Greeley & Loveland Irrigation Co. v. Farmers Pawnee Ditch Co.

Mr. Justice Gabbert delivered the opinion of the court: On the merits, the question involved is whether the Greeley and Loveland Irrigation Company wrongfully impounded and held in its reservoir water which should have been permitted to flow down the stream, from which it was diverted, to supply the priorities of defendant in error, The latter brought an action against the irrigation company and certain water officials, the purpose of which was to compel the return of the stored water to the stream, and to restrain the commission of such alleged wrongful acts in the future. The judgment was in favor of plaintiff, and defendants have brought the case here for review on error. Briefly, the facts presenting the merits of the controversy are as follows: The irrigation system of the defendant company is located on the-Big Thompson, a tributary of the South Platte, in Water District No. 4. The plaintiff owns an irrigation system on the South Platte in Water District No. 64. Each has decreed priorities for direct irrigation. The headgate of the plaintiff company is about 175 miles below the headgate of the defendant company. On the afternoon of June 21, 1911, a heavy rain storm occurred on the Big Thompson, above the intake of the canal of the defendant company, which caused a great volume of water to flow down the stream. The defendant company has a decreed priority for direct irrigation for 297 feet, as of date April 1, 1881. Previous to the storm it .had been receiving 133 feet of water, which it was then utilizing by checks in its ditch, so as to cause the water to flow in the various laterals supplied through that channel. This volume of water represented priorities which were in advance of the one dated April 1, 1881. To turn the appropriation of 297 feet into the ditch, with the checks set, would [464] have caused it to break and overflow. Under these conditions, with the consent of the Water Commissioner in Water District No. 4, which embraces the Big Thompson, the defendant company diverted and stored in its reservoir some ten or twelve million cubic feet of water from the flood waters caused by the storm to which we have referred. The object of storing this water was to provide a supply for use later in the season. At this time the defendant company did not have a decree for storage purposes. The plaintiff has a decreed priority for direct irrigation for 150 feet per second, as of date June 22,1882, and diverts the water to which it is thus entitled in Water District No. 64. It also has other priorities. At the time of the storm and during the period the defendant company was storing the flood water, there was not sufficient flowing in the stream at the headgate of plaintiff’s ditch to supply its decreed priorities which were then needed by its consumers. In this jurisdiction priority of appropriation for a beneficial use has always been recognized as the foundation upon which water rights depend. When the diversion of the flood waters occurred, both corporate parties were entitled to divert water from the stream for direct irrigation, and for ■ immediate application to lands, to the extent their priorities were needed, and could be lawfully supplied; but there was not sufficient water flowing at the headgate of plaintiff to supply those it had been awarded, and were then required to irrigate lands under its system. The right of defendant company was senior to plaintiff, but it did not have any right to divert water for storage to the detriment of plaintiff. In other words, its right was limited to a diversion of water for direct irrigation, to be at once applied to lands under its system, consequently it was without right to divert and store such waters, when by so doing the plaintiff company [465] was deprived of water to which it was entitled for direct irrigation. For does the fact that the physical condition of the ditch of the defendant company at the time of the flood was snch that the volume of its priority could not be utilized by turning it into that channel change the situation. The right of the defendant to store water must be measured by its-right to divert water for this purpose at the time it did, and not by the physical condition of its ditch. On behalf of the defendant company it is contended that the complaint fails to state a cause of action, because it is not alleged that had the flood water not been intercepted by storage it would have reached the head-gate of the plaintiff. It is also claimed the testimony fails to establish that had this water not been diverted it would have been available for the use of plaintiff, and hence the judgment is contrary to the law and the evidence. These propositions can be considered together. The water- involved did not belong in specie to the plaintiff, but when it appears as it does, from the allegations of the complaint and proof, that it has a decreed priority to the use of water from the stream, the flow of which would'presumably be augmented by the flood water diverted, and at the time of such diversion was in need of water to supply its priorities, it will be presumed that the volume in the stream was depleted to its injury as the result of the wrongful diversion by the defendant company. So that instead of plaintiff being required to allege and and prove such facts it was incumbent upon the defendant company to allege and prove them in order to excuse its wrongful act.—Peterson v. Payne, 43 Colo. 184, 95 Pac. 301; Alamosa Creek C. Co. v. Nelson, 42 Colo. 140, 148, 93 Pac. 1112. In this connection we notice the claim on the part of defendant company that the testimony established that [466] the water diverted could not have reached the headgate of the plaintiff. The defendant company did not interpose any defense presenting this issue. The defendants filed a motion to change the place of trial to the. District Court of Larimer County, based upon the ground that the action was in tort, which according to the allegations of the complaint was committed in that county. The motion was overruled and error is assigned on this ruling. After the motion was denied the defendants answered and went to trial on the merits. This precludes them from questioning the order of the trial court in denying the motion to change the place of trial.—O’Rourke v. O’Rourke, ante, 300, 144 Pac. 890. The remaining question urged on behalf of the defendant is not covered by any assignment of error. The judgment of the District Court is affirmed. Judgment affirmed. Decision en banc. Mr, Justice IJill concurs in the conclusion. ■Mr. Justice White, and Mr. Justice Garbigues dissent.