CITY OF BOULDER v. BOULDER & LEFT HAND DITCH CO.

GROVES, Justice.

The City of Boulder (Boulder) filed a complaint in the District Court of Water Division No. 1 (court) against The Boulder and Left Hand Ditch Company (Left Hand) and the North Boulder Farmers Ditch Company (Farmers). Boulder requested injunctive relief against the transportation of water for use in another watershed. The court sustained the defendants' motion to dismiss on the ground that the complaint did not state a claim upon which relief could be granted. We reverse.

The facts here set forth are taken from the allegations of the complaint. We follow the familiar rule that, as to a motion to dismiss a complaint, facts well pleaded in the complaint are deemed to be admitted. Each of the parties is a decreed appropriator of water out of Boulder Creek. Left Hand and Farmers are mutual ditch companies. Their decrees are for irrigation and are prior to that of Boulder.

The ditch of Farmers (Farmers Ditch) has been used for more than 100 years for the irrigation of lands in the Boulder Creek watershed and the return flow from such irrigation proceeds to Boulder Creek.

The water decreed to the ditch of Left Hand (Left Hand Ditch) for almost 100 years has been used upon lands, the return flow of which returns largely to Dry Creek and South St. Vrain Creek.1

The two mutual ditch companies have the same point of diversion out of Boulder Creek, being within the city limits of Boulder, and they utilize a common lateral for the first one and one-half miles from the point of diversion. Then, the ditch of each company proceeds from the lateral to the respective irrigated area served by each.

During the irrigation season, with the consent of Farmers, Left Hand is diverting and transporting in its ditch some of the water decreed to Farmers.2 If this diversion were not made, the historic return flow therefrom would be used by appropriators out of Boulder Creek, upstream from its confluence with South St. Vrain Creek. Absent this return flow Boulder must permit the same portion of its decreed water to remain in Boulder Creek in order to satisfy the decree of these intervening appropriators.

There has been no decree permitting the change of place of use of the water involved. In the absence of such a decree, the plaintiff contends that it is entitled to injunctive relief whereby Left Hand would be prohibited from diverting the water from the watershed in which it has been historically used.

The fundamental basis for the dismissal of the complaint by the water judge was the rulings of this court in Metro Denver Sewage v. Farmers Reservoir, 179 Colo. 36, 499 P.2d 1190 (1972), and Tongue Creek v. Orchard City, 131 Colo. 177, 280 P.2d 426 (1955). For reasons which we will later elaborate, these cases are distinguishable.

It has been fundamental law in this state that junior appropriators have rights in return flow to the extent that they may not be injured by a change in the place of use of the irrigation water which provides that return flow. The basic principles were stated in Farmers Highline Canal v. Golden, 129 Colo. 575, 272 P.2d 629, 631 (1954), as follows:

Farmers Highline stands for the proposition that any change of use will be granted only upon conditions which will prevent injury to junior appropriators. See Brighton Ditch Co. v. Englewood, 124 Colo. 366, 237 P.2d 116 (1951); Enlarged Southside Ditch Co. v. John's Flood Ditch, 116 Colo. 580, 183 P.2d 552 (1947); Fort Collins Milling Co. v. Larimer and Weld Irr. Co., 61 Colo. 45, 156 P. 140 (1916); and Vogel v. Minnesota Canal Company, 47 Colo. 534, 107 P. 1108 (1910). For present statutory provisions under the Water Right Determination and Administration Act of 1969, see sections 37-92-103(5), 304(3) and 305(3), C.R.S.1973. The substantive law here involved has not been changed by this statute.

The basic fallacy in the ground of decision used by the water judge is his statement, "there is no distinction . . . between waste water from irrigation and return flow water from irrigation. . . ." A typical example is that of the irrigator who turns water into individual furrows traversing his field. That portion which is not absorbed into the earth or transpires remains in the furrow at the end thereof, and is collected in a waste ditch. The contents of the waste ditch is waste water. When this waste water so collected runs in the waste ditch to the stream, the law is that one who appropriates the waste water from the stream cannot assert a right to have the irrigator continue to discharge the waste water into the stream. In Tongue Creek v. Orchard City, supra, Mr. Justice Lindsley aptly quoted from Kinney on Irrigation and Water Rights, 2nd ed., volume 2, page 1151, section 661:

As appears from the foregoing, Tongue Creek stands for the proposition that no permanent right can be obtained by the attempted appropriation of waste water. More specifically, in the absence of bad faith, an appropriator of waste water cannot obtain a right against the water waster to compel continuation of the waste water discharge. See Green Valley Co. v. Schneider, 50 Colo. 606, 115 P. 705 (1911).

Thus, at the time Metro Denver Sewage v. Farmers Reservoir, supra, arrived here, the posture of the law was that one could not change the point of diversion or place of use of irrigation water to the injury of a junior appropriator; but that an irrigator could cease wasting his water or change the point of discharge into the stream of waste water, despite the protests of those who had attempted to appropriate it.

In Metro Denver Sewage, the real party in interest, Denver, was discharging at a certain place the effluent from its sewage after treatment into the same river from whence the water was diverted by Denver. Then Denver changed the point of discharge downstream, thereby preventing—or at least hindering—the user of the effluent, who had been diverting it from the stream below the old point of discharge and above the new. Thus, we were asked to determine whether we would follow the rule that one cannot change the point of diversion or place of use to the injury of a junior appropriator or the other rule that the junior appropriator has no right to the continuance—or the continuance of the place of discharge—of waste water. We elected to follow the irrigation waste water rule, saying, "in the absence of bad faith or of arbitrary or unreasonable conduct, the [waste water] rule should be applicable to sewage waste or the effluent therefrom of a municipality or sanitation district."

Return flow is not waste water. Rather, it is irrigation water seeping back to a stream after it has gone underground to perform its nutritional function. As already indicated, the law makes no distinction between change of point of diversion and change of place of use so far as the rights of junior appropriators are concerned. We made it clear in Metro Denver Sewage that the change of point of return of waste water or effluent is not governed by the same rules as changes of point of diversion and place of use.

We are here involved with the effect of a change of place of use because return flow results from use and not from water carried in the surface in ditches and wasted into the stream. Under the allegations of the complaint, therefore, this case should be treated as one of change of place of use and not under the rules of Tongue Creek and Metro Denver Sewage. We do not speculate as to the extent to which Boulder may prove its case, but do rule that it is entitled under the complaint to its day in court.

We also comment concerning the argument of the ditch companies that, under Cache La Poudre Irr. Co. v. Larimer and Weld Res. Co., 25 Colo. 144, 53 P. 318 (1898), a mutual ditch company may change its place of use irrespective of injury to others. Counsel for the mutual ditch companies here take comfort in our reference to Cache La Poudre in Denver v. Just, 175 Colo. 260, 487 P.2d 367 (1971). In Denver v. Just we stated that we made no comment as to whether Cache La Poudre has been or should be modified and stated:

This might support the ditch companies' interpretation of Cache La Poudre that the law is not concerned with the transfer of irrigation waters from the land of one mutual ditch company shareholder to the land of another. Cache La Poudre did not so hold. The complaint in that case claimed injury from enlarged use, based upon alleged prior abandonment. This court simply held that prior use to lands of other shareholders was not an abandonment such that a changed use of the original shareholder's lands constituted an enlarged use to which juniors could object. As the facts there are entirely different from those pleaded in the complaint here, the rule in that case is not applicable to this one.

The judgment is reversed and the cause remanded with directions to overrule the motion to dismiss the complaint, and to proceed.