Greeley & Loveland Irrigation Co. v. Huppe

Mr. Justice Garrigues delivered the opinion of the court. For convenience we will designate the Greeley & Love-land Irrigation Company plaintiff, and defendants in error defendants. At the first adjudication,' in 1883, in the District Court of Boulder county settling the relative priorities of ditches for irrigation upon the Thompson river — water district No. 4 — decrees were entered awarding the Louden ditch 194 cubic feet, and the Handy ditch 172 cubic feet, of water per second. In 1890 another adjudication was had in this water district by which the priorities of reservoirs for direct storage from the river were settled as follows: Lone Tree reservoir, storage priority No. 1, for 400 million cubic feet; Mariana reservoir, storage priority No. 3, for 200 million cubic feet; Donath Lake reservoir, storage priority No. 2, for 50 million cubic feet. These were the only decreed reservoirs on the river prior to the decree of 1912. — 537 — In 1893 the Greeley & Loveland Irrigation Company constructed, and since has owned and operated, the Loveland & Greeley reservoir, known as Lake Loveland, which, since its construction the various water commissioners have recognized and filled, as having the next storage right, or reservoir priority No. 4, while defendants’ nineteen reservoirs have not been known or considered by the commissioners. No demand was made for water to fill them, and none was delivered from the river by the commissioners for that purpose. A third statutory adjudication, begun in 1904, resulted in a decree in 1912, upon evidence taken by the referee and filed in court, by which priority numbers were given to the divers reservoirs, commencing with the next consecutive number after Donath Lake priority No. 3 of the former decree. By the decree of 1912, defendants’ nineteen reservoirs are given dates, numbers and priorities from the river, • superior to and antedating those allowed plaintiff’s reservoir, so that instead of having the fourth reservoir priority, as theretofore recognized by the water commissioners since its construction, its storage rights were made junior to those of these nineteen reservoirs, which were placed ahead of it in the decree. The present proceeding to review the decree, pertains to these twenty reservoirs, one belonging to plaintiff, and nineteen to the various defendants. The decree awards the Loveland & Greeley reservoir, in round numbers 620 million cubic feet, and for the nineteen reservoirs an amount aggregating in round numbers 370 million cubic feet is allowed. 1. The Louden and Handy ditches are owned and operated by mutual irrigation ditch companies, the water being divided pro rata among the stockholders upon their stock, which stands for and represents the consumers’ interest in the ditch and water. Sixteen of the reservoirs in question lie under the Handy, and three under the Louden, all being filled through laterals from the two ditches, which — 538 — are in charge of and under the control of a superintendent, who distributes the water to the laterals at their headgates. No question of diligence, use or application, date of priority, or amount of appropriation is involved. Neither is the right to store water diverted on the appropriations of the ditches, as an incident to its use thereafter for irrigation, involved. The only question is whether in this adjudication proceeding, defendants are entitled to reservoir decrees for direct storage from the river, for any of these reservoirs. The decree awards them appropriations with priorities ahead of plaintiff’s reservoir, amounting to over 370 million cubic feet, which is an evident injury and damage to plaintiff, unless defendants are entitled to such storage decrees, because the water commissioner is commanded by statute to enforce the decree, in times of scarify, and cannot permit plaintiff to store water in its reservoir, if the decree stands, until after the nineteen reservoirs of defendants have been supplied. The irrigation acts clearly indicate two classes of appropriations for irrigation, one by ditches diverting water directly from the natural stream for immediate use, the other by reservoirs for the storage of water from the stream, to be subsequently used for irrigation. The statute requires that ditch and reservoir decrees shall be separately numbered, and we are of the opinion that the storage of water decreed to a ditch for direct irrigation cannot be made the basis of an independent storage decree under the statute; neither can the storage of the unused portion of water diverted upon the decreed appropriation of a ditch, for direct and immediate irrigation, constitute the basis of such a decree in a statutory adjudication proceeding such as this, to settle the priorities of reservoirs on the stream, for storage. We have examined all the evidence taken and filed in court affecting these reservoirs of defendants, and find it — 539 — insufficient to warrant the action of the lower court in awarding them decrees. Taken in its entirety and carefully considered and analyzed, it discloses no substantial conflict. The nineteen reservoirs are small natural depressions, or basins, lying along or near laterals from these ditches, through which they are filled, and in some instances the laterals pass through the reservoirs. Water was not diverted from the river and stored in any of these reservoirs during the non-irrigating season, or when it was not diverted on the irrigation decree; on the contrary, the storage occurred when the water was available for irrigation, and when the ditches were actually carrying the decreed appropriations turned out to them by the water commissioner, and their consumers were either using, or entitled to use it for immediate irrigation. There is no substantial evidence that the ditches diverted or carried additional or other water for storage, independent of the decreed ditch appropriation. In fact, it is disclosed by the testimony that when the direct irrigation appropriations were being carried by the ditches, there was no additional carrying capacity in the ditch, which could be utilized for the conveyance of storage water. The water commissioner is the stream police-officer, and the control and distribution of water through the river headgates into all ditches and canals both for irrigation and storage, is under his direction and supervision. At the beginning of the season, as soon as water was available for irrigation, usually about April first, these ditches called upon him fo.r their appropriations, which he delivered, and when once in the ditches such water as was not used for immediate irrigation the ditch superintendent permitted to be stored in the reservoirs. Such storage usually occurred between the first of April and October, principally in April, kfay and June, and always after water had been called for and was being diverted on the irrigation ' appropriations of the ditches, and while they were carrying no other water. — 540 — A plausible attempt is made to justify the .decree awarding; storage priorities to these reservoirs, upon the ground that the water impounded was flood, excess, surplus or waste water, which was flowing in the ditches, or at least that it was different and distinct from the decreed irrigation ditch water. This claim is futile. It is immaterial by what term it is designated, the water which was stored was nothing more nor less than the unused portion of water which the ditch had obtained by virtue of its appropriation for direct irrigation; in other words, it was water diverted on the ditch appropriations, that portion being stored which was not needed at times for immediate use and which could be utilized more advantageously at some future time. It is not unusual to find an unused surplus in ditches during the irrigating season. It is a very common occurrence. In their practical operation all irrigating ditches at times carry such water, and should we concede the consumers’ right to temporarily store it, as an incident to future use— a question which we do not here determine — it does not follow that such storage may be made the basis for obtaining storage decrees. A storage right, in this kind of a proceeding, by which a reservoir is filled, to be legally incorporated in a decree, must be established upon a basis wholly independent of, and disconnected from any irrigation right decreed the ditch by means of which the reservoir is filled. The water commisisoners never delivered water for storage in these reservoirs, were not asked to do so, and did not know that water was stored in them, or that storage rights were claimed for them, independent of the ditch appropriations. They filled the' three reservoirs having decrees, in the order of their priorities, and recognized and filled Lake Loveland as the fourth in priority. These four were the only reservoirs on the stream for which any claim was made to the water commissioners for storage rights, or for which a demand for storage water was recognized. If — 541 — any of these other reservoirs ever acquired any storage rights which were independent of, and not based on, the irrigation appropriations of the ditches, it is singular that no demand was ever made upon the water commissioners for storage water to fill such reservoirs. They had control over the water in the river for storage and irrigation purposes, and of the river headgates. They knew the purpose for which water was delivered into the ditches, and it is unbelievable that these ditches were carrying water diverted for direct storage, other than the irrigation appropriations of the ditches, without the knowledge or consent of the commissioners, or without their being called upon to furnish storage water. The evidence fails to disclose that any commissioner ever turned water out of the river, to any of these defendants, for storage in the reservoirs in question, or was requested to do so; on the contrary, it shows the officers turned the water into these ditches only upon their decreed appropriations for direct irrigation. Some four or five of the sixteen reservoir claimants under the Handy have contracts with the ditch company providing for the conveyance to their reservoirs of eight cubic inches of water per second, upon each share of ditch stock owned or controlled by the claimant, so long only as he remains a stockholder, which, it is said, entitles them to independent storage decrees from the river. The reservoirs of these claimants were filled at the same time, in the same manner, from the same source, and with the same character of ditch water, as the other reservoirs. They all stood upon the same basis, so far as their storage rights were concerned, whether they had contracts or not. The water when called for was turned in by the commissioner on the irrigation decrees, not to supply reservoir appropriations as distinguished from ditch decrees, but to supply the appropriation of the ditch for irrigation. In other words the ditch decrees in all instances were used to pro — 542 — cure the delivery of water into the canal, and after it was diverted from the stream, such portion as was not needed and used for immediate irrigation was stored by those fortunate enough to have reservoirs. The storage in all the reservoirs, under both ditches, was of the same general character, and arose from an excess flowing in the ditch, occasioned by the non-use for immediate irrigation of all the water diverted by the ditch upon its decreed appropriation. And again we say that in a statutory reservoir adjudication — as distinguished from an adjudication for irrigation ditches — to settle the relative priorities of reservoirs diverting water from a natural stream for storage, a claimant cannot acquire for a reservoir a storage decree based upon a diversion of a ditch appropriation for irrigation, which is at the time of storage unused fo.r immediate irrigation. Windsor Co. v. Lake Supply Co., 44 Colo. 214-233, 98 Pac. 729; Finley v. Cache la Poudre Co., 44 Colo. 234, 98 Pac. 173. The three reservoirs under the Louden are filled from laterals used by numerous consumers. No water was specifically diverted from the river into, the ditch for the express purpose of directly filling these reservoirs, and independent of the appropriation of the ditch. Water was turned into it by the commissioner, upon its decree, just as early in the spring as it could be obtained, and after being diverted, what was not used for immediate irrigation was turned out of the ditch by the superintendent, into the laterals, and stored in the reservoirs. There was no cross examination of witnesses regarding these three reservoirs, the evidence is very meager and consists principally in generalities as: “during the flood season the reservoirs were filled from the surplus and storage water flowing in the river.” We are not obliged to accept such generalities. This stored water was diverted into and carried through an irrigating ditch having a decreed appropriation for irrigation, during the irrigating — 543 — season, after the water had been called for by the ditch, and while the water commissioner was exercising his authority and control over the waters of the stream, and when the superintendent was in charge of the ditch. Under such circumstances, before these claimants could obtain independent storage decrees for their reservoirs, based upon the' water stored, they had the burden of establishing, as a basis for the decrees, that the water stored was specifically diverted from the river for that express purpose, independent of and separate and distinct from the direct irrigation water, at a time when the ditch was not carrying its decreed appropriation, and was being used in the capacity of a carrier for the specific purpose of filling the reservoirs. The case is reversed and remanded with directions to the lower court to cause so much of the decree to be redrafted or rewritten as may be necessary to eliminate therefrom the nineteen reservoirs of defendants, and award to Lake Loveland reservoir priority No. 4. Reversed and remanded with directions. Chief Justice Gabbert and Mr. Justice Scott concur.