DocketNumber: No. 14,445.
Citation Numbers: 102 P.2d 909, 106 Colo. 128
Judges: MR. JUSTICE BAKKE delivered the opinion of the court.
Filed Date: 4/15/1940
Status: Precedential
Modified Date: 1/12/2023
THIS case was before us on a former occasion. TrincheraIrr. Dist. v. Trinchera Ranch Co.,
A review of these Trinchera cases (the parties in each instance being the same) reported in
Comment was made upon this physical situation in the case of Monte Vista Canal Co. v. Centennial IrrigatingDitch Co.,
In the case at bar this theory is applicable, of course, only to the "bowl," of defendants in error, drained by Trinchera creek.
It is undisputed that the only purpose of the petition for adjudication of the water rights here involved is to have the court give legal approval of the use of water as practiced by defendants in error for nineteen years. We deem it unnecessary to recite the decrees, for the reason that they are not challenged if the theory upon which they are based is not erroneous.
While plaintiff in error submits thirty-three assignments, it summarizes its entire position in the query, "Will the Court affirm a decree which awards one cubic foot of water for 30 (26 under the present decree) acres of land when all the evidence adduced on the question shows that one cubic foot of water in that locality is sufficient for the irrigation of eighty acres of land?" This query is based upon the statement in our former opinion (Trinchera Irr. Dist. v. Trinchera Ranch Co., 100 Colo., p. 184) that "one cubic foot per second is required ordinarily for every 80 acres of hay land, though other crops would require a little more water." However, it must be noted that the quantity mentioned in this statement, one cubic foot per second for every 80 acres of hay land, has reference to what the trial court and defendants in error denominate as the ideal duty of the water of Trinchera Creek under the 1915 decree (the original adjudication in district No. 35, which is the district involved) based on the normal flow of the stream, and does not include the run-off water in the spring flood season, which is the water involved here, the testimony being that this water is only present not to exceed thirty days in a year, and is used to irrigate land not covered by the earlier decrees. *Page 132
Among the deficiencies in the evidence and decree to which reference is made in our former opinion (
[1] While the new decree does not supply all of these deficiencies with a nicety which is desirable, we conclude that it is sufficient, particularly in view of the fact that the only final complaint is as to the new finding on the duty of the water. This finding, as we see it, simply gives recognition in this case to the theory recognized in the quotation from the Monte Vista Canal Company case, supra.
No testimony was introduced by plaintiff in error and, as disclosing absence of prejudicial effect, the present decree provides, inter alia: "Seventh: This decree shall not be taken, deemed or held as establishing, decreeing of fixing any priorities of right to the use of water in Water District Number Thirty-five, which will conflict with or in any manner affect or disturb the various rights, claims and priorities heretofore adjudicated in and by the decrees heretofore entered by this Court in the Matter of Adjudication of Priorities, and Right to the Use of Water in Water District Number Thirty-five, or adverse or contrary to the effect of said decrees, and all priorities herein decreed shall be junior and subsequent in point of time to all priorities and rights to the use of water heretofore adjudicated and decreed, and all priorities herein adjudicated, decreed and established can, and may, go back no further than a date subsequent to the date of the latest appropriation decreed in any of the decrees heretofore entered in this cause."
Our former opinion mentions the problem of the Antelope ditch. The new decree eliminates it entirely *Page 133 and makes no adjudication as to it, so no further difficulty appears in connection therewith.
[2] The argument that the 1915 decree was res judicata of the question involved here is without merit, because therein this new duty of the water was not definitely fixed. The same may be said concerning the argument that our former decision is stare decisis of the law involved. The effect of that opinion was to withhold final pronouncement until there was a compliance with the conditions therein laid down. We now conclude that these have been met in conformity therewith.
[3] We agree with the statement of plaintiff in error that there is no statute fixing a minimum or maximum duty of water, and that "the question has been left to the determination of the courts, and each court has considered the question with reference to the territory to be irrigated, climatic conditions, soil conditions * * *." That is all that was considered in this case, and no abuse of discretion appearing, the decree should be permitted to stand.
[4] As we said in one of the earlier of these cases, "as their rights were not interferred with, they had no occasion to object." Trinchera Ranch Co. v. TrincheraIrrigation Dist.,
Judgment affirmed.
MR. JUSTICE FRANCIS E. BOUCK dissents. *Page 134