Water-Supply & Storage Co. v. Tenney

• Citation: 24 Colo. 344,51 P. 505
• Parties: WATER-SUPPLY & STORAGE CO. v. TENNEY, Water Com'r, et al.
• Decision Date: 04 March 1897
• Court: Supreme Court of Colorado

51 P. 505

24 Colo. 344

WATER-SUPPLY & STORAGE CO. v. TENNEY, Water Com'r, et al.

Supreme Court of Colorado

March 4, 1897

Appeal from district court, Larimer county.

Action by the Water-Supply & Storage Company against Rollin Q Tenney, as water commissioner, and another, to restrain defendants from diverting the water in a certain river, and for other relief. From the judgment rendered, plaintiff appeals. Reversed.

This action was instituted by the plaintiff corporation (appellant here) to restrain the defendant water commissioner and the defendant company, appellees, from diverting water from the Cache la Poudre river for the defendant's North Fork ditch, until after the Larimer county ditch, belonging to the plaintiff, received its alleged earlier appropriation. Both corporations own ditches taking water from the Cache la Poudre river, and both base their rights upon a decree of the district court of Larimer county of date April 11, 1884 which was rendered in proceedings, duly instituted under the irrigation acts of 1879 and 1881, having for their object the adjudication of priorities to the use of water for irrigation purposes in that particular water district. To the proceedings leading up to the decree the grantors respectively, of both of the corporation litigants, were parties. They appeared therein, and offered evidence, and neither of them, nor their grantees, have in any way sought to have a review of said decree, either upon the same or additional evidence, or by appeal, within the time fixed by the statute governing the right of review in the same or in the appellate court. So no question arises as to rights of those not parties to this decree. While the parties here rely upon the decree, the present controversy arises chiefly out of the different constructions which they put upon that portion of it adjudicating the rights of the defendant company's ditch. As an amendment to its answer, the defendant company sets up what it calls a fourth defense, in which it is alleged that in the proceeding heretofore mentioned, and in subsequent proceedings had in said original proceeding, there was decreed to the grantor of the defendant the North Poudre Land & Canal Company a priority, numbered 97, for the use of water to the amount of 307 cubic feet of water per second of time, dating from the 1st day of February, 1880. In the same proceeding, it is alleged, the plaintiff company's grantor also obtained a decree by which it was ordered that said grantor should have a priority to the use of water from the same river, to the amount of 463 cubic feet per second of time, dating from the 25th day of April, 1881. Therein it is further alleged that, ever since the date of the decree thus fixing the respective priorities of the parties, the defendant has, in each and every year exercised its right to have the water turned into its ditch by the water commissioner to the extent of the appropriation awarded it, and that the water commissioner has recognized, during all such time, a seniority of the defendant's appropriation over that of the plaintiff, and that plaintiff and its grantor, during all of such time, well knew that the defendant and its grantor claimed, took, and used the water by virtue of its said priority, and, notwithstanding the same, the plaintiff and its grantor were silent with respect thereto, and made no complaint, objection, or protest to the defendant or to the water commissioner until about the time of the beginning of this action, in August, 1893. To this defense there was interposed by plaintiff a replication, and the second reply thereof to the said fourth defense in terms pleaded the exact language of the decree in question. The defendant then moved to strike out the said second reply, which motion was sustained by the court. After issues of fact had been made by the pleadings, and preliminary questions of law settled by various motions and demurrers, a hearing upon evidence was had before the court without a jury. There was also some controversy between the parties as to certain reservoirs owned by them. Upon final hearing, the preliminary writ of injunction--which had been issued at the instance of the plaintiff upon the filing of its complaint, by which the defendants were restrained from diverting the water until after the plaintiff had obtained what it claimed it was entitled to under its appropriation--was dissolved and held for naught, except as to plaintiff's reservoirs numbered 2, 3, and 4, and as to them the injunction was made perpetual; the decree in this respect being that the plaintiff had the right to store water in its said reservoirs, for the purpose of irrigating its lands, to the extent of their capacities as then constructed. As to the controversy respecting the Larimer county ditch, now owned by the plaintiff, and the North Fork ditch, owned by defendant company, the finding and decree were in favor of the latter. That portion of the decree of 1884 particularly affecting the defendant company is as follows: 'No. Sixty-One. The North Poudre Land, Canal and Reservoir Company Ditch. That the work referred to in the original decree, on which said ditch should be entitled to priority No. 87 in said decree, has been completed for about two miles to the lower end of that portion of the ditch known as 'Cañon Line,' and partially completed about five miles below the end of said Cañon Line. That about $153,000 have been expended in the construction of said ditch, and the greater portion thereof on that part of said ditch known as the 'Cañon Line.' That said ditch is entitled to priority No. 97 of this new numbering, limited, however, as follows: There shall be allowed to flow into said ditch, to the lower end of said Cañon Line, so much water as said ditch will carry, it being eight feet in width, six feet in depth, and a grade of 10 and 56/100 feet per mile, and above said lower end said water may be taken from the said ditch by laterals, the amount computed at 307 cubic feet of water per second of time, and said water on said priority may be used in and applied in its use to said ditch below said Cañon Line as fast as said ditch shall be completed and ready to use the same and does use the same; and said water may be used for the purpose of filing the reservoirs marked on the map thereof in the testimony, respectively, Nos. 1, 2, 3, 4, 6, 16, 17, 18, 19, and 21, provided that the work on said ditch and reservoirs shall be diligently prosecuted and completed within a reasonable time: provided, also, that when said ditch and reservoirs are fully completed, if there shall be a scarcity of water so that they cannot be filled, then the right to the full use of said priority in said ditch and reservoirs shall date from the time of their completion: provided, also, that if any laterals shall be taken out above said lower end of said Cañon Line, that the same shall be within reasonable time, and the work thereon shall be diligently pursued.'

George W. Bailey, H. I. Garbutt, and H. N. Haynes, for appellant.

Charles H. Toll, Wiliam R. Barbour, C. M. Garwood, Francis G. Hamer, and J. W. McCrury, for appellees.

CAMPBELL J. (after stating the facts).

Among the errors assigned is one that the court below erred in sustaining the defendant's motion to strike out the second reply to the fourth amended defense of the answer. Interesting as the question of pleading sought to be raised may be, inasmuch as the plaintiff was permitted, without objection from the defendant, to introduce in evidence, according to plaintiff's own admission, the very matters attempted to be set up in this reply, the error is cured, if any there was, in sustaining the motion to strike.

The construction placed by appellant upon that portion of the decree which awards to the defendant company its priority is that, whenever there is a scarcity of water in the stream the date of such priority takes effect, not from the beginning of the work, but from the date of its completion. Upon the other hand, the various contentions of the defendant corporation with respect to the merits of the case are, first, that the decree of 1884 is itself absolute; that it determines the quantity of water to which defendant's ditch, in its entirety, is entitled, and fixes with certainty the date of the appropriation as of the time of beginning the work, viz. in 1880; that were this not so, and the decree merely a conditional one, or that, by the terms thereof, the priority was to date only from the completion of the work, nevertheless, by reason of the acquiescence upon the part of the plaintiff company, and by its conduct in silently standing by and seeing the water commissioner make distribution of the water upon the basis of the decree as construed by said water commissioner, by which the defendant's priority over the plaintiff was acknowledged and recognized, the plaintiff is thereby estopped now from questioning the absolute verity of the decree, and must be held to have waived any superior rights, if any it ever had. The defendant further contends that, under its certificate of incorporation, plaintiff had no corporate power to acquire the water rights decreed to the Larimer county ditch; and that under the evidence introduced in this case, even were the entire matter of the adjudication of water rights open for determination, the proof shows that defendant's rights are superior to those of the plaintiff. Section 314 of the General Statutes of 1883 (Mills' Ann. St. § 573) gives rise to another point of dispute between the parties, the plaintiff claiming that thereunder, unless the ditch or canal of the defendant company was completed within three years from the beginning of the work, the date of priority attaches as of the date of the completion,...