Fort Lyon Canal Co. v. Arkansas Valley Sugar Beet & Irrigated Land Co.

39 Colo. 332

Opinions

Mr. Justice Gabbert

delivered the opinion of the court:

Can the relative rights of canals drawing water from the same stream for the purposes of irrigation, where their respective priorities have been regularly determined and awarded by adjudication proceedings in different water districts, be determined as between each other in an independent action after the lapse of four years from the date the respective adjudication decrees fixing such priorities were rendered? is the question presented for our determination in this case.

Plaintiff in error, The Fort Lyon Canal Company, owner of the Fort Lyon Canal, in connection with William O’Neill and D. S. Elliott, consumers under this canal, on the 24th day of September, 1901, commenced an action in the district court of Prowers county against The Arkansas Valley Sugar Beet and Irrigated Land Company, owner of the Amity canal, and the superintendent of irrigation for water division No. 2, the purpose of which was to have determined the relative rights of the respective canals to the waters of the Arkansas river. In their complaint the plaintiffs- alleged facts with respect to construction, diversion and appropriation for the purpose of irrigation upon which they claim that the right of the Fort Lyon canal to water from the river is superior to the rights of the Amity canal. The facts presenting the question. under consideration, as disclosed by the pleadings, are substantially as follows:

The headgate of the Fort Lyon canal is in water district No. 17. By statutory proceedings instituted in the district court of -Bent county — the court having jurisdiction to adjudicate rights to waters for irrigation in this district — there was, on the 3rd day of June, 1895, awarded priorities in the waters of the Arkansas river, to which the owner of the Fort Lyon canal has succeeded and is entitled to divert thereby, as f.ollows: 164.64 cubic feet per second of time, of date April 15, 1884, and 597.16 cubic feet as of date March 1, 1887. This canal is now the property of The Fort Lyon Canal Company, one of the plaintiffs in error. The predecessors in interest of The Fort Lyon Canal Company were parties to these adjudication proceedings. The headgate of the Amity canal is in water district No. 67, and on the 1st day of July, 1895, by proceedings duly instituted in the district court of Bent county — the- court having jurisdiction to adjudicate rights to the use of water for irrigation purposes in this district — there was awarded a priority to the flow of the Arkansas river, to which the owner of the Amity canal has succeeded and is entitled to divert through this channel, of 283.5 cubic feet, as of date February 21st, 1887. A predecessor of tbe defendant company was a party to these adjudication proceedings. These decrees have at all times since their entry been enforced by the officials charged with the distribution of water from the Arkansas river in accordance with the priorities awarded. They are in full force and effect, and have never been questioned by any action or proceeding except as they may now be drawn in question by the action instituted by the plaintiffs in error. The plaintiff company did not participate in the proceedings in water district No. 67, neither did the defendant company participate in the proceedings in district No. 17.

Upon the foregoing facts the defendants, among others, interposed a defense to the effect that the several decrees having been in force for more than four years prior to the bringing of the action by plaintiffs, §§ 2434 and 2435, Mills’ Ann. Stats., constitute a bar to showing any priority other than those established by such decrees. The statutes above referred to, -so far as relevant, are as follows:

“2434. Nothing in this act, or in any decree rendered under the provisions thereof, shall prevent any person, association or corporation from bringing and maintaining any suit or action whatsoever, hitherto allowed in any court having jurisdiction to determine any claim of priority of right to water by appropriation thereof, for irrigation or other purposes, at any time within four years after the rendering of a final decree under this act, in the water district in which such rights may be claimed, * * * and the water commissioner of every district where such decree shall have been rendered shall continue to distribute water according to the rights of priority determined by such decree, notwithstanding any suits concerning water rights in such district, until, in. any suit be tween parties, the priorities between them may be otherwise determined, and snch water commissioner have official notice by order of the court or judge determining such priorities, which notice shall be in such form, and so given, as the said judge shall order.”

'“2435. After the lapse of four years from the time of rendering a final decree in any water district, all parties whose interests are thereby affected shall be deemed and held to have acquiesced in the. same, except in case of suits before then brought, and thereafter all persons shall be forever barred from setting up any claim to priority of rights to water for irrigation in such water district adverse or contrary to the effect of such decree.”

The trial court rendered judgment dismissing the complaint, and plaintiffs bring the case here for review on error.

The contention of counsel for plaintiffs is, that inasmuch as the adjudication proceedings were separate and distinct, neither of the parties to this action n.or their predecessors participating in the proceedings in which the rights of the other were determined, that as between each other the respective proceedings are in no manner res judicata, and that the action of plaintiffs may be maintained as though adjudication proceedings had never been had, and the relative rights of the respective canals adjudicated without regard to such proceedings. Counsel for defendants contend that these adjudication proceedings, having' been in all respects regular, are conclusive of the rights of the. plaintiff company after the lapse of the period prescribed by §§ 2434 and 2435, supra. The determination of the case before us, in so far as we have stated what the record discloses, therefore, turns upon a construction of these sections'with respect to imposing a limitation of the time within which actions of the character commenced by plaintiffs may be instituted.

This court has held that the decrees of the several districts taking water from the same general source are prima facie evidence as between such districts.—Independent Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513. We have also decided that it is the duty of the superintendent of irrigation for a water division to distribute the waters of the streams of his division in accordance with the adjudication decrees of the water districts included therein, so that, in effect, the various decrees in a water division are to be treated as one, and water distributed accordingly.— Lower Latham D. Co. v. Louden I. C. Co., 27 Colo. 267. Such was the law at the date when the adjudication proceedings were had and terminated in water districts 17 and 67, and each of the canals involved in this action took their priorities with this provision of the law attached, and under the conditions thereby imposed. When, then, if at all, do the decrees of different districts evidencing the rights of appropriators of water from the same general source, become conclusive as between such appropriators?

The decree when first entered is not final, because we find provisions for re-argument, and review, and for appeals — §§2425, 2427, Mills’ Ann. Stats. Notwithstanding these provisions, however, the decrees are res judicata between those who were parties to, or participated in, the proceedings in which such decrees were rendered, and can only be attacked, reviewed or modified in the manner provided by law.— Louden Canal Co. v. Handy Ditch Co., 22 Colo. 102. Section 2434 does not permit one who was a party to an adjudication proceeding to maintain an independent action against another party to such a proceeding for the purpose of fixing rights different from those determined in the ad judication proceedings, because such proceedings are, as to such parties, res judicata.—Montrose Canal Co. v. Loutzenheiser D. Co., 23 Colo. 233; Handy D. Co. v. South Side D. Co., 26 Colo. 333; Cons. Home Supply D. & R. Co. v. New Loveland and Greeley Irr. & L. Co., 27 Colo. 521; Crippen v. X. Y. Irr. Co., 32 Colo. 447. As this section is not intended for the benefit of parties to adjudication proceedings in the same water district, § 2435 is not, for it but emphasizes the limitation which it is the evident purpose of these sections to impose. Ample provision is made for the protection of the rights of parties to proceedings in the same district, but none of the provisions relating to this class relate to appropriates in different districts, as between each other. As to these, it was necessary for the orderly distribution of water, that the decrees in the different districts should be prima facie binding, but in order to protect their rights, as between each other, a period was given within which actions might be instituted to settle and adjust such rights. For this purpose, §§ 2434 and 2435 were enacted. Thereby opportunity was afforded to adjust such rights'by an independent action, but, wisely, the period within which such an action could be commenced was prescribed; otherwise, rights as between appropriates of water in different districts where rights have been adjudicated, under the statutory proceedings, would remain unsettled indefinitely.

The state had the power to provide reasonable means for determining rights to the use'of water, and to require all persons claiming such rights to present them in a prescribed manner, within a prescribed period, and to provide that all such claims not thus presented should be barred—Barker v. Harvey, 181 U. S. 481. Parties to adjudication proceedings in one district are bound to take notice of the rights adjudicated in other districts whereby rights are fixed in the same stream, although they are not adjudicated in the same action and in a common forum. They are bound to know that water from such a stream will be distributed according to the several decrees fixing rights therein, in the same manner with respect to priority and volume as though such several decrees were, in fact, one, because the law provides that the water shall be so distributed.— Lower Latham D. Co. v. Louden I. C. Co., supra. For the statutory period the priorities of such districts are, as between the respective appropriators therein, but prima facie evidence of the rights of such appropriators; but after the lapse of four years from the date a decree is rendered fixing-such priorities, unless suit is theretofore brought, they become conclusive, because after that date, except in case of suits before then brought, “all persons shall be forever barred from setting up any claim to priority of rights to water for irrigation in such water district adverse or contrary to the effect of such decree.” True, unless an independent action is commenced and prosecuted to judgment, the rights of appropriators in different districts will not be settled in a common forum, in an action wherein this class of appropriators were impleaded, but such ■ appropriators have the opportunity to bring such an action, and if they do not do so within the time prescribed, by law, they must accept the consequences.

Under the facts of this case, we are of the opinion that the action instituted by plaintiffs was barred by virtue of the provisions of the sections of the statutes interposed by the defendants. It is urged by counsel for plaintiff's that these sections only apply to rights within a water district. The effect of the previous decisions of this court is adverse to this contention ; that is to say, it has been repeatedly decided that these sections do not apply to parties to the same adjudication proceedings, as "between each other, hut to those who were not such parties. The latter is the status of the parties to this action. While it is recognized that an action of the character commenced by plaintiffs may be maintained, if not barred by the provisions of the statute to which we have referred, we do not wish to be understood as intimating the extent to which parties to such an action might be permitted to adjust their rights, without regard to their respective priorities established by statutory proceedings.

The judgment of the district court ‘will stand affirmed. -Affirmed.

Chief Justice Steele and Mr. Justice Campbell concur.