Colorado Milling & Elevator Co. v. Larimer & Weld Irrigation Co.

Mr. Justice Gabbert delivered the opinion of the court. The conclusion of the trial court that plaintiff was estopped from averring or proving a state of facts contrary to the terms and conditions of the decree entered in the adjudication proceedings, may be correct in the abstract, but it is not necessary to determine that proposition, because, under the issues and the evidence it was not the controlling one in this case, or the one upon which the rights of the parties alone depended. Conceding that this decree was res judicata between the parties, it was only so to the extent of the matters thereby adjudicated, namely, the right of the irrigation company to divert a given volume of water, not in excess of its needs, for the purpose of irrigation, in advance of the right of plaintiff to enjoy the volume of its appropriation for power and domestic purposes; but these were not the only rights involved. At certain seasons of the year the irrigation company diverted water for storage. This diversion so reduced the volume left in the stream, there was not sufficient remaining to supply that which plaintiff claims it has the right to ■divert. The appropriation of water for a specific purpose qualifies such appropriation by limiting the volume to the quantity necessary for that purpose. Ortman v. Dixon, 13 Cal. 33; Kinney on Irrigation, § 231; McHenry v. Smith,, 21 Cal. 374. An appropriator of water from a stream already partly appropriated acquires a right to-the surplus or residuum he appropriates, and those in whom prior rights in ■the same stream are vested, cannot extend or enlarge their [50] nse of water to liis prejudice, but are limited to their rights as they existed when he acquired his (Proctor v. Jennings, 6 Nev. 83; Cache la Poudre R. Co. v. Water Supply & Storage Co., 25 Colo. 161; Kinney on Irrigation, §§230, 232; The Nev. Water Co. v. Powell, 34 Cal. 109), because in such case, each with respect to his particular appropriation is-prior hi time and exclusive in right. Nev. Water Co. v. Powell, supra. Decrees in adjudication proceedings, under the statute, not only limit the use of water by those in whose favor they are rendered, to the quantity decreed, but also to the volume necessary for the purpose for which it is appropriated. New Mercer Ditch Co. v. Armstrong, 21 Colo. 357. The right of diversion by the irrigation company for storage purposes did not unqualifiedly attach under the decree by virtue of which it claimed this right. This decree did not contemplate or provide for such a use. By such diversion the irrigation company, in effect, sought to make another appropriation, for another purpose; or, if not another appropriation, another use which may have resulted in the diversion of water in excess of that awarded its ditch, or at a time when the water thus taken was not needed for the use for which it was originally appropriated; and although it could change its use from that for which it was originally appropriated, and for which it was decreed, to another, it could not exercise this right in such manner as to infringe on the rights of the plaintiff, so that whatever might be the effect of the adjudication proceedings, in so far as the rights of the parties are claimed to be settled by that adjudication, there was presented in this case an entirely new question, namely, the right of the irrigation company to divert water for storage, as against the plaintiff for power purposes, which depended for determination upon what the evidence established with reference to the time of the appropriation of each for these respective - purposes, .which was not settled by the statutory adjudication, and which the court should have determined from the evidence bearing on this question, independent of such adjudication, under the rules of law governing [51] appropriations; or, if tlie evidence established that no appropriation had been made by the irrigation company for the express purpose of storage, which antedated the priority of plaintiff, then, although the right of the irrigation company under the decree, to divert water for the purpose of irrigation, may have been prior to that of plaintiff, and by that decree its rights for that purpose conclusively settled, it could not thereby exercise that right to the detriment of the latter by an enlarged or another use, measured by either volume or time, which would result in depriving plaintiff of its appropriation under that decree; or, otherwise expressed, if the rights of the parties alone depended upon the decree, then, although the irrigation company could change the use of its appropriation from irrigation to that of storage, it could not divert water for that purpose, which would result in a diversion measured by either volume or time, to the damage of plaintiff, but when the water of the stream was needed by plaintiff to supply its appropriation, would be limited to a diversion for storage at such time and under the same conditions which would permit it to divert for irrigation purposes ; for unless so limited, it could divert for storage to the injury of the priority of plaintiff, which, though junior to that of the irrigation company, is entitled to be protected against any use by the irrigation company which would result in depriving it of the use of water different from that following a diversion by the irrigation company for irrigation purposes. It was error for the trial court to render judgment, as it did, based alone upon the proposition that the rights of the parties were conclusively settled by the adjudication proceedings, without, also, considering and determining the further questions which were involved upon which the rights of the parties depended, either as original appropriators for the respective uses for which they now claim the water, or as dependent upon the decree under the evidence regarding the time, volume and season when the irrigation company diverted for storage purposes. The rights of plaintiff appear to antedate the adoption of [52] the constitution. There is nothing in that instrument which indicates that its provisions shall operate otherwise than prospectively, and the rights of the parties to this action, as measured by different particular uses of water, are not affected by that provision relating to priority, as determined by the character of use. Strickler v. Colo. Springs, 16 Colo. 61. The judgment of the district court, dismissing the action as to the Larimer & Weld Irrigation Company, is reversed, . and the cause remanded for further proceedings in harmony with the views expressed in this opinion. Reversed and remanded.