and, as indicated, the court denied the motion on the ground that all material issues raised had been adjudicated by the trial court in the injunction action. It is from that denial that this writ of error was sued out.

Mr. Justice McWilliams concluded his opinion as follows:

'(The irrigation company) also contends that assuming for the sake of argument that defendant did have the right to divert from headgate No. 1 on the Rocky Ford, such right had been abandoned by the defendant and he was somehow now estopped from asserting his right. The trial court found,...