Opinion
No. 27436
Decided October 3, 1977. Rehearing denied October 24, 1977. Rehearing stricken January 30, 1978.
The water court granted applicant's application for underground water rights and the use of well water as alternate points of diversion for the applicant's decreed surface water. The protestants objected.
Affirmed
1. WATER RIGHTS — Abandonment — Fact Question. The question of whether there was an intent on the part of property owner to abandon any of decreed surface water is largely a "fact" question.
2. Underground Water — Well Water — Finding — No Abandonment — Affirmed. Where water court, over protestants' objections, granted applicant's application for underground water rights and use of well water as alternate points of diversion for applicant's decreed surface water, held, since review of record discloses sufficient evidence to support water court's finding that there was no intent on the part of applicant's predecessors in title to abandon any of the decreed surface water, judgment of the water court is affirmed, notwithstanding protestants' assertion, that rights represented by applicant's surface decrees had been abandoned in whole or substantial part, and that change in points of diversion requested by applicants would cause substantial injury to junior appropriators.
Appeal from the Water Court Water Division No. 1, Honorable Donald A. Carpenter, Judge.
Alvin L. Steinmark, for applicant-appellee.
Michael L. Walker, for protestant-appellant City and County of Denver.
Glenn G. Saunders, for protestant-appellant Weldon Valley Ditch Company.
Donald F. McClary, for protestant-appellant Irrigationists Association.
The water court granted the applicant's application for underground water rights and the use of well water as alternate points of diversion for the applicant's decreed surface water. The protestants objected there and here on the grounds that the rights represented by the applicant's surface decrees had been abandoned in whole or in substantial part, and that the change in points of diversion requested by the applicants would cause substantial injury to junior appropriators. The protestants further urged here that some of the applicant's claimed underground water rights are not subject to adjudication because of failure of the applicant to prove acts necessary to constitute an appropriation. We do not consider this last mentioned assignment as it was not presented to the water court. We affirm.
[1,2] The key issue in this case is whether there was an intent on the part of the applicant's predecessors in title to abandon any of the decreed surface water. This is largely a "fact" question. If there was evidence to support the water court's finding that there was no intent to abandon, we must affirm. There was evidence to support the trial court's finding.
This case concerns the decreed rights to the Corona Ranch Ditch. The applicant is the owner of two ranches, which are adjacent to the south bank of the South Platte River. The westernmost of these is the Eagles Nest Ranch, consisting of 4300 acres. Immediately to the east of it is the Lost Creek Ranch, containing 1720 acres. In addition the applicant holds two sections of state land under lease.
The headgate of the Corona Ranch Ditch is on the South Platte River in the northwest portion of the Eagles Nest Ranch. The Corona Ranch Ditch proceeds about three miles through that ranch to the Lost Creek Ranch. Except in times of high water, the headgate of the ditch is above the flow of the river. It is apparent from the provisions of the decree, that by July 10th of each year the river was lower than the headgate, with resultant inability to divert river water into the ditch at that point.
On November 21, 1895 the Weld County District Court entered a decree, granting two priorities to the ditch. The first was Priority No. 10 with priority date of June 1, 1875 for 21 cubic feet of water per second of time (c.f.s.) between April 10th and July 10th of each year. The second was Priority No. 31 for 35 c.f.s. The decree stated as to Priority No. 10, "By water on meadows." It described Priority No. 31 as "By Construction." It follows that under Priority No. 10 the water flowed in the ditch rather naturally, with little construction required. Also, in order for there to be Priority No. 31, it is apparent that the ditch was enlarged by construction.
The record shows that for extended periods of time there was non-use or only partial use of the upper portion of the ditch. One witness testified that a number of years ago a bridge was constructed across the ditch at a point approximately a mile below the headgate. According to this witness only six c.f.s. can pass under this bridge.
The ditch runs parallel to, and at a lower level than, the Bijou Canal and the Empire Intake Canal. Water from these canals historically has seeped into, and formed a part of the flow of, the Corona Ranch Ditch. Also, seepage from the two canals, as well as from the river, furnished subirrigation to the applicant's land.
There are two water wells on the Lost Creek Ranch which were decreed in 1974 with priority dates of December 31, 1944, and June 6, 1951 for 3.89 c.f.s. and 4.36 c.f.s., respectively. The applicant obtained in this proceeding a conditional decree for four more wells in the aggregate amount 9.78 c.f.s.
In 1974 the applicant entered into a contract with the Bijou Irrigation Company for transportation of water decreed to the Corona Ranch Ditch through the Bijou Canal.
Testimony was presented on behalf of the applicant to the effect that through the years the applicant and his predecessors in title had used the seepage water and well water as alternate sources of supply for the Corona Ranch Ditch decrees.
In its decree, the water court stated:
"That the Objectors have failed to show by any evidence that the water rights in and to the Corona Ranch Ditch have been abandoned. On the contrary, the evidence shows a clear use of the waters in and to the Corona Ranch Ditch by the Applicant and his predecessors, and there is no evidence of any intention to abandon said water rights."
In support of this finding, the court mentioned the following matters:
1. The Corona Ranch Ditch historically has irrigated 1200 acres of land as shown by the records of the State Engineer and by testimony presented at the trial.
2. The waters in the ditch have been continually used since its construction, and the owners of the land have further used the two existing irrigation wells and seep waters as alternative sources of diversion.
The court added that section 37-92-301(3)(d), C.R.S. 1973 provides that in authorizing alternate points of diversion for wells the court should exercise the widest possible discretion to permit such use.
The court concluded:
"The water rights in and to the Corona Ranch Ditch have not been abandoned. In order to show an abandonment of a water right, the burden of proof is upon the Objectors to show by clear and convincing evidence that the water rights in and to the Corona Ranch Ditch have not been used for a long period of time, and that the non-use is coupled with an intent to abandon. [citations]
"Intention may be shown either expressly or by implication. Evidence of non-use is not conclusive, and merely establishes a prima facie case. [citations]"
The court cited Upper Harmony Ditch Co. v. Carwin, 189 Colo. 190, 539 P.2d 128 (1975); Means v. Pratt, 138 Colo. 214, 331 P.2d 805 (1958); Pouchoulou v. Heath, 137 Colo. 462, 326 P.2d 656 (1958); Cline v. McDowell, 132 Colo. 37, 284 P.2d 105 (1955); Fruitgrowers Ditch and Reservoir Co. v. Donald, 96 Colo. 264, 41 P.2d 516 (1935); Arnold v. Roup, 61 Colo. 316, 157 P. 206 (1916); Parsons v. Fort Morgan Reservoir Irrigation Co., 56 Colo. 146, 136 P. 1024 (1913); White v. Nuckolls, 49 Colo. 170, 112 P. 329 (1910); and Platte Valley Irrigation Co. v. Central Trust Co., 32 Colo. 102, 75 P. 391 (1903).
* * * *
"Applicant shall be entitled to the use of priority number 10 for 21 c.f.s. with an appropriation date of June 1, 1875, only between the dates of April 10 and July 10 of each year in accordance with the Decree of the Weld County District Court in Cases numbered 433 and 2142 dated November 21, 1895. . . . Applicant shall be entitled to the use of priority number 31 for 35 c.f.s. with an appropriation date of November 15, 1886 only at such times as said water right is in priority. If said surface rights are used by Applicant as alternate points of diversion for his wells, said wells may operate only at such times as said Decrees are in priority. At all other times the hereinafter described wells of Applicant shall be subject to administration and regulation by the Office of the State Engineer, State of Colorado."
The findings, conclusions and decree are supported by competent evidence.
The water court granted conditional decrees for the four additional wells as prayed by the applicant. It ruled that all six wells might be used as alternate points of diversion of the Corona Ranch Ditch to the extent of the capacity of the wells; and that applicant should cease diverting directly from the river an amount equal to that pumped from his wells, being a total of 18.03 c.f.s.
The protestants have argued that the change permitted by the court will greatly enlarge the burden on the river to the injury of junior appropriators. In contrast, the water court ruled that, if the surface decrees to the ditch are reduced proportionately by the amount of water pumped from applicant's wells, there will be no injury to vested rights; and that in fact the river will be benefited.
Since our affirmance of the court's finding of no abandonment means that the applicant could enforce his rights under the decrees at the headgate, it is obvious that using water from the wells in lieu thereof would leave more water in the river and thus aid, rather than injure, junior appropriators.
Judgment affirmed.
MR. JUSTICE ERICKSON concurs in part and dissents in part.
MR. CHIEF JUSTICE PRINGLE and MR. JUSTICE KELLEY dissent.