Larimer & Weld Reservoir Co. v. Fort Collins Milling & Elevator Co.

Garrigues, J., after stating the facts as above. — 245 — 1. A motion by a defendant for judgment on the pleadings, where a complaint, answer, and replication are filed, admits the truth of all material allegations well pleaded. Where an issue tendered by the answer is admitted by the replication, the court in order to sustain defendant’s motion for judgment on the pleadings, must find (even if the replication could be established), the law requires that the motion be sustained. The question presented then, is: Admitting its pleadings to be true, can plaintiff maintain the action, and is it entitled to the equitable relief prayed, or any relief? If not, the court was right in sustaining the motion, and the judgment should be affirmed. 2. An analysis of the pleadings, oral arguments and briefs naturally suggests two questions: First, what standing in this suit has the reservoir company in its capacity as a stockholder in the Cache la Poudre Irrigation Company ? Second, what standing has it as owner of the reservoir appropriations, relative to maintaining an equitable action against the milling company? 3. The Cache la Poudre Irrigation Ditch Company has two decreed appropriations for direct irrigation, dating May 1, 1869, and May 1, 1873. By constructing a lateral in 1895 from this ditch to the' reservoir, the ditch has since been used by the reservoir company as an intake, to fill the reservoir- wh’en water was available from the river .for storage. While the pleadings ’allege the' reservoir company owns 13 of 30 shares of the Cache la Poudre Irrigation Ditch Company’s stock, there can be little doubt the action relates to the. storage rights decreed the reservoir and the standing of plaintiff based upon these rights.' Notwithstanding, we will first dispose of the question of plaintiff’s right, as a minority stockholder in the Irrigation Ditch Company, to bring and maintain this action against'the milling company. The decree settled the priority of the ditch owned by the Irrigation Ditch Company, in which plaintiff is a minority stockholder, and the appropriation is for direct irrigation. — 246 — The object of plaintiff is to store water, which is afterwards distributed to its consumers for irrigation. There is no allegation that plaintiff or any of its consumers own land under the irrigation company’s ditch, upon which any water represented by the 13 shares of ditch stock is used for direct irrigation. Plaintiff is not maintaining this action because the water is needed by it for direct irrigation, to preserve the crops of its stockholder consumers. If in fact the reservoir company, as a stockholder, is a consumer of water from the irrigation company’s ditch for direct irrigation, as distinguished from storage, there is no allegation that it needs the water for that purpose, or that it has not at all times received all the water to which it was entitled upon its stock; neither is there any allegation that there is not ample water in the stream at all times during the irrigating season to supply both the irrigation ditch company’s ditch for direct irrigation, and the power canal for power purposes. This branch of the case is not brought by a stockholder t.o protect a water right in a ditch owned by one whose crops under the ditch are perishing; but is an attempt by a minority stockholder in a mutual ditch company to quiet the title to a ditch’s decreed appropriation, and to obtain injunctive relief, upon the ground that the ditch’s priority is being clouded, and the suit is necessary to protect its appropriation. In such an action the company owning the ditch is an indispensable' party. Peck v. Peck, 33 Colo. 421, 80 Pac. 1063. If there were reasons why the ditch company would not or could not bring the action as plaintiff, it should have been made the defendant. It would be an anomalous procedure to permit the reservoir company to establish the seniority of the irrigation ditch company’s ditch for irrigation, against the milling company’s canal for power, in an action to which the irrigation company was not a party. So we will hold that the reservoir company has no standing in this action, based merely upon its ownership of stock in — 247 — the Cache la Poudre Irrigation Ditch Company, and pass to the next question. 4. What standing under the reservoir appropriations has plaintiff in an action to quiet title and for injunction against the power canal ? There is no controversy over the facts. The complaint recites that plaintiff’s reservoir appropriations acquired by original construction and enlargement, are dated respectively 1890 and 1895 and are evidenced by a decree entered in 1909. The answer pleads the diversion and beneficial application of water for power purposes, through the power canal, by which the mill has been operated since 1867, which right was evidenced by the irrigation decree of 1882.- The replication denies the legality or validity of this decree, but admits á diversion of 30 feet as early as 1867 by the power canal, which it says was increased to 60 feet in 1878. This is a recognition that the power canal has diverted and used 60 feet for power purposes at least twelve years prior to the diversion of plaintiff’s first reservoir appropriation. A senior appropriator will not be enjoined in a court of equity by a junior, from diverting water to which it is admitted the senior is lawfully entitled by priority of appropriation. A junior will not be decreed to have the senior right. A senior right cannot be established in plaintiff, as long as the pleadings admit that the mill diversion for power purposes is senior to the reservoir appropriations. It is said plaintiff is not attacking the seniority of the power right, but is simply asking that the official defendants be restrained from recognizing it, and that the milling company be enjoined from diverting the appropriation until the priority of the canal is settled by an adjudication decree. Section 22 of the irrigation act of 1881 provides that until a decree has been obtained in an adjudication as provided by the act, no claim of priority shall be recognized by the water commissioner in distributing water in times of scarcity. Admitting for — 248 — the purpose of the argument, but not deciding, that the court in the general irrigation adjudication of 1882 was without jurisdiction to- enter a decree for power purposes, still we do not think the defendant company should be enjoined from using, or the official defendants restrained in this action from recognizing the right, merely because it is not evidenced by a decree, or because the decree is void. If the irrigation acts of ’79 and ’81 are restricted to irrigation, it does not follow the vested right acquired for power in 1867 could not be recognized by the official defendants until evidenced by a decree. It cannot be said that one diverting and using water for a long period, acquired no vested right because the beneficial use was for power instead of irrigation, for which no decree could be entered under the irrigation acts, nor prior to the act of 1903. If it is true these irrigation acts do not include appropriations for other than irrigation purposes, it cannot be urged that they curtail the exercise of the right for power, merely because it is not evidenced by a decree. But it is said an act was passed in 1903 (S. L. 1903, p. 297) by which the power canal can obtain a decree, and it has not done so. If no decree for the power canal could be obtained under the irrigation acts, then from their passage down to the act of 1903, the water commissioner would not be justified in interfering with the vested power right, merely because it was not evidenced by a decree. By the act of 1903 the power canal might obtain an adjudication decree for power purposes; but it does not follow that the vested right of the canal acquired in 1867 could not be used until it obtained such a decree. The act imposes no such condition, and does not require a refusal to recognize the right on the part of the water commissioner. There is no need in this case of discussing the method of enforcing the recognition of such a right, in the absence of a decree, if it should be denied or not recognized. As long as the commissioner did recognize it, he could not be enjoined from so doing, merely because the power canal had no — 249 — decree, when it was admitted the right was senior to the storage right. The New Cache la Poudre Irrigation Co. v. Arthur Irrigation Co., 37 Colo. 530, is cited as authority that the commissioner can be so enjoined. The case is not in point. There the river commissioner refused to deliver water through a newly located headgate, and it was held he could not be compelled to do so until a decree was obtained as required by statute, changing the point of diversion. Here the water commissioner has always recognized the right, and permitted a diversion of water for power at the point of diversion where the right ripened. The right vested in 1867, since which time there has been no change in the point of diversion, application or usé, and the river commissioner cannot be enjoined from recognizing the right by a reservoir company having a junior priority, merely because the mill power diversion is not evidenced by a decree under the act of 1903. The judgment of the lower court is affirmed. Affirmed. Decision en banc. Scott, J., concurs in the judgment of affirmance, but for the reason only that the complaint does not sufficiently state grounds for equitable relief.