SE
ii
1965
IN THE DISTRICT COURT WITHIN AND FOR THE COUNTY OF MONTEZUMA
STATE OF COLORADO Civil Action No. 3411
MONTEZUMA VALLEY IRRIGATION COMPANY, VS. J. T. WILKERSON, Plaintiff, Defendant. ORDER
This action came on for trial to the Court on March 17, 1965, the plaintiff being present by Its officers and attorneys, Milenski & Parga. Defendant was present in Court in persipa aged by him attoraery. Coe.rge V. kit-votive% At the conclusion of the plaintiff's evidence, defendant moved for a non-suit and dismissal of the action on the ground that plaintiff had failed to prove that defendant had taken any water of the plaintiff and was therefore not entitled to an injunction.
The Court having reserved it's ruling on the motion, defendant elected to stand on this motion and offered no
evidence. The parties thereafter submitted their arguments by written briefs.
The Court having heard the evidence, read the briefs, and being now fully informed in the premises, makes the
following findings:
The plaintiff contends that defendant has been
diverting water from what it calls The Rocky Ford Lateral which is referred to by defendant as Rocky Ford Arroya, to which he
is not entitled in that he is attempting to appropriate the
meter from said Lateral or Arroya, as the case may be, amd
thereby emosies great and irreparable inlmry to the plaintiff
thus *mettlesg plaintiff to a permanent injwactiOn.
Defendant contends that he has a decreed
approp-riation from this Court in 1909 for water appropriated and
applied to a beneficial use. Plaintiff seeks to counter
this defense on the basis that it has bees in actual,
ez-cluaive, open end adverse possession of these interests for
more than twenty years prior to the filing of this complaint
on July 16, 1961, that defendant is *stopped to assert any
claim in said arroya or draw, mad for the further reason that
defendant's Leeds are located in Water District # 34 and not
in District # 32 in which defendant's appropriation has been
adjudicated, at the time of the trial and since, Plaintiff
has contended that even if District # 32 was the proper Water
District, failure of notice to plaintiff renders the District
# 32 decree invalid as to plaintiff.
FINDINGS OF FACT
1. Defendant's predecessors made an appropriation
of water in 1909 and it has been continuously used through
the same headgates since that time and until 1950 without
objection by plaintiff.
2. Defeadant's predecessor presented evidence is
Civil Active No. 1077 in support of his statement of claim
on September 21. 1950 being represented at that time by the
firm of Nilemski Armstrong.
3.
That Civil Action No. 1077 was the adjudicationproceeding in Water District # 32 commenced in September, 1935,
4. That in Civil Action No. 1077 defendant received a decreed priority of .76 cubic feet of water, .24 cubic feet of conditional water and .25 cubic feet of domestic water in the winter and dated July 1, 1909.
5. That Rocky Ford Arroys was determined by this Court in Civil Action No. 1077 to be a natural water
course.
6. That notice in Civil Action No. 1077 was given in accordance with the appropriate Colorado Statute in effect at that time.
7. That plaintiff does not claim any water flowing in the Rocky Ford Arroya except that placed there by it.
8. That plaintiff does not claim to own and has
not filed a statement of claim to any water except that in
the Dolores River nor does it have a decreed priority to water from any other atrium.
9. That plaintiff did not receive notice by mail
or by personal service of the adjudication in Water District # 32.
10. That notice of the adjudication in Water District # 32 was published in the manner and for the time required by Statute in three newspapers of general circulation in 'Montezuma County and by posting in ten (10) public places.
CONCLUSIONS OF LAW
1. The defendant has a valid decreed priority from the Rocky Ford Arroya in the amount of .76 cubic feet of water, .24 cubic feet of conditional water and .25 cubic feet of domestic water in the winter under a decree of this Court milch has not been modified as far as relates to defendant.
2. That there has been but one adjudication in
in Water District # 32 and at the date the original
approp-riation was made by defendant's predecessors in title; the
lands is question were not irrigated by water from the
Dolores River and more therefore not in Water District # 34
but rather in Water District # 32.
3. That in determining which Witter District
defendant's lands are /A the status of those lands as of the
date of appropriation should control over any subsequent date.
4. That as plaintiff claims no right to any
water except that in Water District # 14, it had no more
right to personal service of proceedings in Water District #
32 than it mould have as to proceedings in Water Districts
Noe. 2,, 30, 31 or 33.
5. That there has been no denial of due process
to plaintiff and that the div-rop in Civil Action No. 1077 is
valid and binding on the plaintiff and this Court.
6. That the plaintiff has failed to prove adverse
possession of defendant's water.
7. That the plaintiff has failed to pro's that
the defendant is estopped to claim the water decreed to him.
8. That the plaintiff has failed to show that the
defendant is taking any of plaintiff's water.
9. That the question of whether or not there was
water available for appropriation by defendant has heretofore
been determined in Civil Action No. 1077 is binding oft the Court in this proceeding.
10. That the right-of-way deed did not convey
water flowing in the Rocky Ford Arroya since it did not purport
to convey the water. And that since at all times during such
publication, plaintiff was in existence and doing business in
plaintiff actual notice of the proceeding and an opportunity to be heard.
11. That as of July 1, 1909, the date of defendant's appropriation, plaintiff has not shown
(
&
)
carrying any water,
That the Hermana High Line Lateral was
(b) That the upper and lower parts of the Rocky Ford Arroya, called the Goodland Ditch and the Rocky Ford Lateral respectively by plaintiff, were carrying any water of plaintiff,
(c) That there was no water tributary to the San Juan River in Colorado available for appropriation flowing in Rocky Ford Arroya,
(d) That defendant's lands were irrigated It.. ditches or canals talc:fly water From the nolnr-c River within the boundaries of Montezuma County or from any streams draining into said portion of the Dolores River.
12. That at no time material to this action has plaintiff known haw much water was placed by it in the Rocky Ford Lateral, nor haw much was available for its share-holders below defendant's headgate, nor the amount lost by seepage and evaporation.
13. That plaintiff has deliberately caused water flowing in the sO-called Goodland Canal to be intercepted by the Highline Canal in such a manner as to prevent any waters
therein, not belonging to it, from continuing dawn the natural water course to defendant's headgate.
14. That prior to the tins of man-made changes any water flowing into the Rocky Ford Draw flowed through it into McElmo creek, a tributary of the San Juan River.
AWL.
15. The plaintiff was in existence with its headquarters in Montezuma County at all times for a period many years prior to the commencement of Civil Action No. 1077 to this date.
16. That the plaintiff has not proved that defendant has abandoned his right to use the water in
question. Abandonment must be shown since the date of the decree which is res adiudicata as to acts prior thereto.
17. Plaintiff having alleged that defendant is taking its water has the burden of proving such allegation by a preponderance of the evidence; this it has failed to do and the motion for dismissal should therefore be granted.
WHEREFORE, IT IS ORDERED, ADJUDGED and DECREED that the complaint herein be dismissed.
IT IS FURTHER ORDERED, ADJUDGED and DECRELD that defendant have judgment for his costs herein expended.
DONE and SIGNED this 7th day of September, 1965.
BY THE COURT:
jiiJ/.
e1
•
•
IN THE DISTRICT COURT IN AND FOP
• THE COUNTY OF MONTEZUMA
STATE OF COLORADO •
Civil Action No.
MONTEZUMA VALLEY IRFIGAllON ) COMPANY, a mutual ditch company, ) )
Plaintiff, )
)
vs. ) COMPLAINT
)
POY SHEP'APD and MAPGIE BELL )
SHEPAPD, )
)
Defendants. ) •
Plaintiff complains of "Defendants and 'alleges:
I. Plaintiff is a mutual ditch company organized and existing under and by virtue of the statutes of the State of Colorado.
2. Plaintiff holds decreed priorities on the Dolores Piver No. 21 in the decree of the District Court of Montrose County; •
Colorado, in the year 1892, ratified, *confirmed and .redesignated District Priority No. 41, Stream Priority Dolores 16, per decree qf the District Court of Montezuma County, Colorado, filed
December 7.
1933, which water the Plaintiffcompany diverts
to it* various OtaFIP-holders for agricultural usel. Plaintiff owns ditches And rightivofway
which ditches are used for the purpose of delivering water to ita.ahare-bolder,.3. At the time of the construction of one of the main •
laterals of Plaintiff by its predecessor in title, the Dolores No. 2 Land and Canal Company, it was necessary to go over a certain area upon
which there then existed a ditch to the best of Plaintiff's knowledge and belief, identified as the Aztec Ditch and owned by one Charles John.=
The decreed water for said Aztec Ditch was No. 12 per decrt3e of the District court of Montrose County, Colorado, of 1894, redesignated
District Priority 16, Stream Priority Dolores 8 per decree of Diserict
Court of MOIlte21111111 Count), filed December 7, T933. The come t
tion extending to the said Charles Johnson for ulibig ths *rot upos which
part of the Aztec ditch ayes constructed vas W furnish the said Charles
jotuison sufficient water for the irriestios of the land then covered by said ditch, and which Agreement Plaintiff alleges to be limited to land then irrigated and not extending more than a raid amount ot one(1)
cubic foot of water per second of time.
4. Plaintiff has always:been ready, willing and able to
live up to the terms and conditions of the Agreement. Plaintiff has
constructed head gates on its laterals tor the purpose of !wades deliv
of water to lands- and acreage formerly irrigated by the Aztec Oltdi. The heed gates so installed fcerthe Irrigation of the lands previously
irrigated by the Aztec Ditch have locks placec$ upowthe same *tits
purpose of limiting the amount of watt: that may be takes. Ilse
in
Defendants/ violation of the Plaintiff's rights and other great demos and
detriment to its shareholders, has ftom time to time removed sibl
locks and have attempted to irrigate lands not irrigable while
OP
*McDitch was in existence and in quantity exceeding 1 cubic foot ot Inger • per second.
5. The acts of Defendants complained oi have been
maliciously done for the purpose of hindering, delaying, damaging and Injuring the Plaintiff and its shareholders and have deprived Maio* and its shareholders of water to which they are entitled.
6. 'Me Plaintiff has no speedy and adequate remedy at
law and the Plaintiff is without relief except through the equity powers of this Court.
II
6. All conditions precedent to the bringing of this *aim have been made, done and performed.
WHEREFORE, Plaintiff prays an injunction agenst the Defendants, restraining and enjoining the Defendants, their agents, servants and employees from interferring in any manner with the head. gates of the Plaintiff throughwhich water is delivered for the purpose of irrigation lands formerly irrigated through the Aztec Ditch and this Court find and ascertain the amount of water reasonably necessary to irrigate the lands, irrigated by the Aztec Ditch at the time Plaineifrs predecessor constructed its lateral u above mentioned and the
I Defendants, their agents, servants, arid employees be
enjoined from attempting to use, take or divert water in excess of the amount needed to irrigate lands Ono( solely setvice4 from the Aztec 11 Ditch at the time the said Aztec Ditch became inoperative and in any
event exceeding one (1) cubic foot of water per second of time; for its costs herein expended and for such other' and further relief as the Court deesms just and proper.
Plaintiff's Address: Cortez, Colroado
MILINSKL& PAPGA
By:
• Attorneys for Plaintiff
t
1
•
• "I
4. `I :le
!' Toa'nieithr ,tikinii; water tticretroz.n
of Atter iusee. ;vn -('--AppJ c;vt i•ster rum1tocky
For4 LAusrai ant Ali kial"?.!,:nqe!'"- •
in h". r "
appro tne &Aid laterferryJ with or
PlifVu t4ibtr:ba,,ki 0 tki aft iillie.hoidere t2Acier
1,..K;cv 11-7rr4
iltttlitt41 ' yater evider.cei„;4
by elitibt.: 11L464
stock in elatntitre company. The i)efeodant is uwerting water from ;girl Rocky Ford Lateral tk.., which he Is cot entitled. ins Uefendant and all
at
the shareholders oi ilaititiff received watertrom and throuwA *fie ditch system operated by the Plaintiff under
rules prescribed by
Luc Plaintiff and the by-laws of Plaintiff. 'the acts at We Defendant itersiti complained of are in violation of such rules and by-laws and the
continueki use of water by the L)efendant to which he is not entitled rtsults In a prederence to the Defendant in violation of Plaintiff's rules and by-laws.
5. Pecuniary damages would be totally inadequate
compensation to the Plaintiff for the water so wrongfully diverted. The Plaintiff has ho speedy and adequate remedy at law and unless
trained by proper order of this Court, grow Lad irreparable C.Anisgt
-2-1
arsei trn
%If COndit 1,4..416 lei WC Or 01i tslii 110 eklho
hfsert
A HEREFORII, laintiff plays judgrneot that E
A " 41151a.000 LotTI tat i 41 V
Rocky Ford lateral =COM, thrcxigh and by a bead-gate and under the superfielan of the Plaintiff and its agents or employsce, and the
Defendant be restrained and enjoined from doinr env of the set* herein
complalseo r V1 Pikin'lf have such other further rel is to
the Cain tMAXI pi 44i
f,FNISti PARC
;
Aior Dzaut.r — S-8531 ?1•
0&lat1t!'16
,A11.4‘rtpil NI. 1 an4;
;:rAXk1 LPt:?p';"4 , os. .-, *4 1.4 10:1 •
3. watbout *if •1!t knovlueit rn.1iJ m&t19t 1„) bAtst b4 1.1($1, NC,C tLut
ttA: CZ ,e in parAgriph No. 3 of p1silut;4:
3
C'.›mplialnt is & descriptit of a portion of VI. naturri st:ekin traverses deiondiant's land vituate in Montezuma County, Colois..
4. That plalatiff, suboaqueat to appropriation of vats/ as hereinafter sot forth by defies:Aut o nonmencod to use said nat-ural stream to carry vator of plaiatiff by diverting water out of a lateral of plaintiff's above tha Lands of defendant 1.nto said natural strata and tbea taking the Pater so diverted out of said natural stream at some plat a eeneiderable distant)* below said lauds of dolesnant.
3. That the head, or comneasiag, of said natural straits is La the area of **otiose sad 9, TOwaship 36 Nortb, Swage 13 West, Y.M.P.M., is the County of Montosuma, State of Colorado, and that dofendant is the opener of the Wilkerson Ditch, which Ditch was scomml904 mid coMPLet04 La the year 1109, and that the bead of said Ditch, sad the poiat of diversion by defendant; is situate La the
Sit 1/4 SI 1/4 of said Deletion ft, *ad diverts wa,ter from said mat-ural strata sad carrioe ease upon said lands of defondant, sad
It 171 1. —,! 4;f it 41.1 place .-Lta iabtTUCtL
of a six* to carry 0/10ths cubic foot of water per ecead oi t./.. d. That 0,1Jtbis cubic foot of ester per 11100044 of tine ttroug:c said liikersoo Ditch vas diverted sad put to
use for irrigatios, stack aud doseetic purposes %/pot said 11 defenoant is the year 1909, aad that delen4ant is sow the own* said appropriation of 0/10ths cubic foot of water per second
