Weldon Valley Ditch Co. v. Farmers' Pawnee Canal Co.

• Decision Date: 04 December 1911
• Citation: 119 P. 1056,51 Colo. 545
• Court: Colorado Supreme Court
• Parties: WELDON VALLEY DITCH CO. et al. v. FARMERS' PAWNEE CANAL CO.

119 P. 1056

51 Colo. 545

WELDON VALLEY DITCH CO. et al. v. FARMERS' PAWNEE CANAL CO.

Supreme Court of Colorado

December 4, 1911

Error to District Court, Logan County; E. E. Armour, Judge.

Action by the Farmers' Pawnee Canal Company against the Weldon Valley Ditch Company and others. There was a judgment for plaintiff, and defendants bring error. Reversed.

H. N. Haynes, for plaintiffs in error.

Allen &amp Webster, for defendant in error.

GARRIGUES J.

This case involves the same general subject and object of litigation as Johnson v. Sterling Co., 49 Colo. 482, 113 P 496, namely, to settle the relative priorities and amounts of appropriations of ditches in different water districts of the South Platte river. District 1 comprises that portion of the stream from the mouth of the Cache la Poudre river to the west boundary of Washington county; district 64, the remainder of the stream from the west line of Washington county to the east line of the state. The priorities of all the ditches in these two water districts were settled by statutory decrees, and each district had its own independent adjudication decree long before the bringing of this suit. Logan county was settled prior to Morgan, and the ditches in district 64, for convenience called the 'Sterling Ditches,' generally speaking, are senior in priority to the ditches in district 1, for convenience called the 'Ft. Morgan Ditches.' Plaintiff's is a Sterling ditch, and defendants' in the main are Ft Morgan ditches. The ground of complaint is that, ignoring the seniority of plaintiff's canal in district 64, defendants in district 1, in times of scarcity, take all the water, and prevent it flowing to plaintiff's ditch. It is treated as an appropriate proceeding, in the nature of a bill of peace in equity, to quiet plaintiff's title, to adjudicate its priority as against defendants' priorities, and establish and settle the relative priorities between ditches in the different water districts. The right to maintain the action is conceded, and both sides prayed for similar relief. Indeed, defendants say they were about to commence an action, but plaintiff forestalled them by instituting this proceeding. The decree settles the priorities of the ditches, and commands the water commissioners of districts 64 and 1 to distribute the water in accordance with its terms. Defendants complain that excessive amounts were awarded to the Pawnee ditch, and this is the only question we will consider. All that was said in Johnson v. Sterling Co., relative to the parties selecting the action and agreeing on the theory of the case, applies equally well here. It is not an action to change a settled priority on the ground of subsequent abandonment. It is a proceeding to settle the priorities of ditches in different water districts.

A ditch owner, to be entitled to a decree settling its priority for irrigation, must show its construction, a diversion of water from the stream, carriage through the ditch, and a beneficial application of the water to the land. The court then settles the water right belonging to the ditch by a decree establishing the date and volume of its appropriation. In this case, it fixed the first appropriation of the Pawnee ditch at 47 cubic feet per second, date of priority, September 17, 1873; and the second appropriation at 150 cubic feet per second; priority dating June 22, 1882.

The canal was originally called the 'Buffalo Ditch.' The Buffalo Townsite Company constructed it about a mile and a half or two miles from the river to the old grade of the Colorado Central Railway Company. The original plan, which was abandoned, was to build a ditch about 15 miles long, to irrigate some 5,000 acres. Commencing June 22, 1882, the ditch was built or enlarged, and extended about 25 miles, by the Pawnee Ditch & Improvement Company, which constructed it in part along, over, and through the ditch, route, and right of way of the Buffalo ditch, to cover some 30,000 acres of land, and named the 'Pawnee Ditch.'

In 1873 or 1874, four settlers each made entry to 160 acres of government land at or near the end of the Buffalo ditch, and constructed extensions or laterals from it to irrigate their tracts. The water was beneficially applied on no other lands these were all the lands they owned under the ditch; and they were all the landowners and users of water from the canal until after the construction of the Pawnee ditch, June 22, 1882. This beneficial use of the water by them upon these four places from 1874 to 1882 is, or should be, the basis of the first...