DocketNumber: No. 12,171.
Judges: Campbell
Filed Date: 3/31/1930
Status: Precedential
Modified Date: 10/19/2024
THE city of Pueblo, and two of its municipal agencies, filed two separate petitions in the district court of Fremont county seeking thereby judicial decrees permitting a change of the points of diversion of certain waters of the Arkansas river which the city had acquired, and to which there had been decreed in the general adjudication proceeding in the water district to the carrying ditches of the grantors of the city priorities of right to the use of such water for irrigating their agricultural lands.
Before the designated hearing of these petitions about forty-five appropriators and users of water from the river and its tributaries in water districts 11, 12 and 13, and whose appropriators are junior in point of time to those of the petitioners, acting for themselves and other junior appropriators similarly situated, appeared and filed their written objections and protests to the requested changes, upon the ground that, if allowed, necessarily it would be injurious to their vested rights as such junior appropriators. Upon the issues thus joined, the court found for the petitioners in the main and entered permissive decrees which are attacked on this review.
All priority rights in question were originally for irrigating agricultural lands. If the decree stands, the city may use the water for domestic and other municipal purposes continuously, day and night, throughout the year. Our statute conferring upon district courts power to determine the relative rights of appropriators of the waters of our natural streams for irrigation purposes, requires that the decree awarding the same be made to *Page 491 the ditches themselves and not to their respective owners. The five ditches in question whose priorities were originally awarded and used for irrigating lands may, for convenience in discussion, be put into two groups. Group 1 includes the Hannenkratt ditch, the Porter ditch, and the Lester and Atterbury ditch. Group 2 comprises the Orange White ditch and the Banks No. 1 ditch.
[1] By repeated decisions of this court, and our former Court of Appeals, an appropriator of water from a natural stream in this state for the irrigation of agricultural lands, who seeks to change the point of diversion of the same, assumes, and must sustain, the burden of showing that the vested rights of other appropriators, particularly of junior appropriators, are not infringed. Some of our cases so deciding are Bates v. Hall,
In Farmers' Co. v. Wolf,
See also Trinchera Ranch Co. v. Irrigation District,
[2] This declaration of Judge King is what, in other decisions, we have declared, and what practical irrigators regard as a true statement. This record discloses what is a matter of common knowledge in this state, that the Arkansas river waters are much over-appropriated. The decreed priorities call for a volume of water far beyond the average constant capacity of the river to supply. It is proposed to change the point of diversion of a large quantity of water, about seven cubic feet per second of time, from the original headgates to a point about forty-five miles down the river.
[3] It was the duty of the trial court, as it is our duty, to exercise the utmost care and scrutiny to guard against injury to junior appropriators who, in this case, have filed protest against the proposed change. A careful examination of the record, assisted by the able briefs of counsel convince us that the trial court failed in this requirement, as we proceed now to demonstrate.
[4] These five ditches are all in the same locality, near the town of Florence. Their headgates are practically equally distant from the ditches and reservoirs of the city of Pueblo, into which it proposes to divert the waters of its newly acquired priorities. The junior appropriators strenuously object to the changes. Some of the headgates of the ditches of these junior appropriators in the Arkansas river and its tributaries are below, and some above, the original headgates of the recently acquired ditches of the city. The lands that these five ditches supply with water are of the same character as to soil. They are close to the river and it seems to be agreed by the parties that the quantity of water necessary for the proper irrigation is substantially the same per acre under each ditch. *Page 493
The trial court in its findings and decree permitted the change in points of diversion of the three ditches in group 1 for the full amount of their decreed priorities, and permitted a change as to the two ditches in group 2 of only one-fourth of the capacity of their decreed priorities. We have not been cited to any evidence in this record, and we are unable to discover any, that warrants the distinction made by the trial court as between the ditches of these two groups. Counsel for defendants, however, call our attention to the language of the respective decrees that contain the awards to the ditches of group 1, as contrasted to the decrees of the ditches in group 2, and they say that it was the result of the court's misapprehension as to the force and effect of the decrees that accounts for the unwarranted distinction in question as made by the trial court. In the adjudicating decree to each and all of group 1 ditches, after the designation of the lands, and the acreage for the irrigation of which the priority awards were made, and the quantity of water specified, are these words: "Continuous flow during the irrigating season." In the adjudicating decree to the two ditches in group 2, the language as to description of the land, acreage and quantity of water is the same as in group 1. but the continuous flow provision is entirely absent therefrom. Counsel for the city do not enlighten us as to what controlled the trial court in construing the meaning of the continuous flow clause as to the ditches in group 1, or why it was inserted in that group and omitted in the decree to the ditches in group 2. Neither have we found anything in this record that justifies the distinction made or that warrants the conclusion of the trial court. Yet that tribunal must have found, and so held, that this continuous flow provision in the decrees of group 1 ditches vested in the owners of the priority an absolute right to flow, at all times and continuously during the irrigating season, and regardless of the need of the lands which it was proposed to irrigate therewith, the entire decreed quantity of water as *Page 494 against the rights of all junior appropriators including these protestants, and that the city in acquiring these priorities might so use the waters thereof in supplying its inhabitants with water as against the rights of all junior appropriators, including these protestants. This must have been the theory of the trial court, and it is the theory of the city, which asks us now to sanction the same by approving the decree which, if good at all, can be upheld only by sanctioning the construction of the effect of the language of the decree erroneously adopted below. In effect this permissive decree, if upheld, authorizes the city to change the points of diversion of group 1 ditches to points 26 miles down the river and there divert the entire decreed priorities into its reservoirs and water mains to their full capacity during the irrigating season and continuously, day and night. Such a conclusion of the trial court could be reached, if at all, not from the evidence concerning the injury to junior appropriators, but only by a construction of the quoted language of the original adjudicating decree as to a continuous flow.
That the findings and conclusions were so arrived at appears beyond question from the following circumstances. There is no evidence in this record that we have discovered, and counsel for the city have not assumed to point it out, which justifies the trial court's conclusion that the continuous flow provision permitted the irrigator to flow continuously, during the irrigation season, the full quantity of water awarded regardless of the necessity for using the same.
[5] Read into every decree, regardless of its language, is the unquestioned law of this state that an owner of a water priority may use the quantity awarded only when good irrigation usage justifies it, and when the needs of the land are satisfied, the water must no longer be used by him, but must be permitted to flow uninterruptedly in the natural channel of the stream. New MercerDitch Company v. Armstrong,
In fine, the record sufficiently discloses that the trial court construed the continuous flow provision of the original decree to these three ditches as giving to those in group 1 and the owners thereof the absolute right to flow the decreed quantity continuously throughout the irrigation season, day and night. The record also shows that the trial court's conclusion and inference therefrom that changes of point of diversion thereof into the ditches and reservoirs of Pueblo could not and would not result in any enlarged use either in volume or time because, in its view, a continuous flow, day and night, by the city hereafter could not and would not exceed the continuous flow of the same volume that the farmers enjoyed at the original points of diversion.
We cannot sustain such reasoning or such conclusion. The evidence produced by the city itself does not justify the trial court in its findings or its decree thereon. It is more than apparent that the court's findings and decree would not have been made had it not been controlled by its erroneous conclusion as to the force and effect of the continuous flow clause of the adjudicating decree to the three ditches in group 1. Just how or why the particular water decreed to the Orange White ditch, if not diverted at the original headgate, but left to flow uninterruptedly down the river, a distance of 26 miles to the new headgates of the city would arrive there diminished in quantity by three-fourths of its volume while an equal volume of water of the Hannenkratt ditch flowing at the same time and in the same channel would reach the lower headgates of the city undiminished in quantity has not been explained. Certainly we may not assume, and the trial court below should not have assumed, without convincing evidence, that the waters of the Hannenkratt *Page 497 ditch proper are endowed with some unusual celerity or rapidity of flow that is lacking in the flow of the waters decreed to the Orange White ditch. It is unreasonable to say that of the waters adjudicated to these two ditches that what is decreed to one ditch would, and the waters decreed to another would not, work injury to subsequent appropriators when diverted and carried in the same stream at the same time to a new headgate below.
It would serve no useful purpose merely to set aside this decree and remand the cause for another hearing below, and this is so because the theory upon which the city has predicated its right to a decree changing the points of diversion of its newly acquired ditches is radically wrong, and no amendment could properly be made to the petitions without in substance changing the grounds of its complaint or cause of action. The decree therefore should be set aside and the cause remanded with instructions to the trial court to vacate the same and dismiss the petitions at the cost of the petitioners.
Decree reversed.
MR. JUSTICE ALTER not participating. *Page 498
Trinchera Ranch Co. v. Trinchera Irrigation District ( 1928 )
Flasche v. Westcolo Co. ( 1944 )
Farmers Reservoir & Irrigation Co. v. City of Golden ( 2002 )
City of Westminster v. Church ( 1968 )
In Re the Water Rights of Steffens ( 1988 )
Shawcroft v. TERRACE IRRIGATION COMPANY ( 1958 )
Enlarged Southside Irrigation Ditch Co. v. John's Flood ... ( 1947 )