Riverside Reservoir & Land Co. v. Bijou Irrigation District

176 P. 117, 65 Colo. 184

• Court: Supreme Court of Colorado
• Decided: May 6, 1918
• Docket: No. 8711
• Status: Published

Opinions

Opinion by

Mr. Justice Teller.

The plaintiff in error seeks to reverse a decree, entered in a proceeding to adjudicate water rights, upon the ground that the court erred in awarding to it two priorities, with an interval of five years between them, instead of one for the total of two, and ,all as of the earlier date.

The first decree is for seven hundred million cubic feet, with priority as of April 1st, 1902, and the second is for one billion, eight hundred and five million cubic feet, of date of August 1st, 1907.

Defendant in error The Bijou Irrigation District is the principal owner of the Empire Reservoir, to which was awarded one billion, six hundred and forty-two million, six hundred and twenty-nine thousand, eight hundred and ninety cubic feet, with priority of date May 18th, 1905.

Defendant in error Painter is the owner of the Grand View Seepage Ditch, which was given four cubic feet of water as of date of May 15th, 1907. The error assigned as to that part of the decree is not argued, and, therefore, will not be considered.

The principal attack on the decree is on the ground that it is not supported by the evidence.

It is contended that the Riverside Reservoir, with capacity to the aggregate of both the priorities awarded to it, was one single project, carried on with diligence from' its inception to its completion, and not at one time a completed work, with a subsequent enlargement.

The record contains a mass of evidence as to the manner and the time of doing the work on the reservoir, the inlet and the outlet, as well as evidence by way of contracts concerning the water rights contemplated, and statements of the promoters of the project. This included evidence, both written and oral, of admissions by those who were promoting the project and managing the work that the Riverside Company’s priority was to antedate that of the Empire Reservoir only to the extent of the former’s capacity at that time, which was seven hundred million cubic feet.

From all this it might reasonably be concluded that the original intent was to construct a system of irrigation by the storage of water to the extent later decreed to it as the first appropriation; and that the subsequent work done on it was by way of enlargement.

This conclusion is fortified by the fact that the owners, between the dates of the two appropriations, transferred their activities wholly to the south side of the river, and built there the Empire Reservoir, receiving irrigation district bonds therefor.

The referee found that the last work done on the Riverside system was an enlargement, and not the completion of an incompleted system; and the court approved and confirmed such finding. There being a clear conflict of evidence on that point, we are not at liberty to reject the findings of the court. The judgment is therefore affirmed.

Chief Justice Hill not participating.

Mr. Justice Scott dissents.