GROVES, Justice.
Action was brought by the Attorney General on behalf of the People of the State of Colorado under 1965 Perm.Supp., C.R.S., 1963, 148-11-22, to enjoin the plaintiff in error from pumping and using water from the alluvium of the Arkansas River contrary to an order of the water division engineer. The other defendants in error intervened to support the constitutionality of this statute, herein referred to as the 1965 act. We have had the benefit of three briefs amici curiae, representing different views, from fourteen attorneys in Boulder, Brush, Denver, Fort Morgan and Sterling.
The People will be referred to as plaintiff and the plaintiff in error as defendant.
The defendant's well is located approximately 30 to 35 miles below Pueblo and about the same distance above La Junta. It was drilled in 1935 to a depth of about 35 feet. When drilled the well was about a quarter of a mile from the bank of the river but the channel of the river has since changed and, at the time of the division engineer's order and at the time of trial, the bank was approximately 400 feet from the well. The well's bottom is approximately 20 feet below the bed of the river projected laterally. Since 1935 the defendant and his predecessor have pumped 800 gallons of water per minute continuously during each irrigation season of 150 to 180 days. This has been defendant's primary supply of water for irrigation of about 150 acres of land.
The priority right of this well has not been adjudicated. On June 24, 1966 there was not sufficient water in the river to fill the adjudicated rights of downstream users having priority dates as early as 1887; and they desired more water. On that date the division engineer notified the defendant to cease pumping until further notice. The defendant, asserting that the 1965 act was unconstitutional, refused to comply with the order. The action was then commenced and after hearing the court first issued a preliminary restraining order, prohibiting defendant from pumping water. Later, after hearing testimony and argument for five more days, it issued a permanent injunction as to the pumping "except in accordance with its right of priority of appropriation as determined from time to time, pursuant to the law of Colorado, including C.R.S. 148-11-22; or until further order of this court." The defendant has asked our review of these injunctive orders and the proceedings upon which they were based.
All of the surface flow in the Arkansas River during each irrigation season had been appropriated and placed to a beneficial use long before defendant's well was drilled in 1935. These surface appropriations have adjudicated priority rights and there is not enough surface water in the river to satisfy these decreed rights. In other words, the Arkansas River is very
The River and Its Alluvium
The home of the river involved, the Arkansas Valley, extends 340 miles from Leadville to the Kansas line. During the millions of years of its history the river has cut into and eroded away the formations, principally shales, over which it has flowed. Through long passages of time its course has changed back and forth. The result has been the creation of a trough filled with sand and gravel over a portion of which the river flows. With some simplification, it may be said that this body of sand and gravel, filled with slowly moving water, is the alluvium.
The alluvium is of varying widths and depths. At one point it was shown to be 3.4 miles wide, and at another 1.84 miles. In one area the depth of this sand and gravel is 34 feet, and in another 20 feet. The testimony was that between Pueblo and the Kansas line, a distance of 150 miles, it contains around 1,900,000 acre-feet of ground water. This water moves at the rate of 3 to 5 feet each 24 hours. As is the case of the surface water, it flows downstream. However, it also tends to flow toward the stream from each side, the extent of this being dependent upon proximity to the river, grade, geological conditions and other factors.
This slowly moving underground body of water has its source principally from precipitation and irrigation. The alluvium water drains to the visible stream in places and, if a well causes the level of the underground water to be lower than that of the surface stream, the latter will drain into the former with consequent loss to the surface flow.
The 1965 Act
The 1965 act reads as follows:
The Attorney General and the intervenors took the position that any acts of the division engineer might well have been under powers delegated under statutes existing prior to the passage of the 1965 act. Without necessarily endorsing the remarks, we find (outside the record and arguments) at pages 1-8, Proceedings of the Joint Session Mineral Law and Water Law Sections, Colorado Bar Association, October 15, 1966, the following statement of Mr. Benjamin F. Stapleton, Jr., the chairman of the Colorado Water Conservation Board:
We think it not necessary to this opinion to delineate the powers, if any, granted by the 1965 act which had not been granted by existing statutes.
Injunction Not Predicated on Administrative Order
In its conclusions of law the trial court stated: "The legislative intent is plain. The legislature under paragraph 2 provided that if an order of the state engineer is not complied with, an injunction will lie." The defendant rightly contends that the 1965 act does not call for judicial enforcement of administrative orders as a matter of course. We find no disagreement with this contention in any of the briefs. Throughout the proceedings in the district court the Attorney General assumed the burden of attempting to prove that restriction of the defendant's well was (a) necessary to prevent (b) material injury to (c) vested rights of (d) senior appropriators. The findings and other conclusions of law of the trial court are consistent with the proposition that these factors were issues in the case.
The defendant has urged most strongly and repeatedly that the plaintiff did not prove that the withdrawal and use of water injured any particular senior appropriator and no particular senior user made a call for the water taken by defendant. Therefore, the defendant contends, there is no basis for the injunction. The defendant maintains that the 1965 act must be enforced on a case by case basis, i. e., injury by a particular well to a particular prior surface right. However, we hold that, whenever a court or water administration official can make a finding that the pumping of a junior well materially injures senior appropriators who are calling generally for more water, there exists a legitimate and constitutional ground and reason for the regulation of the well, and a showing of a call against that well by a particular senior user is not necessary. In other words, we hold that, subject to the conditions hereinafter mentioned, the State Assembly may under proper channels of authority delegate to the water officials the power to protect the stream against unreasonable injury by junior wells when lower senior appropriators are not receiving, but are in need of and asking for their decreed rights.
Criminal Aspects
The defendant urged that the 1965 act was unconstitutional as it delegates to the state engineer the power to define crime. As to this, we agree with the trial court which disposed of the matter in its conclusions of law as follows:
Unconstitutional Performance
We now pass to the matter of validity of the acts of the division engineer and, first, to some of the background involved. When the defendant's well was drilled in 1935 there had been little tapping of the underground flow of the Arkansas Valley. In 1940 only 2,000 acre feet were being pumped from wells in the Arkansas Valley. Then came the drilling of wells on a vastly larger scale, being possible because electricity had been made available. By 1964 between 230,000 and 240,000 acre feet of water were being pumped annually from wells in this valley between Pueblo and the state line. By 1966 there were between 1,600 and 1,900 wells in the Arkansas Valley, each of which was pumping in excess of 100 gallons per minute, and in addition there was a large but unknown number of smaller wells. It is believed that one million acre feet can be pumped economically from the alluvium of this valley from Pueblo to the Kansas line. While irrigation above the peripheral alluvium has increased substantially the amount of ground water, it is implicit in
When water is pumped from a well a cone of depression is formed, i. e., a conical drained area in which the point of the inverted cone is at the bottom of the well pipe. This causes surrounding water in the aquifer to flow into the cone from all sides. Except for wells in very close proximity of the surface stream, the effect of this diversion upon the visible stream is not immediate. The time that the stream begins to be affected and the extent of the effect in quantity of water and duration depends upon a number of factors, including (a) distance of the well from the stream, (b) transmissibility of the aquifer, (c) depth of the well, (d) time and volume of pumping, and (e) return flow characteristics. A well in or at the bank of the stream may have substantially the same effect as a surface diversion at that point. The effect of a well, which is a considerable distance from a stream and which is used for irrigation, may not take place until the nonirrigation season, and, by the next irrigation season, the conical depression at the well may be completely recharged with new water entering the alluvium.
The testimony was in conflict as to the amount of consumptive use of water from the defendant's well, i. e., the amount lost by evaporation and transpiration. The surface of defendant's lands, being near the river and over the alluvium, all water not consumptively used returned to the stream or the aquifer. There was no testimony as to the movement of this return flow water. One expert testified as to a hypothetical well at Pueblo located 400 feet from the stream, "The well that close to the river will affect the stream to some extent in ten days or possibly less." Except for this we have been unable to find any testimony as to the extent and time of effect of defendant's well upon the stream.
With this background we now can review the method of procedure of the division engineer. He concluded to act without any written rules or regulations and without any prescribed guidelines.
While the water commissioners acting under him submitted reports on diversions, he never required well diversions to be included in reports. He prohibited them from acting and gave them no general instructions, stating, "* * * the only general instructions I have given them is that they don't know what they are doing, they had better not attempt to regulate wells, because this is something that a nonprofessional should not get involved with on our initial program." Throughout his testimony when the division engineer used the term "regulate wells," he meant "shut down wells." Of the 13 water districts under his jurisdiction he acted only in 2. In these he ordered 39 wells to cease pumping. This action was taken by him under an oral "consensus agreement" with certain senior appropriators (mostly ditch companies) to the effect that he would turn off some wells between May 1 and September 15 and they would not call for water taken by the wells from September 15 to May 1. He went to each of the 39 wells and reached a conclusion as to whether it should be shut down. While he stated that he considered a number of factors, he refused to give the relative weight given to any of them or to show that any standards of evaluation applied to one well were applied to any other.
The division engineer testified that all of the 1,600 to 1,900 wells pumping more than 100 gallons per minute affected the stream, but he shut down only 39 of them. He expressed his reasons for this as follows:
While no doubt he acted conscientiously and in good faith, the unsound foundation for his conduct is well illustrated in this question to him and his answer:
In his attempted enforcement of the 1965 act, he proceeded discriminatorily in violation of the equal protection clause of the fourteenth amendment of the United States Constitution and of the due process clause in article II, section 25 of the Colorado constitution.
Regulation of wells in the Arkansas Valley as contemplated by the 1965 act, in order to be valid and constitutional, must comply with the following three requirements:
There is a temptation to be more definitive as to these requirements, but in doing so we would be usurping legislative and executive functions. We must confine ourselves to a few rulings on constitutionality and to only broad statements as to any possible future legislation and administration.
The first requirement mentioned above will prevent arbitrary and discriminatory action of the division engineer in attempting to shut down only 39 of more than 1,600 major wells; of erroneously making his guideline an agreement with certain senior users; of attempting to protect the economy of the valley without plan; and of discriminating unreasonably between wells.
The second requirement perhaps is selfexplanatory.
We give an illustration concerning the third requirement. The possibility has occurred to us that, if the defendant would discharge a certain portion of the well water into the stream and use the remainder for the irrigation of his land, no material injury to senior users would result. If so, his pumping could be made conditional upon his discharge of that portion into the stream. This possibility has not been discussed in the evidence nor in the briefs. If it is not a sound thought as to defendant's well, it may be with respect to other wells. The division engineer permitted another well owner to continue pumping on condition that the owner purchase other water for the stream (in an amount not shown in the record). This demonstrates that the division engineer gives some measure of approval to the third requirement.
For nearly a century the waters of the Arkansas River have been used and reused many times over as they proceed from
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:
Matters Not Decided
The more we have perused the testimony and the briefs, the more we have been impressed with the fact that in dealing with the ground waters of the Arkansas Valley and the many complexities involved, intelligent administration requires the collection of further information and the further analysis of information already collected. This is one of the reasons why we have refrained from ruling at this time upon issues which were presented and which involve the following four matters:
The defendant urged that the term "subsurface channel" is so vague and indefinite that it renders the 1965 act unconstitutional. This term appears in the following provision of the act:
Generally, "subsurface channel" must mean the portion of the alluvium underlying and adjacent to the surface channel. One geologist and hydrologist defined it as the portion of the saturated valley fill hydrologically connected with the surface stream. He and other experts testified in effect that the entire alluvium is hydrologically connected with the surface stream. One of these experts on an aerial photograph of the area of defendant's well pointed to the tonal changes which in his opinion indicated the edges of the subsurface channel. As we interpret his testimony the subsurface channel does not embrace all of the alluvium and particularly does not include flanking areas of the trough, which are gravel underladen benches and terraces and which in the following paragraph are called the peripheral alluvium.
There was agreement among the parties that water in the alluvium provides or portions thereof provide hydrostatic pressure to support surface flow of the river. To express this in a most nontechnical manner, one might say that the surface flow of the river rides piggyback on the subsurface flow. Perhaps it is the sides of papa in the piggyback operation which represent the boundaries of the subsurface channel as distinct from the sides of the room in which papa and child are playing, but we do not know. It may be that "subsurface channel" embraces the entire alluvial fill of the valley. On the other hand the flow of water in the valley might be characterized—as Gaul—as having three parts: (1) the surface flow; (2) the flow in the subsurface underlying and adjacent to the surface stream, which portion of the subsurface we might visualize as the supporting alluvium and as the "subsurface channel"; and (3) the flow in the remainder of the alluvium which might be called the peripheral alluvium, being the outlying portions whose surface constitutes the benches and terraces.
All of the expert witnesses either testified that the Fellhauer well was within the subsurface channel of the river or seemed to assume that it was. We are satisfied that it was within the "subsurface channel" of the stream under any definition of the term. Fellhauer could not possibly be entitled to the benefit of any presumption which the legislature attempted to create in favor of a person whose well was located at a point outside of the "subsurface channel." Assuming, without deciding, that the term is so vague and indefinite as to be without any force or effect, Fellhauer is in no position to raise the question. The use of the term in the statute does not deprive him of any right and confers none upon him.
If the term "subsurface channel" in itself is sufficiently precise for those acting under the legislation to determine the boundaries thereof in each stream bed, there is little question but what the state engineer must have in his plan or rules and regulations a definition or description of the areas to be encompassed thereby in a particular stream or portions thereof.
With our lack of disposition of the issue concerning "subsurface channel," a portion of our remarks under this heading is gratis dicta. These comments have been made as all parties and amici have indicated that we should go as far as it was thought feasible in the evaluation of the 1965 act and its administration.
The 1965 act states that the state engineer shall administer waters, including tributary underground waters "in accordance with the right of priority of appropriation." Most of the underground waters of the Arkansas Valley have not been adjudicated. Between 1957 when the statute was adopted and 1965 when it was repealed, ground-water users of this state were legislatively told that it was not necessary to adjudicate their wells: "The priority date of a ground water appropriation shall not be postponed to a time later than its true date of initiation by reason of failure to adjudicate such right in a surface water adjudication." C.R.S.1963, 148-18-9, repealed by 1965 Perm.Supp., C.R.S.1963, 148-18. The same legislative statement again came into being in 1967. 1967 Perm.Supp., C.R.S.1963, 148-2-11. In contrast to the wording of the 1965 act, a much older statute, unrepealed, states:
The division engineer answered a question as follows:
The defendant has asserted that the 1965 act unconstitutionally delegates judicial powers to the state engineer and, somewhat paradoxically, that the state engineer (acting through the division engineer) acted in violation of the Colorado constitution and the 1965 act in not determining priorities of unadjudicated wells and first shutting down those with the least priority. The trial court disposed of the matter as follows:
In this connection we think it well to quote a portion from the following significant law review article—Morgan, Appropriation and Colorado's Ground Water: A Continuing Dilemma?, 40 U.Colo.L.Rev. 133 (1967) (footnotes omitted):
These wells must be administered in accordance with priority, along with other factors. Offhand, we know of no reason why the state engineer cannot take into account the relative priorities of wells, subject to appropriate judicial review. However, the issues involved have not been presented too thoroughly in the briefs and, therefore, it will be the better part of wisdom for us not to speak determinatively. Also, these questions can better be presented after the state engineer acts according to plan, rules and regulations.
Right to Uplift and Use of Well Water by Senior Surface Users
Three points of view have been expressed as to the right of senior users to uplift by underground waters to support the stream's surface flow. The defendant states that there is no such right whatsoever. The plaintiff and intervenors maintain that there must be no lessening of any of the uplift. Some of the amici take a middle ground to the effect that the precept against wasting water demands that use be made by appropriators of underground flow under some regulation and that surface appropriators must take reasonable steps to supplement or protect their rights from the loss of uplift. In addition to the complexities of this which must be faced under planning and the establishment of rules and regulations, there is a further problem which is not before us in this case. This is the validity of the concept that one surface appropriator who drills a well must use the well water as a part of his surface priority, whereas another surface appropriator who has not sunk a well can demand his full priorities from the surface flow.
It is premature for us to attempt to rule on "uplift" in this litigation.
The defendant went beyond the point necessary to protect his rights in refusing to cooperate with the water officials. He refused them the opportunity to examine his well and his operation of it. By reason of this intransigent attitude, which approached belligerency, he was the logical person against whom the first case should be filed. If all well owners adopted such an attitude, water administration would be next to impossible. For this reason our remand contains a direction not requested but nevertheless essential.
Our reversal is by reason of the arbitrary and capricious conduct on the part of the division engineer.
The judgment is reversed with directions to dissolve the injunction but to enjoin the defendant against interference with reasonable future investigations by the state engineer and those acting under him.
MOORE, Chief Justice (dissenting).
Section 5, Article XVI, of the Colorado Constitution provides that, "The water of every natural stream * * * [is] subject to appropriation * * *." Section 6 of the same article states that, "The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied," and that, "Priority of appropriation shall give the better right * * *."
In this action we are concerned with the Arkansas river which includes not only the waters visibly flowing on the surface of the river channel but also those waters found in the adjacent alluvial gravel fill through which they percolate and which are drawn by gravity in an easterly direction, moving at a relatively slow rate of speed, thus forming an underground supply of "transient storage" water. The visible water of the Arkansas river—that which is not located in the alluvium—flows on the top surface of the waters in transient storage in an open channel at a much higher velocity than that portion of the river which percolates through the alluvium. The visible and invisible portions of the river are so hydrologically connected with each other that water removed from the alluvium is replaced by other water from the alluvium as well as by water from that part of the river which appears on the surface.
When there is an over-abundance of water percolating through the alluvium from the sides of the open channel, the level of such water in transient storage is raised so that when it reaches the level of the open channel it appears as surface water. Any diversions of water from the river, whether from the surface stream by dams or headgates or from the transient storage by means of wells, come from the same source of supply and diminish the total volume of water in the stream. Waters diverted either by diversion dam and ditch, or by well and ditch, when used in agriculture, return to the stream to the extent that they are not consumed by evaporation or plant transpiration.
We must remember that the Arkansas river is made up of water visible on the surface of the ground, together with that which moves along at a relatively slow pace through the underlying alluvium, emptying into the surface stream from the sides of the visible channel at those places where the top level of alluvium water is higher than the surface channel. The alluvium draws water away from the surface channel at places where the "transient storage" level of alluvial water falls below the visible surface.
This court has had many occasions to determine the identity of waters which are part of a "natural stream" and which are subject to appropriation governed by the law of priority. We have repeatedly held that all waters, whether on the surface or underground that are tributary to a natural stream, are a part of the natural stream and subject to appropriation. Safranek v. Town of Limon, 123 Colo. 330, 228 P.2d 975, and other cases cited in that opinion.
In the majority opinion the conclusion is reached that the judgment must be reversed for the reason that the action of the state engineer in closing down the Fellhauer well amounted to "arbitrary and capricious" conduct. The only possible basis for this conclusion is the fact that prior to taking action the state engineer had not promulgated "rules and regulations" under the legislative act (C.R.S.1963, 148-11-22 (1)) which requires the state engineer to administer the laws of the state relating to the distribution of
The division engineer (Mr. Patterson) testified at some length concerning the facts justifying the order to close down the Fellhauer pumping operations. The trial court
While it is true that the above quoted statute gives authority to issue "rules and regulations" and "orders" it is perfectly obvious that they are not limited to those directed to users of water, but may include those essential to the direction of employees of the state engineer in carrying out his complicated duties—the complexity of which is increased beyond foreseeable measure by the majority opinion in this case. It is also apparent that the statute is not a blanket mandate to issue rules, regulations, and orders, but only such as may be "necessary for the performance of the foregoing duties," of administering the laws of the state relative to the distribution of surface and ground waters.
Mr. Patterson testified that well regulations were not made pursuant to any rules, regulations or guidelines published by the state engineer, but were regulated pursuant to the provisions of C.R.S.1963, 148-12-5(1) which provides in pertinent part that:
His testimony was to the effect that under C.R.S.1963, 148-12-6, he is supplied with a copy of the decrees adjudicated in his water district by the district court, which decrees are sufficient to provide adequate guidelines since all material factual matters are contained therein. He stated, "We regulate wells the same as we do the ditches of the Valley." Well regulation is based on the effect on senior appropriators, and if some diversions are so far removed from the stream or so situated that such regulation will produce no water to the stream system, they are not regulated. Regulation of decreed wells depends upon whether the regulation thereof will provide water. He further testified that wells were closed down on the basis of whether the effect would be material to the stream's system as a whole rather than for the benefit of a particular appropriator because the division engineer operates the stream as a system and not for the benefit of any one individual. In short, his statement was to the effect that above and beyond the direction of the statute and the court decrees, there was no need for the exercise of the statutory authority "to make such other regulations to secure the equal and fair distribution of water, in accordance with the rights of priority of appropriation, as, in his judgment, may be needed in his division." (Emphasis added).
It appears that the division engineer encountered a public relations problem in dealing with appropriators of water from wells who took the position that their rights were being violated; that the engineer had no authority to regulate them; and that the law requiring their regulation was unconstitutional. He called a series of meetings in an effort to make explanation and to work out a plan. This conscientious effort to find an acceptable solution to a pressing problem can hardly be called "arbitrary and capricious" action. A program based upon cessation of well operations during the time between specific dates was discussed
The substance of the above quoted statement has at all times heretofore been generally accepted as a correct statement of the law.
In this case the question arises as to whether the 1965 act in effect confers upon the engineer the authority to adjudicate priorities as between wells which theretofore had not sought decrees in adjudication proceedings conducted exclusively in the district court. The only language which conceivably might be construed as delegating this power to the engineer is that contained in C.R.S.1963, 148-11-22(1) in which he is directed to regulate the distribution of water "* * * in accordance with the right of priority of appropriation. * * *" Under existing law as provided by C.R.S.1963, 148-9-2, jurisdiction to adjudicate "Priority of appropriation of water between owners and claimants of water rights * * * is hereby vested exclusively in the district court."
The majority opinion, notwithstanding numerous opinions of this court which frown upon such action, repeals this last mentioned statute by implication, and the only basis for so doing is the language in the 1965 statute that, "The state engineer * * * shall execute and administer the laws of the state relative to the distribution of the surface waters of the state including the underground waters tributary thereto in accordance with the right of priority of appropriation * * *." (Emphasis added)
Under all the law pertinent to the doctrine of "priority of appropriation," an unadjudicated right is inferior to an adjudicated right, and neither the state engineer nor division engineer could make a rule or regulation, or make a finding, the effect of which would be to overturn priorities duly established by court decree. Decreed priorities represent vested property rights which cannot be diminished I am firm in my conviction that the state engineer is without authority to determine priorities of unadjudicated water rights, whether diverted by wells or otherwise so long as the exclusive power to determine priorities is vested in the district court by statute. Because he failed to enter this area of attempting to fix priorities as between unadjudicated wells (all of which were junior to all adjudicated rights) and because he did not issue "rules and regulations" concerning the order in which unadjudicated wells would be shut down, it is said that the division engineer acted "arbitrarily and capriciously." I cannot subscribe to such doctrine, and protest against such an announcement.
I am unable to find substantial basis for any conclusion that the state engineer "arbitrarily or capriciously" shut down the well of Fellhauer. In doing so he was following procedures used in the distribution of waters of the Arkansas river for one hundred years. He did not shut down any appropriator of water until investigation disclosed that by so doing additional water would be made available to senior appropriators. Admittedly he did not try to fix priorities among unadjudicated wells because jurisdiction to do so is "vested exclusively in the district court." (C.R.S. 1963, 148-9-2). Admittedly Fellhauer's well had no adjudicated priority; admittedly
I am unable to understand how it can be said that the engineer acted "arbitrarily and capriciously" when all that he did was that which his predecessors in office had been doing for one hundred years. He shut down a diversion of water by a junior appropriator in order that senior and prior rights might be protected, as it was his duty to do under command of the constitution, statutes, and court decrees fixing priority rights. The constitution, statutes, and court decrees have heretofore supplied all the "rules and regulations" which have been deemed necessary in the water district here involved for about one hundred years to protect the vested interests of claimants to the use of water in that district.
As I see it, rights guaranteed by the constitution to senior appropriators of water which have heretofore been fortified and protected by statute and court decisions are being violated by the majority opinion announced this date. These rights, being overlooked or misapprehended, are the constitutional rights of senior appropriators to require the division engineer to stop illegal diversions of water which destroy the value of their vested, adjudicated, prior rights.
Whether in later adjudication proceedings the district court would be justified in fixing priority dates retroactively, or nunc pro tunc, under authority of the legislative act which purports to direct that:
C.R.S.1963, 148-2-11, is a matter which raises serious questions involving vested rights. Determination of those questions are not essential to decision in the instant case. In this connection it is sufficient to direct attention to the constitutional provision which provides (Art. II, Sec. 11):
I view with deep concern the general trend of the opinion of the majority which, as I perceive it, will tend to create many uncertainties in areas where certainty and stability are most essential to full enjoyment of vested rights of long duration. I am also deeply conscious of the fact that by the judgment of my brethren—whose earnestness, dedication, and sincerity I do not question—my dissenting views are without merit. Nevertheless I have been required by conscience to set them forth for the single reason that although, admittedly, I may be wrong, I am not in doubt.
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