Question Submitted by the United States Court of Claims v. United States

589 P.2d 57, 196 Colo. 539, 1978 Colo. LEXIS 539

• Court: Supreme Court of Colorado
• Decided: December 13, 1978
• Docket: 27714
• Status: Published

Opinions

MR. JUSTICE GROVES

delivered the opinion of the Court.

Upon rehearing, this is our response to a question certified to us by The United States Court of Claims in its case No. 105-75 pursuant to C.A.R. 21.1. The question so certified is:

“Under Colorado law, does the owner of a decreed water right to divert and use water from a natural stream have a right to receive water of such quality and condition, including the silt content thereof, as has historically been received under that right?” (emphasis added)

In the light of the emphasized portion of the question and the posture in which we perceive the question was certified to us, our answer to the question is “No.”

The parties stipulated that the Court of Claims should submit the interrogatory in the above form. It poses a question of rights to the quality and condition of water quite generally. It appears, however, that the issues before the Court of Claims in this connection are limited to silt presence. We, therefore, have distilled the question which we answer in the negative so that it reads as follows:

Under Colorado law, does the owner of a decreed water right to divert and use water from a natural stream have a right to receive the silt content thereof as has historically been received?

With the question, the Court of Claims submitted a statement of facts relating to the case before it, together with copies of pleadings, orders and other background information in the case. At oral argument on rehearing on October 23, 1978, this court permitted the filing of a May 1977 report of Norman K. Whittlesey entitled “Irrigation Development Potential in Colorado.’’¹ In addition, some amplification of the facts is contained in the briefs. As to the facts, we confine ourselves to the statement thereof submitted by the Court of Claims and the Whittlesey report.

The plaintiffs in the proceeding commenced in the Court of Claims are The Bessemer Irrigating Ditch Company (a mutual ditch company here referred to as the Bessemer Co.) and its 956 stockholders. The suit was filed pursuant to 28 U.S.C. § 1491, claiming entitlement to an award of just compensation from the United States for the taking of the alleged property right of the plaintiffs to turbid, silt-laden water and the substitution of clear water therefor.

The Bessemer Co. operates the Bessemer Ditch. Prior to the construction of the Pueblo Reservoir, the headgate of the ditch was on the Arkansas River a few miles west of Pueblo, Colorado. The ditch proceeds in a generally easterly direction through Pueblo and a suburban area east of Pueblo, and reaches into an agricultural area. The main Bessemer Ditch is now about 35 miles long. In addition, there are 174 miles of laterals.

The ditch has decreed water rights totalling 392 cubic feet per second of time (c.f.s.), 70 of which have priority dates earlier than 1882. The remaining 322 c.f.s. have an 1887 priority date. About 400 stockholders, holding less than 3% of the stock, use the water for the irrigation of lawns, trees, shrubs and gardens in connection with their homes located in the Pueblo area. About 12% of the stock is used in the irrigation of truck gardens. The remainder of the stock is used in the irrigation of over 15,000 farm acres.

As a part of the Fry ingpan-Arkansas Reclamation Project, the United States constructed Pueblo Dam across the Arkansas River a few miles west of Pueblo, creating Pueblo Reservoir. This inundated the head-gate and first four miles of the Bessemer Ditch. In exchange for the water formerly transported from the headgate through the ditch, clear water is delivered from the dam into the ditch.

Prior to construction of the reservoir, the United States brought a condemnation proceeding in the United States District Court for the District of Colorado against the Bessemer Co. for the taking of the headgate and the upper portion of the ditch. The complaint in condemnation named the designated acreage, the Bessemer Co. and “Unknown Owners” as defendants. The Bessemer Co. answered, alleging among other things, that the delivery of clear water instead of silty water would result in substantial damage to the individual stockholders. Subsequently, these shareholders brought the action in the Court of Claims, asking for damages of nearly $100,000,000, plus costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees. Thereafter, the United States District Court in the condemnation proceeding sustained the Government’s motion to dismiss the action as to the silt issue without prejudice to determination of that question by the Court of Claims.

The Court of Claims in its statement of facts has given as the basis for the alleged damages the following:

“The substitution of clear water from Pueblo Dam for the stream water with silt as diverted from the river has had certain adverse effects on the Bessemer Ditch system and the lands irrigated from the ditch. The silt in the water tended to seal the bed and banks of the ditch. Clear water leaks through the bottom and sides of the ditch in greater volume than silty water. More of the water passing the Bessemer Ditch gauging station about six miles below the original diversion point of the ditch seeps out of the bottom and sides of the ditch so that less of the diverted water reaches the points of delivery to Plaintiffs. There is an increase in the amount of aquatic vegetation growing in the ditch and the laterals. There has been an increase in erosion of the ditch and the laterals in places and sloughing off of material from the sides of the ditches into the bottom. There has been more seepage from the ditch into basements through the Pueblo reach of the ditch. When applied to land for irrigation, clear water does not spread as far as silty water.”

I.

The plaintiffs do not challenge the right of a junior appropriator to substitute water for their senior rights. See section 37-80-120, C.R.S. 1973. Rather, their position is predicated upon subsection (3) of the statute just cited, which reads, “Any substituted water shall be of a quality and continuity to meet the requirements of use to which the senior appropriation has normally been put.” They state that the clear water lacks the beneficial qualities found in silty water and will not spread as far as silty water. They further argue:

“In substituting water of a quality which is not as useful to Plaintiffs as the natural stream water customarily diverted by Bessemer ditch from the Arkansas River, the United States has taken a part of the Plaintiffs’ right to make beneficial application of their water.”

This leads us to the fundamental question as to whether the original appropriations for the Bessemer Ditch were for silty water. In our view the appropriations were for water, and not for water containing silt. Silt is not a component of water. Rather, it is suspended sediment which comes principally from the banks and bottom of an onrushing stream and which settles to the bottom when there is no longer movement of the water. Thus, there is far more sediment being carried in the waters of the Arkansas River during the flood season of late spring, than in the early spring or fall.

The “quality” requirement of the statute is not violated when a person slows down the movement of water, resulting in the settling of silt to the bottom and leaving only clear water for the senior appropriator.² Further, we regard the storage of water, with consequent settling of silt to the bottom of the reservoir, as not constituting an unreasonable deterioration in quality. See Cushman v. Highland Ditch Co., 3 Colo. App. 437, 33 P. 344 (1893).

II.

There has not been cited any case holding that a senior appropriator has a vested right to the silt content of the water as of the time of his appropriation or at any other time. The cases cited by the plaintiffs basically fall into two categories: (1) where the appropriation of the junior appropriator reduced the amount of water available at the senior appropriator’s point of diversion, causing the senior appropriator to receive less than he would have otherwise; and (2) where the water of the senior appropriator has been rendered unfit for the purpose of his appropriation by the addition of pollutants or other materials to the water. The trend and philosophy of Colorado law are contrary to the result asked by the plaintiffs. The Arkansas River is overappropriated; water is scarce; and conservation of water and prevention of wastage is the order of the day.³ The plaintiffs have canals and laterals which leak and seep, thereby, so far as plaintiffs are concerned, wasting the water. They seek to continue their transport of water in leaky ditches by, in effect, calling upon the junior appropriators on the stream to pay for the portion of the leakage which silt will stop.

We said in Fellhauer v. People, 167 Colo. 320, 447 P.2d 986 (1968):

“For nearly a century the waters of the Arkansas River have been used and reused many times over as they proceed from elevations exceeding 12,000 feet to 3,375 feet at the state line. These uses, and similar uses on other rivers, have developed under article XVI, section 6 of the Colorado constitution which contains inter alia two provisions:

‘The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using water for the same purpose;’

Under those provisions and the statutes enacted thereunder a great body of law has been established. In the six briefs, all ably written, sixty Colorado cases have been cited. These decisions are concerned primarily with the respective priorities of vested rights which have been established. It is implicit in these constitutional provisions that, along with vested rights, there shall be maximum utilization of the water of this state. As administration of water approaches its second century the curtain is opening upon the new drama of maximum utilization and how constitutionally that doctrine can be integrated into the law of vested rights. We have known for a long time that the doctrine was lurking in the backstage shadows as a result of the accepted, though oft violated, principle that the right to water does not give the right to waste it.

“Colorado Springs v. Bender, 148 Colo. 458, 366 P.2d 552, might be called the signal that the curtain was about to rise. There it was stated as follows:

‘At his own point of diversion on a natural water course, each diverter must establish some reasonable means of effectuating his diversion. He is not entitled to command the whole or a substantial flow of the stream merely to facilitate his taking the fraction of the whole flow to which he is entitled. Schodde v. Twin Falls Land & Water Co., 224 U.S. 107, 119, 32 S.C. 470, 56 L.Ed. 686.’”

Our answer in the negative to the question propounded by the Court of Claims is a part of the policy of this state that there should be maximum utilization of water and that the maximum utilization doctrine be integrated into the law of vested rights. Without the storage of water, the use thereof cannot be maximized.

It will be noted that in Colorado Springs v. Bender, supra, this court cited the United States Supreme Court in Schodde v. Twin Falls Land & Water Co., supra. Schodde diverted his water from a shallow canyon and up to his fields by means of water-driven water wheels. Later, others built a dam which slowed the flow until it would not drive the water wheels. Schodde claimed damages against the defendant dam builder. The United States District Court dismissed the complaint on the ground that Schodde’s claim to the right to have his water wheels turn was not a reasonable attribute of an appropriation. The Court of Appeals affirmed, as did the United States Supreme Court, stating, “extent of beneficial use was an inherent and necessary limitation upon the right to appropriate.” See Empire Water and Power Co. v. Cascade Town Co., 205 F. 123 (8th Cir. 1913).

In using its leaky ditches the Bessemer Co. has not attempted to make maximum utilization of the water. As was indicated in 1909 in a case involving the Bessemer Co. and its main canal (Middelkamp v. Bessemer Irrigating Ditch Co., 46 Colo. 102, 103 P. 280), the time may not yet have arrived when all ditches can be required to be lined or placed in pipes. Even assuming that that proposition of 1909 still holds true, this does not change our view that the plaintiffs do not have the right to use silt content to help seal leaky ditches. To view it otherwise would run contra to a basic principle of western irrigation that conservation and maximum usage demand the storage of water in times of plenty for the use in times of drought.

III.

The fountain of Colorado water law is to be found in Colo. Const. Art. XVI, § 5 which provides:

“The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.” (emphasis added)

Thus, our constitution makes water — not silt and not silt and water — the property which is subject to appropriation. Words used in the constitution are to be given “the natural and popular meaning in which the words are usually understood by the people who have adopted them.” Prior v. Noland, 68 Colo. 263 at 267, 188 P. 729 (1920). To the same effect, see People ex rel. Seeley v. May, 9 Colo. 80, 10 P. 641 (1885). Perhaps we need to look no further than this constitutional provision for our answer to the question propounded.⁴

The effect of granting any particular appropriator a constitutionally-protected property right in the concentration of silt present in the water at the time of the appropriation would seriously inhibit any subsequent upstream or downstream appropriation. Upstream diversions or impoundments will result in alteration of the silt concentration to downstream users if only due to the slowing impact on stream velocity. Applied in its extreme, an appropriator located on lower reaches of a stream with a very early appropriation date could put a call on the river for the receipt of its natural silt concentration, which would have the practical effect of halting all upstream use and commanding substantially the entire stream flow to satisfy its appropriation.

The Government and amici argue that the Bessemer Co. cannot establish a right in silt because silt is a pollutant under the provisions of the Colorado Water Quality Act (section 25-8-101 et seq., C.R.S. 1973) and the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.). The plaintiffs state, “this is not now, and never has been a pollution case,” and they argue that, therefore, the last mentioned statutes do not apply. Our views already expressed are such that we do not need to reach these issues. For the same reason, we do not consider the question of who owns the silt, nor the Government’s argument that the advantages inuring to the plaintiffs as a result of the construction and operation of Pueblo Reservoir exceed the disadvantages.

The Whittlesey report was tendered to show that in certain areas the lining of ditches reduces water entering the aquifer from leaky ditches. This relates to the balancing of cost of lining ditches with loss of well water pumped from the aquifer. We do not regard the report as applicable to the subject here, i.e., the alleged right to suspended silt.

The question certified is answered in the negative.

MR. JUSTICE LEE, MR. JUSTICE ERICKSON and MR. JUSTICE CARRIGAN dissent.

1 This report was addressed to the Department of Natural Resources, State of Colorado, and was prepared under the auspices of the Environmental Resources Center of Colorado State University.

2 This is in contrast to the situation in Arkoosh v. Big Wood Canal Co., 48 Idaho 383, 283 P. 522 (1929). There silt content in the stream reduced seepage losses through porous streambed material. A reservoir was constructed. The flushing action of the water released from the reservoir caused an increase in seepage losses, to the end that the quantity of water reaching downstream appropriators was lessened. Arkoosh is a quantity — not a quality — case. In this case there is no contention that the plaintiffs are not receiving the quantity of water entering the Bessemer Ditch to which they are entitled.

3 Fellhauer v. People, 167 Colo. 320, 447 P.2d 986 (1968).

4 For a case involving the lack of right to appropriate salt as a part of water appropriated, see Deseret Livestock Co. v. State, 110 Utah 239, 171 P.2d 401 (1946).