Antero & Lost Park Reservoir Co. v. Ohler

176 P. 286, 65 Colo. 161, 1917 Colo. LEXIS 401

• Court: Supreme Court of Colorado
• Decided: March 5, 1917
• Docket: No. 8534
• Status: Published

Opinions

Opinion by

Mr. Justice Teller.

Plaintiff in error is the owner of the Antero Reservoir, located on the South Fork of the South Platte River, and the Lost Park Reservoir, located on Goose Creek, or Lost Park Creek, and duly filed its statement of claim in a proceeding to adjudicate water rights in Water District No. 23.

For the first named reservoir a priority was claimed to the extent of two billion, five hundred and fifty-two million, six hundred and fifty-four thousand, nine hundred and eighty-six cubic feet, as of November 15, 1888, and one billion, one hundred and eighty-six million, five hundred and thirty-five thousand, eight hundred and nineteen cubic feet, by way of an enlargement, as of November, 1907; and for the other reservoir a priority was claimed to the extent of two billion cubic feet, as of January 1, 1891.

The referee found the claimant entitled to an appropriation, for the original construction, to the amount claimed, as of March 8, 1891, and, by way of enlargement, one billion, one hundred and seventy-four million, five hundred and two thousand, one hundred and eighty-two cubic feet, as of November 1, 1907, provided the claimant proceed with due diligence to complete the reservoir to the above named capacity.

He found that the Lost Park Reservoir was entitled to an appropriation of two billion cubic feet, as claimed, as of January 1, 1891.

Exceptions having been filed to the referee’s report, the court made new findings, and gave to the Antero Reservoir an appropriation of three billion, seven hundred and twenty-seven million, one hundred and fifty-seven thousand, one hundred and sixty-eight cubic feet — its full capacity— as of October 8th, 1907. It gave to Lpst Park Reservoir an appropriation of two billion cubic feet, as of date of October 3, 1907.

The cause is now here for review on error.

The substance of the severál assignments of error is that the court erred in not adopting the findings of the referee, instead of making new findings.

The record contains a large quantity of evidence as to the beginning of work on the reservoir, and the prosecution of it. From this it appears that from 1891 to June, 1894, there was some actual construction work carried on; that later, for several years, the only work done was by way of keeping up the fences and buildings on the property, and that from 1898 to the year 1907, when claimant purchased the property, it was rented, and no work done by way of construction. There is ample evidence to support the court’s finding that the work had not been carried on with diligence from 1894 to 1907, and that the claimant had no right to an appropriation dated prior to 1907. Under these circumstances, to set aside the court’s findings would be a violation of a well settled rule, and without justification.

The former opinion is withdrawn and the judgment affirmed.

Judgment affirmed.

Mr. Justice Garrigues and Mr. Justice Scott dissent.