Upon rehearing, this is our response to a question certified to us by The United States Court of Claims in its case No. 105-75 pursuant to C.A.R. 21.1. The question so certified is:
In the light of the emphasized portion of the question and the posture in which we perceive the question was certified to us, our answer to the question is "No."
The parties stipulated that the Court of Claims should submit the interrogatory in the above form. It poses a question of rights to the quality and condition of water quite generally. It appears, however, that the issues before the Court of Claims in this connection are limited to silt presence. We, therefore, have distilled the question which we answer in the negative so that it reads as follows:
With the question, the Court of Claims submitted a statement of facts relating to the case before it, together with copies of pleadings, orders and other background information in the case. At oral argument on rehearing on October 23, 1978, this court permitted the filing of a May 1977 report of Norman K. Whittlesey entitled "Irrigation Development Potential in Colorado."
The plaintiffs in the proceeding commenced in the Court of Claims are The Bessemer Irrigating Ditch Company (a mutual ditch company here referred to as the Bessemer Co.) and its 956 stockholders. The suit was filed pursuant to 28 U.S.C. § 1491, claiming entitlement to an award of just compensation from the United States for the taking of the alleged property right of the plaintiffs to turbid, silt-laden water and the substitution of clear water therefor.
The Bessemer Co. operates the Bessemer Ditch. Prior to the construction of the Pueblo Reservoir, the headgate of the ditch was on the Arkansas River a few miles west of Pueblo, Colorado. The ditch proceeds in a generally easterly direction through Pueblo and a suburban area east of Pueblo, and reaches into an agricultural area. The main Bessemer Ditch is now about 35 miles long. In addition, there are 174 miles of laterals.
The ditch has decreed water rights totalling 392 cubic feet per second of time (c. f. s.), 70 of which have priority dates earlier than 1882. The remaining 322 c. f. s. have an 1887 priority date. About 400 stockholders, holding less than 3% of the stock, use the water for the irrigation of lawns, trees, shrubs and gardens in connection with their homes located in the Pueblo area. About 12% of the stock is used in the irrigation of truck gardens. The remainder of the stock is used in the irrigation of over 15,000 farm acres.
As a part of the Fryingpan-Arkansas Reclamation Project, the United States constructed Pueblo Dam across the Arkansas River a few miles west of Pueblo, creating Pueblo Reservoir. This inundated the headgate and first four miles of the Bessemer
Prior to construction of the reservoir, the United States brought a condemnation proceeding in the United States District Court for the District of Colorado against the Bessemer Co. for the taking of the headgate and the upper portion of the ditch. The complaint in condemnation named the designated acreage, the Bessemer Co. and "Unknown Owners" as defendants. The Bessemer Co. answered, alleging among other things, that the delivery of clear water instead of silty water would result in substantial damage to the individual stockholders. Subsequently, these shareholders brought the action in the Court of Claims, asking for damages of nearly $100,000,000, plus costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees. Thereafter, the United States District Court in the condemnation proceeding sustained the Government's motion to dismiss the action as to the silt issue without prejudice to determination of that question by the Court of Claims.
The Court of Claims in its statement of facts has given as the basis for the alleged damages the following:
The plaintiffs do not challenge the right of a junior appropriator to substitute water for their senior rights. See section 37-80-120, C.R.S.1973. Rather, their position is predicated upon subsection (3) of the statute just cited, which reads, "Any substituted water shall be of a quality and continuity to meet the requirements of use to which the senior appropriation has normally been put." They state that the clear water lacks the beneficial qualities found in silty water and will not spread as far as silty water. They further argue:
This leads us to the fundamental question as to whether the original appropriations for the Bessemer Ditch were for silty water. In our view the appropriations were for water, and not for water containing silt. Silt is not a component of water. Rather, it is suspended sediment which comes principally from the banks and bottom of an onrushing stream and which settles to the bottom when there is no longer movement of the water. Thus, there is far more sediment being carried in the waters of the Arkansas River during the flood season of late spring, than in the early spring or fall.
The "quality" requirement of the statute is not violated when a person slows down the movement of water, resulting in the settling of silt to the bottom and leaving only clear water for the senior appropriator.
There has not been cited any case holding that a senior appropriator has a vested right to the silt content of the water as of the time of his appropriation or at any other time. The cases cited by the plaintiffs basically fall into two categories: (1) where the appropriation of the junior appropriator reduced the amount of water available at the senior appropriator's point of diversion, causing the senior appropriator to receive less than he would have otherwise; and (2) where the water of the senior appropriator has been rendered unfit for the purpose of his appropriation by the addition of pollutants or other materials to the water. The trend and philosophy of Colorado law are contrary to the result asked by the plaintiffs. The Arkansas River is overappropriated; water is scarce; and conservation of water and prevention of wastage is the order of the day.
We said in Fellhauer v. People, 167 Colo. 320, 447 P.2d 986 (1968):
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:
Our answer in the negative to the question propounded by the Court of Claims is a part of the policy of this state that there should be maximum utilization of water and that the maximum utilization doctrine be integrated into the law of vested rights. Without the storage of water, the use thereof cannot be maximized.
It will be noted that in Colorado Springs v. Bender, supra, this court cited the United States Supreme Court in Schodde v. Twin Falls Land & Water Co., supra. Schodde diverted his water from a shallow canyon and up to his fields by means of water-driven water wheels. Later, others built a dam which slowed the flow until it would not drive the water wheels. Schodde claimed damages against the defendant dam builder. The United States District Court dismissed the complaint on the ground that Schodde's claim to the right to have his water wheels turn was not a reasonable attribute of an appropriation. The Court of Appeals affirmed, as did the United States Supreme Court, stating, "extent of beneficial use was an inherent and necessary limitation upon the right to appropriate." See Empire Water and Power Co. v. Cascade Town Co., 205 F. 123 (8th Cir. 1913).
In using its leaky ditches the Bessemer Co. has not attempted to make maximum utilization of the water. As was indicated in 1909 in a case involving the Bessemer Co. and its main canal (Middelkamp v. Bessemer Irrigating Ditch Co., 46 Colo. 102, 103 P. 280), the time may not yet have arrived when all ditches can be required to be lined or placed in pipes. Even assuming that that proposition of 1909 still holds true, this does not change our view that the plaintiffs do not have the right to use silt content to help seal leaky ditches. To view it otherwise would run contra to a basic principle of western irrigation that conservation and maximum usage demand the storage of water in times of plenty for the use in times of drought.
The fountain of Colorado water law is to be found in Colo.Const. Art. XVI, § 5 which provides:
Thus, our constitution makes water—not silt and not silt and water—the property which is subject to appropriation. Words used in the constitution are to be given "the natural and popular meaning in which the words are usually understood by the people who have adopted them." Prior v. Noland, 68 Colo. 263 at 267, 188 P. 729, 730 (1920). To the same effect, see People ex rel. Seeley v. May, 9 Colo. 80, 10 P. 641 (1885). Perhaps we need to look no further than this constitutional provision for our answer to the question propounded.
The effect of granting any particular appropriator a constitutionally-protected property right in the concentration of silt present in the water at the time of the appropriation would seriously inhibit any subsequent upstream or downstream appropriation. Upstream diversions or impoundments will result in alteration of the silt concentration to downstream users if only due to the slowing impact on stream velocity. Applied in its extreme, an appropriator located on lower reaches of a stream with a very early appropriation date could put a call on the river for the receipt of its natural silt concentration, which would have the practical effect of halting all upstream use and commanding substantially the entire stream flow to satisfy its appropriation.
The Government and amici argue that the Bessemer Co. cannot establish a right in silt because silt is a pollutant under the
The Whittlesey report was tendered to show that in certain areas the lining of ditches reduces water entering the aquifer from leaky ditches. This relates to the balancing of cost of lining ditches with loss of well water pumped from the aquifer. We do not regard the report as applicable to the subject here, i. e., the alleged right to suspended silt.
The question certified is answered in the negative.
LEE, ERICKSON and CARRIGAN, JJ., dissent.
ERICKSON, Justice, dissenting:
I respectfully dissent. Following a rehearing, Mr. Justice Kelley cast his vote in support of the opinion authored by Mr. Justice Groves, causing what was previously the majority opinion of this court to become the dissent. The majority opinion, by distilling the question certified to us, has, in my opinion, avoided the issue relating to the quality and condition of water which has been appropriated and put to beneficial use. I sincerely hope that this court will reconsider this issue in future years.
The United States Court of Claims certified the following question to this court, pursuant to C.A.R. 21.1:
I would answer the question with a qualified "yes." Qualifications are necessary because water quality on a historic basis cannot be determined with certainty.
The stipulated set of facts provides a foundation for the certified question which we have been called upon to answer. Issues relating to the value of the property taken, damages to the remainder and the offsetting benefits are not before us and necessarily should be resolved, in my opinion, by the Court of Claims.
On June 11, 1969, the United States initiated a condemnation action in the United States District Court for the District of Colorado as part of the Frying Pan/Arkansas reclamation project. The condemnation action was necessary to obtain property located on the proposed site of the Pueblo Reservoir. Included in the property condemned was the headgate and the upper 5.3 miles of the Bessemer Ditch.
In its answer in the condemnation action, the Bessemer Irrigating Ditch Company alleged that its stockholders would be injured not only by the proposed taking of its headgate and upper portion, but also by the proposed delivery of clear reservoir water in place of water containing the naturally-occurring silt in the water received under plaintiff's decreed right. The company's stockholders subsequently brought an action, pursuant to 28 U.S.C. § 1491, in the Court of Claims, seeking damages for the alleged taking of their property right in the natural quality of the water provided under their decreed right. Thereafter, the United States District Court for the District of Colorado granted the government's motion to dismiss the action concerning the silt issue without prejudice to determination by the Court of Claims.
The parties to the proceeding in the Court of Claims subsequently stipulated that the Court of Claims certify the question in the above form to this court. The Court of Claims complied and also submitted a detailed statement of the facts, the most pertinent of which follow:
The plaintiffs alleged that the substitution of clear water for the naturally-silty water of the Arkansas River increased seepage losses and reduced the water's irrigative capacity with the combined effect that the water rights irrigated only one-half of the land which had been irrigated before the change in water quality occurred. Clear water scours the ditch and causes it to leak. As a result, the same quantity of water cannot be put to beneficial use by the owners of decreed rights.
Colorado adopted the appropriation doctrine of water law in its Constitution. Colo. Const., Art. XVI, Secs. 5 and 6. Frequently referred to as the "first-in-time, first-in-right" system, the appropriation doctrine was considered most conducive to the economic development of semi-arid western states such as Colorado. The doctrine encouraged the expenditure of labor and resources with the promise that a decreed appropriation would receive legal protection.
In Coffin v. Left Hand Ditch Company, 6 Colo. 443 (1882), the court discussed the importance of the appropriation doctrine in Colorado:
Absent the assurance that validly appropriated water rights would receive legal protection, few persons could have made the substantial investments necessary to perfect a water appropriation.
The draftsmen of Colorado's Constitution, however, did not enumerate the components of a water right entitled to protection, nor specify which acts would be recognized as injurious to such rights. Consequently, the task of defining the substance of a water right fell to the courts and resulted in the adoption of several principles intended to afford appropriators the full benefit of the water which they had appropriated.
In Larimer County Reservoir Co. v. People, 8 Colo. 614, 9 P. 794 (1885), a case involving an onstream reservoir, this court declared that existing appropriations are entitled to protection against certain clearly specified types of injury:
Another principle intended to encourage the appropriation of water rights is that all decreed appropriators, whether junior or senior, are entitled to rely upon the continuation of stream conditions as they existed at the time the appropriation was made. Farmers' Highline Canal & Reservoir Co. v. City of Golden, 129 Colo. 575, 272 P.2d 629 (1954); Comstock v. Ramsey, 55 Colo. 244, 133 P. 1107 (1913); Vogel v. Minnesota Canal Co., 47 Colo. 534, 107 P. 1108 (1910). Persons seeking a change in water rights which will injuriously affect other rights, therefore, must propose the imposition of conditions to prevent such injury or be denied the right to make the change. City of Brighton v. Boulder Left Hand Ditch Co., Colo., 557 P.2d 1182 (1977); Farmers' Highline Canal & Reservoir Co. v. City of Golden, supra.
The importance of the protections afforded decreed appropriators is emphasized by the fact that irrigation appropriations are made by and for use of a specific tract of land, and only that amount of water reasonably necessary to irrigate that tract of land may be appropriated. Mountain Meadow Ditch & Irrigation Co. v. Park Ditch & Reservoir Co., 130 Colo. 537, 277 P.2d 527 (1954); Enlarged Southside Irrigation Ditch Co. v. John's Flood Ditch Co., 120 Colo. 423, 210 P.2d 982 (1949); Baker v. City of Pueblo, 87 Colo. 489, 289 P. 603 (1930); White v. Nuckolls, 49 Colo. 170, 112 P. 329 (1910); Colorado Milling & Elevator Co. v. Larimer & Weld Irrigation Co., 26 Colo. 47, 56 P. 185 (1899). In Baker v. City of Pueblo, supra, we declared:
Regardless of the amount of water which, according to his decree, an appropriator is allowed to divert, the amount which he is entitled to compel subsequent appropriators to leave in the stream is restricted to that amount which he has historically put to beneficial use. Larimer Co. v. Poudre Valley Co., 23 Colo.App. 249, 129 P. 248 (1912); Cache La Poudre Co. v. Supply Co., 29 Colo. 469, 68 P. 781 (1902); Vogel v. Minnesota Canal Co., supra. The core of an appropriator's protected expectations is that he will be able to continue to apply to beneficial use that amount and quality of water, within a reasonable range of acceptability, which he has historically applied. See Farmers' Highline Canal & Reservoir Co. v. City of Golden, supra.
The principles set forth in this dissenting opinion restricted the plaintiffs, and all irrigation appropriators in our state, to decrees that limited the quantity of water they could appropriate to that which was reasonably necessary to irrigate a specific tract of land. Since a change in water quality can affect the irrigative capacity and utility of a specific quantity of water appropriated, our courts have consistently recognized that appropriators are entitled to protection against detrimental changes in water quality. Larimer County Reservoir Co. v. People, supra. The question of what constitutes a "diminution" in the quality of water must, therefore, be analyzed in terms of the use to which the water is put. An appropriator's expectations can just as easily be defeated by altering the quality of water as by changing the quantity. Thus, one aspect of an appropriation is the right to continue to receive water of the quality upon which the appropriator relied in making his appropriation. Because the defendants in this case altered the quality of the water which the plaintiffs receive, plaintiffs have been deprived of a quantity of water which they historically received and put to beneficial use.
Acceptance of the United States' argument that a Colorado water right does not entitle its holder to the naturally-occurring silt present in a natural stream, within a reasonable range of acceptability, would require us to declare that the plaintiffs and other appropriators who hold decrees to specific quantities of water should have originally appropriated that quantity of naturally-silty water which, absent the silt, would reasonably irrigate their lands. Yet, any attempt to obtain a decree for a quantity in excess of actual needs, in anticipation of a change in water quality, would have been properly denied. Baker v. City of Pueblo, supra. We should not alter well-established principles of water law to the detriment of those who have reasonably relied upon the promises inherent in the appropriation doctrine.
Although the various property components of a Colorado water right are not specifically enumerated in our Constitution, statutory law, or case law, the substance of the right is indicated and defined by the protections afforded against specific types of injury. Protection against diminution of water quantity is most easily recognized. If a junior appropriator causes a reduction in the quantity of water delivered to a senior appropriator, the injury is obvious. Similarly, a change in the water's natural quality, which denies existing appropriators the full measure of their rights, whether by the addition of a pollutant or by the removal of a naturally-occurring element such as silt, also constitutes injury.
The heart of the majority opinion is to be found in its statement that:
The discussion of Schodde v. Twin Falls Land & Water Co., 224 U.S. 107, 32 S.Ct. 470, 56 L.Ed.2d 686 (1911), and the citation of Empire Water & Power Co. v. Cascade Town Co., 205 F. 123 (8th Cir. 1913), indicates the reasoning behind the majority opinion.
The majority's decision is based upon its perception that the natural consequence of any diversion is a reduction in the velocity of water. The result of a reduction in water velocity is the precipitation of the solids suspended in that water. Thus, the majority opinion, in my view, represents only a limited holding that a prior appropriator cannot claim compensation for damages which result from the natural and inescapable consequences of a diversion by a junior appropriator who employs usual methods of diverting water.
The methods of diversion which were considered in Schodde v. Twin Falls Land & Water Co., supra, and Empire Water & Power Co. v. Cascade Town Co., supra, could not fulfill the decreed water right unless the natural volume and flow of the stream from which the water was diverted remained unchanged. Such methods of diversion are not compatible with principles of maximum utilization of water. But those diversion systems were based upon unique fact situations. The appropriator in Schodde v. Twin Falls Land & Water Co., supra, depended upon the movement of the water in the stream to turn a paddlewheel which pumped water into his ditches. The appropriator in Empire Water & Power Co. v. Cascade Town Co., supra, relied on the vapors from a natural waterfall to water plants placed upon the walls of a canyon. The plaintiffs in this case employ earthen ditches—the customary method of diverting water in this and most other jurisdictions.
The United States and the majority rely heavily upon principles enunciated in cases concerned with preventing inefficient diversions and encouraging the maximum utilization of scarce water resources. Schodde v. Twin Falls Land & Water Co., supra; Empire Water & Power Co. v. Cascade Town Co., supra; Fellhauer v. People, 167 Colo. 320, 447 P.2d 986 (1968); City of Colorado Springs v. Bender, 148 Colo. 458, 366 P.2d 552 (1961).
The essence of this argument is contained in the following excerpt from the United States' brief:
The importance of the principles relied upon by the United States cannot be overemphasized. Appropriators are not entitled to command the flow of an entire stream to effect an inefficient diversion. In Fellhauer v. People, supra, we committed this court to the concept of maximum utilization of water resources, subject to the condition that an appropriator could not be required to improve extraction or diversion facilities beyond his economic reach, in the light of all factors relating to the use and the proposed changes which would bring about a more efficient use.
But principles of maximum utilization have never been held to require that appropriators achieve absolute efficiency when they divert water and apply it to beneficial use. See Colorado Springs v. Bender, supra; Middlekamp v. Bessemer, 46 Colo. 102, 114-115, 103 P. 280 (1909); State ex rel. Crowley v. District Court, 108 Mont. 89, 88 P.2d 23, 27 (1939); Worden v. Alexander, 108 Mont. 208, 90 P.2d 160, 162 (1939); Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 276 P. 1017, 1024-1025 (1929); Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, 3 Cal.2d 489, 45 P.2d 972, 1009-10 (1935). But see, Glenn Dale Ranches, Inc. v. Shaub, 94 Idaho 585, 494 P.2d 1029 (1972). "Maximum utilization" is not an incantation to be recited without regard for the realities faced by Colorado appropriators. This court should take notice of the fact that the great majority of the decreed water rights in Colorado are diverted through earthen ditches. We should refuse to hold that this widespread practice is per se unreasonable. See Middlekamp v. Bessemer, supra, where this court recognized that Bessemer's ditch was constructed in the ordinary and usual manner and that seepage is a necessary result because of the character of the land. The suggestion in the majority opinion that this court should require all Colorado appropriators to line their ditches is beyond our power and would have far-reaching consequences for a large number of farmers in this state.
The water which seeped through plaintiffs' ditch before construction of the Pueblo Dam was not "wasted," as the majority suggests, although it is unavailable for use by the plaintiffs. The water, so long as it was diverted and transported for application to beneficial use within the drainage basin of the Arkansas River, became part of the return flow of that stream. The clear water now supplied by defendant, because it lacks its natural silt content, escapes from plaintiffs' ditch in greater quantities than it did before the Pueblo Dam was constructed. That water, too, becomes part of the return flow of the Arkansas River. But it is made unavailable for its intended and historic use by the plaintiffs because it returns at an earlier time and in increased amounts to the Arkansas River and, therefore, cannot be put to the historic beneficial use.
Moreover, it has been suggested that lining ditches may actually reduce the amount of water available to Colorado appropriators. Water which now seeps into the ground and is stored in underground aquifers during its return to the stream may, if ditches are lined, have to be stored in above-ground reservoirs until it is needed, with accompanying increased evaporation
The principles enunciated in Schodde v. Twin Falls Land & Water Co., supra, cannot be extended to the factually-distinguishable situation presented in this proceeding. The plaintiffs do not seek to command the entire flow of the Arkansas River or the right to maintain the velocity of the stream to effect a diversion of naturally-silty water. Rather, they seek only that to which they are entitled under our appropriation system: the quantity of water under their decreed rights in its natural quality, within a reasonable range of acceptability. Only that quantity of water need be permitted to flow in the stream and maintain its natural quality.
The amount of silt suspended in the naturally-flowing waters of our natural streams necessarily varies according to the extent of appropriation, the season, the quantity and velocity of water in the stream, and the geological "age" of the stream. Junior appropriators reduce the water velocity and cause the silt concentration to decrease. Return flow, however, may increase the degree of silt concentration. Regardless of whether junior appropriators cause a net increase or decrease in silt concentration, senior appropriators cannot demand that a specific quantity of silt be present in the water which they divert and apply to beneficial use. It would violate the principle of maximum utilization of our scarce water resources to allow an appropriator to insist upon a particular quantity of silt in the water which he appropriates.
An appropriator who has diverted water and applied it to beneficial use has not thereby secured a right to have any particular amount of silt suspended in the water to which he is entitled. Silt is not a property right, but it is one measure of water quality. It is impossible to state with certainty how much silt a particular appropriator is entitled to demand, but an appropriator has the right to receive water which is within a reasonable range of acceptable quality.
To come within the purview of this court's principle of maximum utilization, an appropriator's method of diversion must be reasonably efficient. The necessary degree of efficiency cannot be expressed in a single equation. In determining whether a diversion system is reasonably efficient, an issue exists as to whether the earthen ditches are well-constructed and maintained and conform to the conditions and customs of the locality where the water diversion occurs and is applied to beneficial use. See Middlekamp v. Bessemer, supra.
If the plaintiffs' ditch was inefficient before construction of the Pueblo Dam, the plaintiffs cannot rely upon the continuing presence of the natural silt in the stream to maintain an inefficient method of diversion. Senior and junior appropriators have reciprocal duties which derive from their relative positions. One of the obligations imposed upon plaintiffs is that they not maintain an inefficient method of diversion to the detriment of a junior appropriator's right to divert and apply water. Fellhauer v. People, supra. But junior appropriators cannot act in such a way that a senior appropriator's decreed water right becomes no more than an empty promise. Plaintiffs' "right is to divert and use the water, not merely to have it left in the streambed." State ex rel. Crowley v. District Court, 108 Mont. 89, 88 P.2d 23, 27 (1939).
Senior appropriators cannot demand that a quantity of water in excess of that necessary to satisfy their decrees remain in the stream to maintain an acceptable concentration of silt. Senior appropriators are,
In my opinion, the question certified to this court should be answered in the affirmative.
LEE and CARRIGAN, JJ., have authorized me to say that they join me in this dissent.
Similarly, section 37-92-305(5), C.R.S.1973, provides:
The substituted water statutes are not applicable to this case, but deal with related problems and the issue of water quality.
"Fundamental among the principles applicable here is the rule that a junior appropriator may not divert the water to which he is entitled by any method or means the result of which will be to diminish or interfere with the right of a senior appropriator to full use of his appropriation." (Emphasis added.)