City of Westminster v. City of Broomfield , 13 Brief Times Rptr. 224 ( 1989 )

ERICKSON, Justice,

specially concurring:

The City of Broomfield filed an application for change of water rights and sought to acquire the right to purchase three “inches” of water in a carrier ditch that is commonly identified as the Church Ditch. The controversy in this case arises out of the acquisition of forfeited water rights by Broomfield and Northglenn, who own the Church Ditch Company. The water court granted the requested change of use and upheld the acquisition of the forfeited rights by Broomfield.

No question exists regarding the right of the Church Ditch Company to declare forfeiture of the water rights in question. The sole issue before us is whether Broom-field or Northglenn, as owners of the Church Ditch, could acquire the forfeited water rights without offering the rights to other water contract users of the ditch. I agree with the water judge and his conclusion that:

“[A carrier ditch] occupies the position of a quasi-public servant, subject to regulation of its rates, and charged with a public duty or trust, [citation omitted] and is under enforceable obligation to continue the annual delivery of water to its land-owner contract holders so long as they pay the regularly fixed carrying charges and comply with the reasonable rules and regulations of the carrier company. [citation omitted] Being impressed with a public duty, such a carrier is perforce obliged to exercise utmost care to see to it that all of its contract holders are accorded fair and equal treatment and to avoid all discrimination between them.”

Wanamaker Ditch v. Crane, 132 Colo. 366, 288 P.2d 339 (1955).

Although the obligation to avoid discrimination among contract holders is undoubtedly a feature of Colorado law it applies only to the extent of the existing contracts. It does not extend to the issuance of new contracts.

“The legal title to the decreed appropriation from the natural stream, however, belongs to the carrier which has a duty to protect it for the benefit of the consumers under the ditch. The carrier also has sufficient interest in the water right that unused rights of the consumer do not cease to exist but may be held by the carrier for sale to other consumers and thus no part of the full decreed appropriation to the carrier ditch need be abandoned to the source stream.”

Denver v. Miller, 149 Colo. 96, 368 P.2d 982 (1962).

The right of the carrier to sell unused or forfeited rights is recognized. No indication is made that unused or forfeited rights revert to the other consumers on a pro rata or a “first-come-first-served” basis, as is essentially the contention of Westminster and Thornton.

It is undisputed that Broomfield and Northglenn had suitable beneficial uses for the forfeited rights. There was no impropriety in their assignment of those rights to themselves. The proprietor of a carriage ditch may apply a portion of the water of that ditch to a beneficial use, and when this occurs the contract right ripens into a full water right. Denver v. Miller, supra.

There is no reason why these three inches of Church ditch water may not be included in the change of use ordered in this case.

Therefore, I specially concur in the opinion of the court.