Comstock v. Fort Morgan Reservoir & Irrigation Co.

Gabbert, C. J., delivered the opinion of the court. At the time the actions were commenced, and from that date down to the time they were tried and judgments rendered, there was an abundance of water flowing in the stream to supply all priorities. The effect of the judgments requiring the defendant companies to restore the water impounded in their respective reservoirs to the stream, at such time during the year 1912, under the direction of the State and Division Engineers, as it should be needed and demanded by consumers of water having priorities senior to those of the companies in Water District No. 1, was to bring about a situation, which might result in such water being — 108 — of no benefit to any one. The companies could not use it, the plaintiffs did not need it, and consumers of water in District No. 1, might not require it. Equity will not direct an act to be performed which it is clear is not, or may not be, of any benefit to those invoking its aid. Neither will a court of equity entertain jurisdiction where a plain, adequate and complete remedy can be had at law. The waters of the Platte above the intake of the ditches of plaintiffs may have been depleted to their damage by the diversions into the respective'reservoirs of the defendants, but when the actions were instituted and the judgments rendered, the restoration of the impounded water to the stream would not benefit them, and whether it would be of any benefit in the future was purely problematical. So that in these circumstances, their remedy on this branch of the cases was actions at law for damages resulting from a shortage of water, caused by the diversions into the reservoirs. Such actions would have afforded them a plain, adequate and complete remedy, and hence, precluded them from resorting to equity. The next question to consider is whether the court erred in enjoining the defendant companies and the Water Commissioner in Water District No. 3, from diverting water for storage into the' respective reservoirs of the corporate defendants, when there was not sufficient water flowing in the river, at the points of intake of the ditches of the plaintiffs, to supply their appropriations, senior to those of the defendant companies,, when needed by plaintiffs or some of them for direct irrigation. On this subject it is contended by counsel for defendants, that as the statutes provide for the suspension and removal of water commissioners, and thé appointment of a deputy to assume control of the district of a suspended commissioner, that parties injured cannot resort to equity for injunctive relief against water commissioners who’ fail to obey the law in the distribution of water. The'removal of a water commissioner is not a legal — 109 — remedy. This is a punishment, but does not redress the injury resulting from his failure to distribute water as' the law requires. When water is taken by, or distributed to junior appropriators from time to time, to the injury of those having senior rights, actions at law for damages will not afford complete or adequate relief, for the reason that such course would require a multiplicity of suits to recover damages for each wrongful act, and hence, in such circumstances, resort may be had to equity to prevent them. Rogers v. Nevada Canal Company. Decided at this term: Medano Ditch Company v. Adams, 29 Colo. 317, 68 Pac. 431. The Commissioner of Water District No. 3, did not. obey the orders of the Division Engineer of Irrigation District No. 1, with respect to the distributipn of water, but continued to supply priorities which he had been ordered to close down. His excuse for this action was that there had been a rise in the river, and in his judgment it was not necessary to obey orders of the-Division Engineer, because there was flowing down the stream the volume he was ordered to shut out, notwithstanding the fact that he continued to supply priorities which he was directed to close down. The duty of a water commissioner as originally prescribed was to distribute water in the natural streams of his district, according to priority of right. Section 3432, Reviséd Statutes 1908. Water districts, however, did not in each instance, embrace the entire drainage of a main stream, and naturally when a stream and its tributaries were included in two or more districts, water was not always distributed in accordance with the rights of appropriators in the several districts. To obviate the difficulties resulting from these conditions, irrigation divisions were created, which practically embrace all the drainage of a given stream. Provision was also made for the appointment.of an engineer in each of these divisions,' who was authorized to exercise general control over the water commissioners of the several dis — 110 — tricts, within his division, and distribute water therein- in accordance with the rights of priority of appropriation, as established by the judicial decrees entered in the several districts included in such division. Sections 3335 and 3344, ibid. By section 3350, ibid., it is made the duty of a water commissioner to report to the division engineer of his division, the amount of water necessary to supply ditches, canals and reservoirs in his district; the amount of water actually coming into his district; whether such supply is on the increase or decrease, and what ditches, canals or reservoirs are without their proper supply. The Division Engineer is required to file and preserve these reports, and from them ascertain what ditches, canals and reservoirs are, and what are not, receiving their proper supply of water, and if it appears that in any district in his division, any ditch, canal or reservoir is receiving water, whose priority post-dates that of a ditch, canal or reservoir in another district, as ascertained from his register, he shall at once order such postdated ditch, canal or reservoir shut down, and the water given to the elder ditch, canal or reservoir. “His orders being directed at all times to the enforcement of priority of appropriation, according to his tabulated statement of priorities to the whole division, and without regard to the district within which the ditches, canals and reservoirs may be located.” By sections 3346 and 3349, ibid., provision is made whereby the Division Engineer obtains copies of decrees fixing priorities of water, from which he is required to prepare the register and tabulated statement of priorities to the use of water in his division mentioned in section 3350. By virtue of these provisions we have ruled that the several decrees entered in the water districts embraced in an irrigation division, are to be treated as one, and the water distributed accordingly,, and that it is the duty of the engineer of an irrigation division to make such distribution — 111 — by direction to the water commissioners under his control. Lower Latham Ditch Co. v. Louden Irrigating Canal Company, 27 Colo. 267, 60 Pac. 629, 88 Am. St. 80; McLean v. Farmers’ High Line Canal and Reservoir Company, 44 Colo. 184, 98 Pac. 16; Farmers’ Independent Ditch Company v. Agricultural Ditch Company, 22 Colo. 513, 45 Pac. 444, 55 Am. St. 149. In other words, the purpose of the statutory provisions, to which we have referred, is to have the waters of a stream included in two, or more'water districts so distributed that the appropriations in; the different districts will- receive the water to which they are severally entitled in the order of their priority, as established by the decrees in such districts. To' attain this end, :the Division Engineer is vested with control over the'commissioners in his division. It is his duty to make inter-district distribution of water in his division. This is accomplished by directions to the commissioners under his control, and it follows that when he directs a commissioner in his division to cease supplying water, to priorities post-dating a specified date, it is the duty of the commissioner receiving such order to obey it; otherwise the purpose of the statute would be defeated, and the waters of a stream included in several districts could not be distributed in accordance with the relative rights of the owners of priorities as established by the decrees in such districts. If, after a commissioner receives an order from the Division Engineer, there is a rise in the streams in his district, it is his duty to forthwith report that fact to the latter official, but until the order he has received is modified or changed, he is without authority to disregard it, merely because in his opinion it is not necessary. When, therefore, a commissioner refuses or neglects to'obey the orders of his superior, in circumstances which indicate an intention to continue that course, he may be compelled, in an action by those injured, to distribute the water in his district as directed by the Division Engineer of the irrigation division — 112 — which includes his district. Rogers v. Nevada Canal Company, supra; Kern Reservoir and D. Co. v. Weldon Valley D. Co., 57 Colo. 302, 141 Pac. 1196; Greeley and Loveland I. Co. v. Farmers’ Pawnee D. Co., 58 Colo. 462, 146 Pac. 247. Decided July 6, A. D. 1915. Rehearing denied October 4, A. D. 1915. The next point to determine is whether the facts are such as to justify the injunctive relief granted on the question being considered. The testimony does not establish that either of the defendant companies solicited the commissioner to disobey the orders of the Division Engineer. The commissioner stated that he always asserted the right to act with reference to the condition of the stream in connection with the orders of the Division Engineer, according to his best judgment; that he believed he had this right, but might be mistaken. From this it does not appear that the commissioner wilfully disobeyed any orders of his superior, but acted on a mistaken notion as to his duties. Neither does it appear that either of the companies committed any acts which induced the commissioner to disregard the orders of the Division Engineer. In these circumstances, we think the judgments on the question under consideration are erroneous. The judgment in each case is reversed and the causes remanded with directions to dismiss. Judgments reversed and causes remanded with directions. Scott, J., and Teller, J., concur.