Metropolitan Denver Sewage Disposal District No. 1 v. Farmers Reservoir & Irrigation Co.

MR. JUSTICE ERICKSON

dissenting.

I respectfully dissent.

The record reflects that plaintiffs have appropriative rights to water from the South Platte River and that plaintiffs’ point of diversion is located downstream from Denver. Plaintiffs’ water rights are based on decrees with priority dates ranging from 1885 to 1922. Like nearly all decreed rights to water diverted from the South Platte River downstream from Denver, plaintiffs’ rights historically were dependent to a large extent upon return flow of waste and seepage waters. See Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107 (1913).

Prior to the commencement of operations at the Northside Plant in 1937, Denver sewage contributed to the return flow relied upon by plaintiffs. During the period that the Northside Plant was in operation, Denver sewage was still available to satisfy plaintiffs’ decreed rights, since the effluent from the Northside Plant was discharged into the river above plaintiffs’ headgate and was part of the stream. More recently, however, Denver’s sewage has been processed at the Metropolitan Sewage Plant and the effluent has been discharged into the river below plaintiffs’ headgate. Because of the change in the point of return, plaintiffs’ decrees are *45now substantially unfilled.

Without doubt, Denver is responsible for the changed conditions on the river which have caused the injury sustained by plaintiffs. Whether or not Denver is obligated to take such steps as may be necessary to prevent injury and to protect the plaintiffs is dependent upon the nature and extent of the rights acquired by the plaintiffs pursuant to their decrees.

Plaintiffs contend that as appropriators with decreed rights to return flow waters of the South Platte River, they have vested rights in the continuance of conditions on the South Platte River as they existed at the time they made their appropriations. Denver v. Colorado Land & Livestock Co., 86 Colo. 191, 279 P. 46 (1929); see Farmers Highline Canal & Res. Co. v. Golden, 129 Colo. 575, 272 P.2d 629 (1954); Vogel v. Minnesota Canal & Res. Co., 47 Colo. 534, 107 P. 1108 (1910); Handy Ditch Co. v. Louden Irr. Canal Co., 27 Colo. 515, 62 P. 847 (1900). See also A Survey of Colorado Water Law, 47 Denver L. J. 226, 249, 251 (1970). They argue that any change in the exercise of a water right which alters the existing conditions on the stream to the prejudice of an appropriator with a decreed right to water from the stream is illegal. The majority of the court does not dispute the applicability of the principle of law relied upon by plaintiffs when gauged by our cases which relate to change in point of diversion. However, the majority opinion holds the principle to be inapplicable to this case because this case involves a change in point of return.

One of the earliest cases which considered the relative rights of appropriators was Sieber v. Frink, 7 Colo. 148, 2 P. 901 (1883). In Sieber v. Frink, supra, the question was whether an appropriator could change his point of diversion without affecting his right of priority, where no change was made in the quantity of water diverted and no one was injured by the change. The court held that such a change was permissible and thereby dispelled the view that any change in the .exercise of a water right was illegal.

Thereafter, in Fuller v. Swan River Placer Min. Co., 12 *46Colo. 12, 19 P. 836 (1888), the court was presented with the question of whether a change in point of diversion could be made for the purpose of changing the place of use. Again, the court held that such a change was permissible, as long as other appropriators from the same water source were not injured by the change. In reaching its conclusion, the court relied on Kidd v. Laird, 15 Cal. 161 (1860), and said:

“We think that the rule announced in Kidd v. Laird, ‘that, in’ the absence of injurious consequences to others, any change which the party chooses to make is legal and proper,’ is the only rule under which the rights of the prior appropriator can be fully exercised, and his rights, and the rights of all other persons, fully protected.”

Although the Kidd case involved a change in point of diversion and a change in place of use, it is clear from the language of the court and the authorities cited that the rule announced therein was not limited to cases involving a change in point of diversion. Rather, the court set forth guidelines applicable to any change which an appropriator might make in the mode or manner of use of his water right.

By adopting the rule announced in the Kidd case, the Colorado court greatly expanded the right of an appropriator to change the mode or manner in which he utilized his water right. At the same time, the court continued to subject any change in the exercise of a water right to the limitation that such change could only be undertaken in the absence of injurious consequences to other appropriators with vested rights. The conclusion to be drawn from the Kidd case is that cases such as this, which involve a change in point of return are not to be resolved on the basis of the change made. Rather, “the effect of the change upon the rights of others is the controlling consideration. . . .” Kidd v. Laird, supra. Failure to apply the rule set forth in the Kidd case, and later followed in the Fuller case and in Strickler v. Colorado Springs, 16 Colo. 26 P. 313 (1891), discredits the claim made by the court in Fuller that the rule adopted is the only rule under which the rights of all persons can be fully protected.

The majority opinion has concluded that there is no vested *47right in downstream appropriators to the maintenance of the same point of return for sewage waste or effluent that has become part of the stream. In my opinion, the cases cited to reach this result are distinguishable and do not support the conclusions. None of the cases which are cited in the majority opinion involved, in my opinion, downstream appropriators who had decreed rights.