Seven Lakes Reservoir Co. v. New Loveland & Greeley Irrigation & Land Co.

Mr. Justice Gabbeet delivered the opinion of the court: [385] The particular question presented by this appeal bas not been determined in the concrete by any previous decision of this court; but it is by no means a new one, because it merely involves the application of principles which have been announced in numerous cases. A priority to the use of water is a property right which is the subject of purchase and sale, and its character and method of use may be changed, provided such change does not injuriously affect the rights of others. — Fuller v. Swan River P. M. Co., 12 Colo. 12; Strickler v. Colo. Springs, 16 Colo. 61; Cache la Poudre I. Co. v. Larimer & Weld R. Co., 25 Colo. 144. Appellant owns certain rights to the use of water which, prior to its purchase, had been directly applied to the irrigation of lands. Instead of continuing to so use this water, it has ceased its direct application during the period it was theretofore applied, and- stores the water, which it would have the right to thus apply, for use later in the same season. This change is in no manner detrimental to the rights of the appellee. It is not thereby deprived of any water which it would have the right to divert and apply to lands during the irrigating season, as against the rights of the appellant. By the change no greater burden is imposed upon the common source of supply of the respective ditches. It must, therefore, logically follow, that the appellant is entitled to divert the water represented by its purchase, and store for use later in irrigating crops, measured by volume and time, which* it would have the right to apply directly to lands for purposes of irrigation at the time of such diversion. The case presented is not one, as seems to have been the view of the trial court, where appellant seeks to convert a junior reservoir right to a senior [386] appropriation for storage, but merely involves the right of appellant to utilize a priority for irrigation by using it at a later period. It appears from the record that the stockholders of appellant, instead of planting crops which require irrigation during the early part of the season, utilize their lands by growing crops which do not require irrigation until about August, when the direct supply through the ditches is not sufficient to furnish the volume of water necessary to irrigate such crops. And so, instead of applying the water to which they are entitled for direct irrigation in the early part of the season, they store this water for use later to mature crops, like beets and potatoes, which do not require irrigation until about the month of August. It would be unfortunate, indeed, if the law were such that it could not be adapted to changed conditions resulting from the character of crops grown by those engaged in agricultural pursuits. If water for direct irrigation can only be utilized for that purpose, the result would be to retard agricultural progress and limit the growth of agricultural products to those which can be matured by means of direct irrigation early in the season. If the judgment of the trial court should be sustained ujoon the theory that one owning a priority for direct irrigation may not cease to utilize it for that purpose upon crops in May, June and July, and store it for use during the same season thereafter, the result would be to take from the owner of such a priority his rights and confer them upon others growing crops of a different nature. Such a rule would make the right to the use of water dependent upon the character of crops grown instead of upon the right to utilize it in any manner which does hot injuriously affect the vested rights of others. In principle the case is no different from that of Strickler v. Colorado Springs, supra, wherein the [387] right to change the use of water from agricultural to domestic purposes was recognized. If the right to change from agricultural to domestic, and from mining to agricultural, uses, and vice versa, is legal, certainly no good reason can he advanced why the change from one agricultural use to another may not he allowed. The trial court seems in a measure to have been guided in rendering the judgment it did by § 2270, Mills’ Ann. Stats., which provides that persons desiring to divert water for storage may take “from any of the natural streams of the state and store away any unappropriated water not needed for immediate use for domestic or irrigating purposes.” We do not think this section is involved, because appellant is not asserting any right to the water in ■controversy by virtue of any appropriation for reservoir purposes, but is merely seeking to utilize priorities which it is conceded it is entitled to for direct irrigation purposes by storing the volume to which it is thus entitled for use at a later period. We are of the opinion that the appellant is entitled to so utilize these priorities; that is to say, entitled to store, during the direct irrigation season, the quantity of water, measured by volume and time, which it would be entitled to divert during that period for the purpose of direct irrigation. The judgment of the district court, in so far as it involved the rights of the parties to this appeal to the water represented by the stock purchased by appellant in The Louden Irrigation Canal Company, and the purchase of water in the Barnes ditch, is reversed and the cause remanded, with directions to the trial court to enter a judgment in favor of appellant with respect to these matters in accordance with the views expressed in this opinion. Decision en banc. Judgment reversed. [388] Chief Justice Steele and Mr. Justice Campbell and Mr. Justice Caswell dissent.