Title: Whitten v. Coit - Supreme Court of Colorado En Banc, Sept 9, 1963
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Title: Whitten v. Coit - Supreme Court of Colorado En Banc, Sept 9, 1963
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Language: English
Publisher: 385 Pacific Reporter, 2d Series
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Whitten v. Coit - Supreme Court of Colorado En Banc, Sept 9, 1963 ( JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 9
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Full Text



WHITTEN v. COIT
Cite as 385 P.2d 131


h fore it undertakes to annex Smith's prop-
,.-:y which becomes contiguous to the mu-
::icipality by virtue of the alleged invalid
nationatio, but with which Smith then
becomes trapped by the narrow construc-
:ion of what constitutes "any person ag-
,rieved." He is powerless to assert in-
validity because he is by interpretation held
to be a person not aggrieved, and after
:he ninety days the annexation becomes
:::contestable.
By this process Smith's property becomes
contiguous through an alleged invalid an-
::exation, against which he can make no
r'test, and his property is subject to
'i',:! attached to the city in a subsequent
annexationn.
I would hold Smith to be a "person
grievedved" See my dissent in City and
t:ounty of Denver v. Miller, 151 Colo.
-,379 P.2d 169.



O KEY UMBER SYSTEM





J. E. WHITTEN, State Engineer of Colorado,
Frederick Paddock, Irrigation Division En-
gineer of Irrigation Division No. 4, Wood-
row W. Saunders, Water Commissioner of
Water District No. 42 of the State of Colo-
rado, Plaintiffs in Error,
v.
Lincoln D. COlT, Executor of the Estate of
M. Humphries, Deceased, J. Lewis Ford,
et al., Defendants in Error.
No. 20032.
Supreme Court of Colorado.
En Bane.
9, 1963.


Action by landowners to enforce prior
judicial decree in adjudication proceedings
-especting rights in underground water.
the District Court of Mesa County, George
V. Kempf, J., entered a judgment for the
Plaintiffs and some of the defendants
brought error. The Supreme Court, Moore,



Icr-


J., held that judicial decree rendered in ad-
judication proceedings prior to enactment
of Ground Water Act and under which
court purported to award priorities of right
to use underground waters which were not
tributary to any natural stream were void
for want of jurisdiction over subject matter
and for lack of power to adjudicate such
rights.
Reversed and remanded with directions
to dismiss action.
Hall, J., dissented.


1. Waters and Water Courses e=128
Water rights adjudication statutes are
not designed or intended to apply to wells
drawing water from closed artesian basin
from a supply which is not tributary to any
stream. C.R.S. '53, 147-9-1, 147-13-1.

2. Waters and Water Courses C128
In enacting Ground Water Act, Gen-
eral Assembly purposely excluded nontrib-
utary underground water from coverage
under doctrine of appropriation. C.R.S.
'53 Supp. 147-19-9, 147-19-10; C.R.S. '53,
147-19-2.

3. Waters and Water Courses =130
Legislature in adopting Ground Water
Act, contemplated that under statute there
would be an equitable and efficient use of
nontributary underground water not pur-
suant to any theory of appropriation. C.R.
S. '53 Supp. 147-19-10.

4. Waters and Water Courses =0106
Purpose of Ground Water Act is to
prospectively protect underground waters
and prevent waste in their production, dis-
tribution and use, and Act deals with man-
ner of construction of wells to prevent
waste. C.R.S. '53 Supp. 147-19-10.

5. Waters and Water Courses 0106
Under Ground Water Act, state engi-
neer has no duties whatever with reference
to existing wells at time of enactment of
legislation, except to provide for their reg-
istration. C.R.S. '53, 147-19-2; C.R.S. '53
Supp. 147-19-9.


Colo. 131


I _








385 PACIFIC REPORTER, 2d SERIES


6. Waters and Water Courses 0=130
Doctrine of prior appropriation of wa-
ter to beneficial use is not applicable to
underground waters which are not tributary
to any natural stream. Const. art. 16,
5,6.

7. Waters and Water Courses S=133
Judicial decree rendered in adjudica-
tion proceedings prior to enactment of
Ground Water Act and under which court
purported to award priorities of right to
use underground waters which were not
tributary to any natural stream were void
for want of jurisdiction over subject mat-
ter and for lack of power to adjudicate such
rights. C.R.S. '53 Supp. 147-19-10.

8. Judgment Validity of judgment depends on court's
jurisdiction of person and of subject matter
of particular issue it assumes to decide.

9. Courts =1
Judgment 0-7, 349, 489
Term "jurisdiction" includes court's
power to enter judgment, and entry of de-
cree which court has no authority to enter
is without jurisdiction and void and may be
attacked directly or collaterally.
See publication Words and Phrases
for other judicial constructions and
definitions.



Duke W. Dunbar, Atty. Gen., Frank E.
Hickey, Deputy Atty. Gen., John B. Barn-
ard, Jr., Sp. Asst. Atty. Gen., Denver, for
plaintiffs in error.
Albin Anderson, Grand Junction, for de-
fendant in error J. Lewis Ford.
Smith, Holmes, Williams & Turner,
Traylor, Ela, Kladder & Harshman, Reams,
Uhrlaub & Carter, Grand Junction, for
certain defendants in error joining in the
brief of the Attorney General.

MOORE, Justice.
The controversy now presented for de-
termination was before this court in an
-original proceeding entitled Prinster et al. v.


District Court, 137 Colo. 393, 325 P.2d 938.
A majority of the court determined that the
controlling question should not be decided
in an original proceeding and that the cause
should proceed to final judgment to which a.
writ of error should be directed.
A statement of the facts pertinent to our
present inquiry is set forth in Prinster et al.
v. District Court, supra, as follows:
"In 1948 the District Court of Mesa
County entered its decree in a general
water adjudication proceeding and
granted decreed priorities to eighteen
claimants for the use of water from an
alleged aquifer for domestic purposes.
That decree became final nearly ten
years ago. No review thereof has ever
been sought in the trial court or this
court. On January 8, 1957, eight of the
above mentioned claimants, who were
decreed priorities in the 1948 adjudica-
tion proceedings, commenced an action
in the District Court of Mesa County,
Civil Action No. 10599, naming as de-
fendants (1) twenty-eight persons or
firms, none of whom had any decreed
rights, but who it is alleged have wells
and are taking water from the aforesaid
aquifer; (2) ten of the above men-
tioned eighteen claimants, decreed
owners of water, who refused to join
as parties plaintiff and were therefore
made parties defendant; (3) three
water officials of the state of Colorado,
and (4) all unknown persons who claim
any interest in the subject matter of
the action.
"The purpose of the action was to
(1) obtain a mandatory injunction re-
quiring the state engineer and his depu-
ties to recognize and enforce the 1948
decree; (2) to enjoin those defend-
ants who had no decreed rights from
diverting water from the aquifer, and
(3) to require the owners of all wells
taking water from the aquifer to prop-
erly cement and equip them to the end
that water not be wasted and lost.
"A motion to dismiss the action was
filed in behalf of 'the defendants here-


- II-Y*I~I~C-L~


F _FOPFROMMIX pm ~-s~ ww "-nIm -Rw n will-~


132 Colo.







Colo. 133


WRITTEN v. COIT
Cite as 385 P.2d 131


in who are represented by their re-
spective attorneys.' The record does
not disclose who of several defendants
joined in the motion.
"The reason assigned for dismissal
is:
'That this Court has no jurisdiction
of said supposed cause of action set
forth in the Complaint herein for the
reason that the purported decree of this
Court of August 23, 1948 was
null and void and without the powers
of this Court under the Constitution
and Statutes of this State.' (Emphasis
supplied.)
"The attorney general, in behalf of
the three state officials, filed a motion
to dismiss and assigned as reason there-
for: '* the complaint does not
state a claim against these defendants
upon which relief may be granted.'
"On May 25, 1957, Judge Hughes
denied defendants' motions and granted
them twenty days to answer, and on
October 7, 1957, denied the motion to
dismiss filed in behalf of the state of-
ficials and at that time ordered all de-
fendants to *answer within
ten days from the receipt of this Order,
unless some Defendant desires to stand
on Motion to Dismiss and if so, a writ-
ten statement to that effect be filed
with the Court within said ten day
period.' (Emphasis supplied.)
"None of the defendants elected to
stand on their motions to dismiss and
none answered."
Thereafter certain of the defendants insti-
tuted the original proceedings hereinabove
mentioned.
Following announcement of the opinion
in Prinster v. District Court, supra, a joint
answer was filed by twenty of the named
defendants and a separate answer was filed
on behalf of the W. F. McCoy Company.
The action was tried to the court and
upon the evidence adduced, the trial court
entered its Findings of Fact, Conclusions of


Law, Judgment and Decree which includes,
inter alia, the following:
"1. The underground waters are
public and subject to private appropria-
tion by putting to beneficial use, and
the decree adiudicating priorities is
valid."
The "decree adjudicating priorities" to
which reference is made by the trial court
is the decree entered in the 1948 adjudica-
tion proceedings, being Civil Action No.
10599 in the district court of Mesa county,
Colorado. By this 1948 decree, which pur-
ported to grant priorities to certain wells,
the following determination of pertinent
facts was made:
"The wells involved in this proceed-
ing are bottomed in three separate and
distinct sands: the upper sand is known
as the Morrison Sand, the second sand
down is known as the Entrada Sand
and the bottom sand as the Wingate
Sa:d. These sands have no connection
with each other and are separated by
an impervious structure so that no
water seeps or percolates from one to
the other. The water contained in these
sands is not tributary to any natural
surface stream. *" (Emphasis
supplied.)
The trial court in the instant action ad-
judged, inter alia:
"1. That the decree entered in Civil
Action No. 7327 in this Court on Au-
gust 23, 1948 is valid and in full force
and effect as a decree fixing priorities
for the use of public waters in the
Entrada, Morrison and Wingate sand-
stones underlying lands in Mesa Coun-
ty, Colorado.
"2. That defendants J. E. Whitten,
State Engineer of Colorado; Frederick
W. Paddock, Irrigation Division En-
gineer of Division No. 4; and Wood-
row W. Saunders, Water Commissioner
of Water District No. 42, are hereby
ordered to control and administer said
underground waters and wells in the
same manner and to the same purpose
as in the case of diversions from public







385 PACIFIC REPORTER, 2d SERIES


streams of the State of Colorado. In
particular, but without limitation there-
to, they shall require persons owning or
possessing such wells to do the fol-
lowing:
"(a) To install shutoff valves or de-
vices to enable the flow to be
cut off.
"(b) To case and cement each well
or take such other action as is
necessary to prevent the run-
ning of water from one forma-
tion to another.
"(c) To cease all waste of water
from such wells after it reaches
the surface.
"(d) To install a meter on each well
to measure the quantity of wa-
ter taken therefrom.
"(e) To allow the performance of
such tests or measurements as
may be required to determine
from time to time the hydro-
static head or other facts con-
cerning such well;
and said officials shall make and main-
tain records of the date obtained by
them regarding each such well."
In addition to the above quoted order
on the state officers, the trial court enjoined
numerous other defendants from,
"Taking water from any well or al-
lowing the same to flow from such well
when such depletion of water shall
cause the owners of senior decreed
water rights to be unable to divert
their decreed amounts of water by
pumping from a well extending through
the depth of the formation from which
said water is decreed."
Other restraints not here material were
placed upon said defendants.
The only plaintiffs in error who seek
reversal of the judgment, or any part there-
of, are the State Engineer and subordinate
water officials who take exception to the
mandate of the trial court that they shall,
" control and administer said un-


derground waters and wells in the same
manner and to the same purpose as in the
case of diversions from public streams of
the State of Colorado." All those persons
who were defendants in the trial court and
who do not join as plaintiffs in error were
named as defendants in error and are par-
ties to the action in this court. The plain-
tiffs in the trial court are also named as de-
fendants in error. Only one of them,
namely J. Lewis Ford, has appeared in
this court to contest the issues raised by
the attorney general on behalf of the state
officials.
We are dealing here with waters which
are admittedly not tributary to any natural
stream. The purported decree of 1948
specifically so found; and it is conceded
by the parties in the instant action that the
waters contained in the aquifers involved
are not waters which would ever become
a part of any natural stream. In the pre-
trial conference memorandum dated June
10, 1959, the trial court recited that the
waters involved were, "* not
tributary to any stream *." In the
final judgment and decree the trial court
said, inter alia, "The basin, which is closed,
is very large, and some of the aquifers are
very thick." (Emphasis supplied).
Counsel for J. Lewis Ford, the only party
to the action in this court who appears to
dispute the position taken by the attorney
general, makes the following statement as
definitive of the issue for determination:
"Ford is agreeable to resting the ap-
peal on the questions of (1) whether
the District Court had jurisdiction to
give him a decree for water, not
tributary to a stream, out of a con-
fined aquifer and (2) whether the
District Court can call on the State
Engineer to assist in enforcing its
sanctions against junior wells having
no decrees. "
The controlling question which we are
called upon to determine is, whether the
doctrine of prior appropriation of water
to beneficial use is applicable to under-
ground waters which are not tributary to


----~d


134 Colo.







Colo. 135


WRITTEN v. COIT
Cite as 385 P.2d 131


any natural stream, and so results in a
priority of right to the water thus used.
The constitution of the state of Colorado
(Article XVI, Section 5) provides:
"The water of every natural stream,
not heretofore appropriated, within the
state of Colorado, is hereby declared to
be the property of the public, and the
same is dedicated to the use of the
people of the state, subject to appro-
priation as hereinafter provided."
(Emphasis supplied)
Section 6 of said Article in pertinent part
reads as follows:
"The right to divert the unappro-
priated waters of any natural stream
to beneficial uses shall never be denied.
Priority of appropriation shall give
the better right as between those using
the water for the same purpose; but
when the waters of any natural stream
are not sufficient for the service of
all those desiring the use of the same,
*". (At this point the section
names certain uses in the order of
their preference.) (Emphasis sup-
plied)
Thus the constitutional provisions referred
to make specific reference in recognizing
the "appropriation" doctrine only to the
waters in "natural streams."
C.R.S. '53, 147-11-1 to 6 provide for the
appointment of a state engineer and define
his duties. We direct attention to a few
pertinent passages from this chapter as
follows:
147-11-3:
"The state engineer shall have gen-
eral supervising control over the public
waters of the state. [The public waters
of the state as defined by the constitu-
tion are the waters in "natural
streams".] He shall make or cause to
be made careful measurements of the
flow of the public streams of the state
from which water is diverted for any
purpose, and compute the discharge of
the same." (Emphasis supplied).


In 147-11-6 we find:
"The state engineer shall perform all
duties imposed upon him by law, and
when called upon by the governor,.
shall give his counsel *."
[1] Our water adjudication statute was
adopted in 1943. A careful examination of
the sections thereof leads to the conclusion
that they were not designed or intended to
apply to wells drawing water from a closed
artesian basin from a supply which is not
tributary to any stream. For example in
147-9-1 the term "court" is defined as the
court having jurisdiction of the adjudica-
tion of water rights in a particular water
district. 147-13-1 provides that water dis-
tricts are established to include lands ir-
rigated from ditches "taking water from
the following described rivers or natural
streams of the state of Colorado *."
(Emphasis supplied) The entire plan of
the water adjudication act is based on the
concept of "rivers and natural streams."
In Safranek et al. v. Town of Limon, 123
Colo. 330, 228 P.2d 975, it was held that
there is a presumption that underground
water is tributary to a natural stream in the
watershed in which it is found and that he
who asserts that underground water is not
tributary to a stream has the burden of es-
tablishing that fact. In the absence of such
evidence the presumption prevails. From
the opinion in that case we quote the fol-
lowing:
"Had it been established by the
record in this case that the water
diverted by the town was nontributary
ground water, such as an underground
lake, the waters of which are not a part
or source of a natural stream, still the
above-quoted statement upon which
counsel for respondents base their
claim of ownership of the water would
not be a correct statement of Colorado
law. [The statement referred to was
that sub-surface waters not tributary
to any stream are the property of the
owners of the land as at common law.]
*. Whether in such case we
should follow the California doctrine








385 PACIFIC REPORTER, 2d SERIES


of reciprocal rights, or wheth-
er we should extend one step further
our Colorado doctrine of first in time,
first in right, need not now be deter-
mined. *"
It is also stated in Safranek that if there
had been proof that the waters there in-
volved were nontributary, "* we
would, in such case, be confronted with the
question upon which there is an absence of
statutory law in Colorado as well as of di-
rect decision by our courts. *"
[2] The Safranek opinion was an-
nounced March 5, 1951, and the Colorado
Ground Water Act was thereafter adopted
in 1957. The story behind that statute
and an understanding of the original form
m which it was presented to the legislature
and the drastic changes which were made
in it before-adoption, will lead inescapably
to the conclusion that the general assembly
painstakingly and purposely excluded non-
tributary underground water from coverage
under the doctrine of appropriation. We
think it important to briefly trace the legis-
lative history of the Ground Water Law of
1957.
Senate Bill 113, (Colorado Ground Water
Law), as originally printed and introduced
in the Colorado Senate, contained, inter alia,
these significant provisions:
"1. AN ACT RELATING TO
WATER, RELATING TO THE
PRODUCTION, DISTRIBUTION,
AND USE OF UNDER GROUND
WATER; REGULATING AND
PROTECTING SUCH PRODUC-
TION, DISTRIBUTION AND
USE; PROVIDING FOR THE
SETTLING OF THE PRIORITY
OF RIGHTS TO SUCH USE;
CREATING A GROUND WATER
COMMISSION; PROVIDING
FOR THE REGULATION OF
DRILLING WELLS; PROVID-
ING PENALTIES FOR VIOLA-
TION OF THIS ACT; AMEND-
ING SECTION 147-2-1, COLO-
RADO REVISED STATUTES
1953; REPEALING ARTICLE 18


OF CHAPTER 147, COLORADO
REVISED STATUTES 1953; AND
REPEALING ALL OTHER ACTS
OR PARTS OF ACTS IN CON-
FLICT HEREWITH. (Emphasis
supplied)
"2. SECTION 12. Priority in time
shall give the better right as be-
tween appropriators of ground water.
The use of ground water may be
curtailed in the manner hereinafter
provided when such use may, and to
the extent that it does, materially
and unreasonably affect the rights of
senior appropriators. In any pro-
ceeding before any officer, board,
commission or court between surface
and ground water users, there shall
be no presumption that any ground
water either is or is not tributary
to any surface stream, and in the
determination of whether the use
of ground water in any case should be
so curtailed, the only consideration
shall be whether or not the use does
so materially and unreasonably af-
fect the rights of senior appro-
priators, which question shall be de-
termined in accordance with the
facts as they may appear to be and
without resort to any presumption
or burden of proof. As among ap-
propriators of ground water, a senior
has no right to a continuation of the
ground water level that existed at
the time he made his appropriation,
but has the right to a continued
flow of water from the aquifer from
which his appropriation derives its
supply, in such quantity, quality and
at a level which will not materially
injure the senior appropriator.
"Whenever the commission shall de-
termine, upon recommendation by
the district advisory board or upon
demand of an aggrieved appro-
priator, that withdrawals of ground
water within a restricted district
materially and injuriously affect the
rights of senior appropriators of


~C~


_ ~I(I ~I __


136 Colo.








Colo. 137


WRITTEN v. COIT
Cite as 385 P.2d 131


ground water, the state engineer shall
either limit such withdrawals in the
inverse order of the dates of such
priorities, or impose such terms and
conditions upon continued use as may
be agreed upon by consultation with
the district advisory board.
"Whenever the state engineer shall
make an order limiting withdrawals
by priority or by imposing terms as
hereinabove provided, upon request
of any appropriator affected by this
order, the commission shall hold a
hearing to hear all pertinent objec-
tions to the order and at the conclu-
sion of the hearing, the commission
shall affirm the order or modify the
same in such particulars as it may
determine. Such hearing, if need be,
may be continued from day to day
in order that all pertinent facts may
be presented to the commission for
its consideration.
"Whenever the commission places a
ground water aquifer on priorities,
or limits a ground water use for the
benefit of a senior appropriator or
appropriators, any ground water user
aggrieved by such order may petition
the district court having jurisdiction
over the adjudication of surface
waters wherein his well is located to
determine the extent of the aquifer
from which he draws water, the
relative priority dates of all appro-
priators drawing therefrom and the
effects of such uses upon other
ground water rights. Such adjudica-
tion shall be conducted in the manner
provided by law for surface water
adjudications, except that in addition
to the notice provided to be given in
the adjudication of surface water,
notice shall also be given by mailing
notice of the proceeding by first
class mail to all water users who have
filed statements of claim hereunder or
obtained permits hereunder for ap-
propriations of water from the same
aquifer; said notices to be mailed
385 P.2d--91/


at least sixty days prior to the date
set by the court for the hearing on
such adjudication. The decree fixing
the rights of the appropriators shall
be filed with the state engineer and
serve as the basis for further ad-
ministration of priorities to the use
of water from such aquifer. A
ground water decree entered pur-
suant to this section shall have the
same effect for all purposes as a
surface water adjudication decree
and the failure of a ground water ap-
propriator to appear in an adjudica-
tion of water rights to the aquifer
from which he draws water shall
have the same effect as the failure
of a surface water appropriator to
appear in a surface stream adjudica-
tion."
It is significant that Section 12 as above
set out was, on March 14, 1957, stricken in
its entirety by the Senate, (page 508, Senate
Journal, 41st General Assembly), and fur-
ther, that on March 18, 1957, the Senate
further amended said bill by:
(a) Striking from the title as herein-
above set out, the words "providing for the
settling of the priority of rights to such
use," (page 534, Senate Journal, 41st Gen-
eral Assembly); and (b) providing for
some 40 amendments thereto by striking
therefrom the words appropriatorr" and
"appropriation" and substituting the words
"user" and "use", (pages 535 and 536,
Senate Journal, 41st General Assembly).
Senate Bill 113 as above amended was
referred to the House on March 26, 1957,
and the House, realizing the futility of
trying to delete all references recognizing
the appropriation of artesian water,
amended the Senate Bill in its entirety,
(page 575, House Journal, 41st General
Assembly), which bill, as amended, with
minor changes, is the one which was signed
into law on May 1, 1957.
[3] The legislative history as above
stated shows that the legislature attempted
to remove any doubt as to its intentions
and that it contemplated under the provi.








385 PACIFIC REPORTER, 2d SERIES


sions of this bill that there would be an
equitable anod efficient use of nontributary
underground water not pursuant to any
theory of appropriation.
The undisputed testimony of the only
-expert whose evidence was introduced
pointed up many differences between the
"closed" aquifers with which we are here
-concerned and those which are not "closed"
but are flowing tributaries to a natural
-stream. We point out some of these dif-
ferences which would pose insurmountable
problems if an attempt should be made to
.apply the doctrine of prior appropriation.
1. The water bearing formations which
are the sources for the water we are con-
cerned with, consist of three principal
formations, and two minor formations. The
deepest is the Wingate, more than 1,000
feet beneath the surface, and about 350
feet thick. Above the Wingate is an
impervious structure, and above this is the
Entrada sandstone. Again, above this is
an impervious layer of stone, and above
this, the Morrison formation. The two
lesser formations are the Burro Canyon
and Dakota Sandstone, which have been
and will be by us, largely ignored because
of their lack of importance to the issues
here. The aquifers are very "tight" and
water moves through them very slowly.
However, a large quantity of water is
contained therein, and great pressures have
built up, enough to raise the water the
hundreds of feet to the surface. The fact
that the pressure brings water from a well
drilled into one of the aquifers above the
top of the aquifer itself qualifies it as
"artesian", as such is the definition "ar-
tesian".
2. These aquifers are still full of water
notwithstanding withdrawals therefrom, and
for many years to come will remain full, the
effect of withdrawals being only to reduce
pressure. Regardless of the amount of
water in the aquifer, each well has a certain
limit to its potential production by virtue of
the nature of the aquifer and the fact that
it will only release so much water in a
given time.


3. The so-called interference between
these wells is limited to an interference with
pressure, since the aquifer is still full of
water.
4. A well will lose pressure by virtue of
the withdrawal of water through that well,
whether or not there is any other well in
the aquifer.
5. Every well that is drilled into any
part of any of the aquifers theoretically
will reduce the pressure available at any
other well, as well as the pressure in the
well drilled.
6. The amount of interference is deter-
mined by three factors, i. e., the distance
between wells, the rate of withdrawal, and
the transmissibility of the aquifer. If the
rate is low or the distance is great, the
interference may be immeasurable for a
period of years.
With these considerations in mind we
consider some complex problems which the
"appropriation" doctrine would be inade-
quate to handle.
1. Assume that the most junior well is
many miles from the most senior and the
intermediate well is close to the senior.
The intermediate well has a greater effect
on the senior in a shorter period of time, but
ultimately and irretrievably the junior well
will have an effect on both the intermediate
and the senior well. Question: If "appro-
priation" doctrine is to be applied, which
well should be restricted in order to protect
the senior? It should be borne in mind that
the senior well itself has the effect of re-
ducing its own pressure.
2. Assume the existence of fifteen wells
of varying distances from the most senior.
Each will ultimately interfere to a greater
or less extent with the pressure in the
senior well. Question: Under the doctrine
of "appropriation" are all wells except the
most senior to be shut down in order to
protect the pressure in the senior well?
3. If this is not to be done, what stand-
ards of interference are to be applied, and
are these standards to be determined by the
court?


-I


s-_ I ~ s -- ,----sacC~R:



138 Colo.








Colo. 139


WRITTEN v. COIT
Cite as 335 P.2d 131


[4] The Colorado Ground Water Act
r.f 1957 does not form the basis of any legal
justification for the order upon the state
officials to "administer" the waters contain-
ed in the aquifers involved.- The primary
purpose of this Act was prospectively to
protect underground waters and prevent
waste in their production, distribution and
use. It certainly was not the intention by
the adoption thereof to provide a procedure
for the adjudication of water rights. The
Act deals only with regulation of the man-
ner of construction of wells to prevent
waste. It is entirely prospective in opera-
tion, as indeed it must be to avoid the con-
stitutional prohibition against the adoption
by the legislature of any law which is
"retroactive in its operation." (Article II,
section 11). The Act provides that the
Ground Water Commission may declare a
given area to be a "tentatively critical
ground water district" and once an area
has been declared within such designation
it "shall thereupon become subject to the
regulations prescribed in this Article."
The regulations are that after such desig-
nation no new wells can be dug, or the
water drawn from existing wells be in-
creased unless the user shall make applica-
tion in writing to the state engineer for
permission to do so and the application be
approved.
Except for the ministerial duty of issuing
permits to existing wells and authorizing
an enlarged use of such wells, Section 10
of the Act is the only section in which the
legislature has authorized participation by
the state engineer in its administration.
The prospective nature of the Act is clearly
illustrated by the following language:
"The state engineer in cooperation
with the commission shall have power
to regulate the drilling and construc-
tion of all wells in the state of Colo-
rado to the extent necessary to prevent
the waste of water *"
It is difficult to find in this language any
legislative authority for the engineer to
function with reference to wells which had
been drilled long prior to the adoption of


the Act. Every well involved in this con-
troversy was drilled long prior to the legis-
lative enactment. Section 10 provides two
remedies for the state engineer in a situa-
tion where waste is involved. These are:
1. To go in and do the work and hold
the driller liable on his bond. This can
only apply to wells drilled since the adop-
tion of the act. The wells here were drill-
ed before the bond requirement came into
existence, so there is no bond available to
make this remedy available.
2. The other remedy provided is to re-
voke the license of the driller. For the
same reason as given above, this is inappli-
cable in the case of wells drilled before the
statute became effective.

[5] It is clear that these provisions were-
prospective only, yet the legislature was.
specifically legislating on the subject of
waste to ground water from wells. Since-
the only provisions resulting from these:
labors affecting existing wells are provi-
sions for their registration (147-19-2), the
obvious intent being that nothing be done in
respect to waste from existing wells. The
legislature wholly failed to charge the state
engineer with any duties whatever with
reference to existing wells, and the fact
that it is not a good thing that water be
wasted from an existing well cannot serve
to charge the state engineer with any duty
to interfere therewith in the complete ab-
sence of legislative direction designed to,
effect a cure and prevent the waste of water
not tributary to any public stream, and.
which is, accordingly, private property.
In the entire article the word "appropria-
tion" appears but one time and that is in.
section 9 where we find:
"The priority date of a ground water-
appropriation shall not be postponed to
a time later than its true date of initia-
tion by reason of failure to adjudicate
such right in a surface water adjudica-
tion."
This provision obviously was intended' to
apply to decreed priorities to underground
water which can properly be granted a pri-


___








385 PACIFIC REPORTER, 2d SERIES


ority under the doctrine of appropriation
because it is public water, "* since
it belongs to the river, it belongs to the
people of the state by article 16, 5, of her
Constitution." Nevius v. Smith, 86 Colo.
178, 279 P. 44. The quoted section of the
statute was necessary because the clear
indication of numerous decisions of this
court is that only that portion of under-
ground water which supplies a natural
stream is subject to the doctrine of appropri-
ation in like manner as surface waters.
As stated in Faden v. Hubbell, 93 Colo. 358,
28 P.2d 247, the reason it is thus subject to
appropriation is "* because they
[tributary underground waters] belong to
the river." Section 9 above quoted should
be considered in the light of subsection 7,
wherein we find the following:
"A permit [to dig a well] shall not
have the effect of granting or con-
ferring a ground water right upon the
user nor shall anything in this article
be so construed. *" (Emphasis
supplied)
If, however, underground water does not
belong to the river and does not contribute
to a natural stream it is not public water
and is not subject to the doctrine of prior
appropriation.
We approve the language used by a dis-
tinguished member of the bar of this state,
Mr. William R. Kelly, who has had a long
and varied experience in matters involving
water law in a well documented article
published in Vol. 31, Rocky Mountain Law
Review at page 165, 171:
"Ground water, in Colorado's century
of water use development is not to be
Regarded as property of the public, ex-
cept in such instances where it is tribu-
tary to a natural stream. True, the
Colorado court has declared, under the
circumstances of some cases, that there
is a presumption that all water is tribu-
tary to some natural stream; but that
presumption is prima facie only, and
is therefore rebuttable. It has long
been recognized that farmers may sink
wells on their farms to make reasonable


use of the ground water. Public inter-
est requires that a social economy built
up in reliance on a principle so long rec-
ognized should not be disturbed.
"The purpose of the Ground Water
Act of 1957 is to provide administration
facilities to control reasonable use and
to provide a record of facts upon which
such reasonable use can be determined.
"It is submitted that the basis should
not be, and is not, based on priority of
diversion. The landowner has property
in the water in his soil. It is a vested
right which cannot be taken away by
mere legislation. It is subject only to
the reasonable use doctrine. If the
ground water is in motion so as to be
tributary to a natural stream, or part
of the stream water table, it has always
been subject to priorities of appropria-
tion on the natural stream. But unless
it is tributary to the natural stream, it
is not subject to the law of appropria-
tion."
[6,7] Holding as we do that under-
ground waters which are not tributary to
any natural stream are not subject to the
doctrine of appropriation, it necessarily
follows that the original decree entered by
Judge Littler in the adiudication proceed-
ings of 1948, under which the court pur-
ported to award priorities to the plaintiffs
in this action, were void for want of juris-
diction over the subject matter and for a
lack of power to adjudicate such rights.
[8,9] It has long been established as
basic law that the validity of a judgment
depends upon the court's jurisdiction of the
person and of the subject matter of the
particular issue it assumes to decide. Con-
sidering what is meant by the term "juris-
diction" it is well settled that this term in-
cludes the court's power to enter the judg-
ment, and the entry of a decree which the
court has no authority to enter is without
jurisdiction and void. A void judgment
may be attacked directly or collaterally.
Newman v. Bullock, 23 Colo. 217, 47 P. 379;
Atchison, Topeka and Santa Fe Railway
Co. v. Board of Fremont County Commis-


__ _~_ Ir


140 Colo.








WRITTEN v. COIT
Cite as 385 P.2d 131


sioners, 95 Colo. 435, 37 P.2d 761; Greene
v. Phares et al., 124 Colo. 433, 237 P.2d 1078;
United States National Bank of Denver v.
Bartges, 120 Colo. 317, 210 P.2d 600. Da-
vi.s;on Chevrolet, Inc. et al., v. City and
County of Denver, 138 Colo. 171, 330 P.2d
1116; Thompson v. McCormick, 138 Colo.
434. 335 P.2d 265; West End Irrigation
Company et al. v. Garvey, Executor et al.,
117 Colo. 109, 184 P.2d 476.
The judgment of the trial court is re-
versed and the cause remanded with direc-
ti.ns to dismiss the action.

HALL, J., dissents.

HALL, Justic dissenting).
I dissent.
On August 23, 1948, Judge Littler, now
deceased, in Civil Action 7327 in the Dis-
trict Court of Mesa County, Colorado,
entitled:
"IN THE MATTER OF THE AP-
PLICATION OF J. LEWIS FORD
FOR AN ADJUDICATION OF HIS
RIGHT TO THE USE OF ARTE-
SIAN WATERS DERIVED FROM
SUBTERRANEAN SOURCES IN
MESA COUNTY, COLORADO, IN
WATER DISTRICT NO. 42, and for
the Adjudication of Rights in the
Artesian Waters in said Mesa County
for Domestic purposes."
entered a decree wherein findings were
made and the rights of eighteen claimants
were determined. The court found, in
conformity with the requirements of CRS
'53, 147-9-11:
"* as to each appropriation
claimed, the priority date to which the
same is entitled to relate, together with
the volume thereof, the purpose there-
of, tie source, the point of diversion
*,,


Among other findings made are the follow-
ing:
"* the court further finds
that Chapter 90, 1935 Colorado Stat-
utes Annotated and acts amendatory
thereof are applicable to this proceed-


ing; that all notices required by law
have been given; that hearings on
proof of claims have been regularly
continued from time to time; that
the notice required by law has been
given to all parties or their attorneys;
that the findings and the proposed de-
cree have been filed with the clerk
of this court and that notice was given
that any objections thereto have been
filed; that the court has jurisdiction
to enter this decree under the statutes
of this state as well as under the gen-
eral equitable jurisdiction of the court.
*
"That the amount of water awarded
to each of said wells under the abso-
lute decrees herein made for domestic
purposes has been placed to a bene-
ficial use as in this decree found and
determined, and the amount of water
so awarded and decreed in each case
is necessary, essential and beneficial
for the purposes named and under the
testimony and evidence taken and sub-
mitted in this proceeding such amounts
of water have been appropriated, used
and applied in each and every case,
and that by reason thereof the claim-
ants and parties lawfully entitled there-
to have acquired a lawful and vested
property right to the use of such water.
*
"The wells involved in this proceed-
ing are bottomed in three separate
and distinct sands: the upper sand is
known as the Morrison Sand, the
second sand down is known as the
Entrada Sand and the bottom sand
as the Wingate Sand. These sands
have no connection with each other
and are separated by an impervious
structure so that no water seeps or
percolates from one to the other. The
water contained in these sands is not
tributary to any natural surface stream.
All of the wells involved in this pro-
ceeding are located within the exterior
boundary lines of Water District No.
42. Inasmuch as the three sands in-


Colo. 141


~Parts~r I I Ir~ I'lllb~311111LI


811111-


I

I
I








385 PACIFIC REPORTER, 2d SERIES


volved constitute separate sources of
water, the wells bottomed in each
sand respectively are given separate
priorities, and each sand should be
considered in effect a separate district.
The legislature not having at this time
assigned a number to designate these
sands as separate districts, they should
be designated as zones within Water
District No. 42, and accordingly, the
Morrison Sand is designated as Zone
No. 1 in Water District No. 42, the
Entrada Sand as Zone No. 2 in Water
District No. 42, and the Wingate Sand
as Zone No. 3 in Water District No.
42.
"Since there has never been a prior
adjudication of wells in Water District
No. 42, the priorities herein shall be-
gin with No. 1 in each sand or zone
of District No. 42. Any decree which
is conditional shall have suffixed to it
the letter 'C' to designate it as con-
ditional.
*
"All water for which priorities are
awarded in this proceeding shall be
used for domestic purposes which shall
include water for livestock. The own-
ers of the priorities shall have the
right to sell said water for domestic
purposes off the premises, including
the right to pipe the same to points
off the premises whereon said wells
are located." (Emphasis supplied).
No steps have ever been taken to modify,
set aside or review this decree.
On January 8, 1957, eight of the above
mentioned claimants, (to whom I refer as
plaintiffs) who were decreed priorities in
the above mentioned proceedings, commenc-
ed this action. They named as defendants
(1) twenty-eight persons or firms, who they
allege have no decreed or other rights to
take water from plaintiffs' sources, who are
taking water therefrom and depleting plain-
tiffs' decreed sources of supply; (2) ten
of the above mentioned claimants who were
decreed priorities in the above mentioned
proceedings, who refused to join as plain-


tiffs in this action and were named as
defendants; (3) the State Engineer, the
Division Engineer and the Water Com-
missioner of Water District No. 42, and
(4) "All Unknown Persons who claim any
interest in the subject matter of this ac-
tion."
Plaintiffs sought the following relief:
1. An injunction directing the State
Engineer, the Division Engineer
and the Water Commissioner of
Water District No. 42 to recognize
and enforce the 1948 Littler De-
cree.
2. A permanent injunction enjoining
the twenty-eight named defendants
without decreed rights from taking
any water from the source of plain-
tiffs' supply and specifically through
or by means of twenty-four named
wells.
3. An order to compel the owners of
any and all wells:
"* to properly cement,
case and equip the same with valves
so as to prevent leakage, waste or
unauthorized withdrawal of water
therefrom."
On July 31, 1957, the state water of-
ficials filed a motion to dismiss plaintiffs'
complaint, setting forth as grounds there-
for:
"* that these defendants are
joined only in their official capacities;
that in such capacity they have no duty
under Colorado law to administer any
decrees establishing rights to the use
of water except decrees establishing
rights to the use of the public waters
of the State of Colorado; that the
complaint and the decree of this court
in Civil Action No. 7327 (Littler De-
cree) conclusively show that
the said decree is not one for the use
of the public waters of the State of
Colorado; and that, therefore, the com-
plaint does not state a claim against
these defendants upon which relief may
be granted."


__


142 Colo.







Colo. 143


WRITTEN v. COIT
Cite as 385 P.2d 131


This motion was, on October 7, 1957,
overruled and on October 16, 1957, these
defendants filed their answer wherein:
1. They admit certain allegations of
plaintiffs' complaint, and deny oth-
ers;
2. as affirmative defenses, allege that
the plaintiffs have not exhausted
their administrative remedies under
the statutes of the State of Colo-
rado;
3. that the complaint does not state
a claim upon which relief may
be granted and "that the Court
is without jurisdiction over the
subject matter of this action."
On March 4, 1957, a MOTION TO
DISMISS plaintiffs' action was filed by
"* defendants herein who
are represented by their respective at-
torneys and who are appearing special-
ly for the purpose of this Motion only,
,
Urged as ground for dismissal is the
following:
"That this Court has no jurisdiction
of said supposed cause of action set
forth in the Complaint herein for the
reason that the purported decree of
this Court of August 23, 1948, deter-
mining that that Court had jurisdiction
to adjudicate rights in artesian waters
in Mesa County under the statute of
this State and its equitable powers was
null and void and without the powers
of this Court under the Constitution
and Statutes of this State."
This motion was finally overruled on Octo-
ber 9, 1957, and the defendants were given
ten days to answer, "unless some Defend-
ant desires to stand on Motion to Dismiss
*." Significantly not one defendant
saw fit to stand on his position that the
Littler decree was void.
On June 30, 1958, twenty of the de-
fendants, some having decreed rights, others
having wells but no decreed rights, filed
an answer wherein they set forth that:
1. The complaint does not state a
claim ;


2. admit certain allegations of the
complaint and deny other allega-
tions;
3. (as an affirmative defense) allege
that the plaintiffs are using more
water than was decreed to them
and for purposes other than desig-
nated in their decrees (a position
wholly inconsistent with the con-
tention that the Littler decree is
void).
They pray that plaintiffs' complaint be
dismissed and that they be awarded such
relief as may seem proper to the court.
On October 16, 1957, McCoy Company,
owner of an unadjudicated well, filed its
answer wherein it admits most allegations
of plaintiffs' complaint and denies other
allegations. It prays that plaintiffs' com-
plaint be dismissed and that it be awarded
costs and general relief.
On February 13, 1957, Holly Sugar Cor-
poration, named as a defendant, owner
of a well with a decreed right, filed its
separate answer wherein it sets forth the
terms and extent of its
"No. 2 Priority as of October 1, 1923,
from the Wingate Sand *"
It asks for
"* judgment and relief as it
may be entitled to herein."
On October 25, 1957, defendant Fleck,
owner of a well with a decreed right, and
defendant Reinhardt, owner of a well with
no decreed rights, filed a document labeled
as a joint "STATEMENT OF POSI-
TION" wherein they assert that the Littler
decree is valid and binding upon all parties
to this action. The allege that their state-
ment shall not be construed as an admis-
sion or denial of any issues in the case.
Eight other defendants, all of whom were
duly served with process, failed to enter any
appearance and their default was duly en-
tered on February 28, 1961, prior to trial.
Judge Hughes, who was then presiding
over the case, in his order denying defend-
ants' motions to dismiss on the ground that








385 PACIFIC REPORTER, 2d SERIES


the Littler decree was void, stated among
other things:
"Judge Littler, now deceased, took
jurisdiction of the petition and the sub-
ject matter involved, and after taking
evidence entered a decree which fixed
priorities for certain wells, which are
those owned by plaintiffs in the present
action and their predecessors in inter-
est. This decree reads, and provides in
part as follows: 'That the Court has
jurisdiction to enter this decree under
the statutes of this state, as well as
under the general equity jurisdiction of
the Court.'
"The Court states that the wells in-
volved are bottomed in three separate
and distinct sands; that the waters con-
tained in these sands are not tributary
to any natural surface stream; that
each sand involved constitutes a sepa-
rate source of water.. The decree con-
tains the usual provisions about. eco-
nomic use of water, etc.
"Judgment was then given by decrees
to the various wells involved. These
decrees stated the purpose of use; the
stratum of sand from which it was tak-
en; and the amount of water decreed,
both absolute and conditional.
"The question before the Court is
whether these decrees are valid in law.
"The Case of Coffin vs. Left Hand
Ditch Company, 6 Colo. 443 is the first
to discuss water rights applicable to
the State of Colorado. Judge Helm
states in this decision; that the common
law doctrine of riparian ownership is
inapplicable to Colorado. 'Imperative
necessity, unknown to the countries
which gave it birth, compels the recog-
nition of another doctrine in conflict
therewith. And we hold that, in the ab-
sence of express statutes to the con-
trary, the first appropriator of water
from a natural stream for beneficial
Purposes has, a prior right
:thereto, to the extent of such appropria-
tion


"'The doctrine of priority of right
by priority of appropriation for agri-
culture is evoked, as we have seen, by
the imperative necessity for artificial
irrigation of the soil.'
*
"We therefore find that the Colo-
rado Supreme Court did recognize that
through necessity, throughout our state,
water could be appropriated and prior-
ity of appropriation recognized with-
out reference to legislation upon the
subject. It is true that Judge Helm was
talking about the waters of natural
streams, and that it was these waters
that were involved. It is also true that
he refers to 'custom'. In the Court's
opinion, this does not detract from the
proposition that it was recognized that
appropriation of water could be made
and protected by the Court in the ab-
sence of legislation to the contrary."
(Emphasis supplied).

"Our present irrigation statutes pro-
vide for the hearing, adjudicating and
settling of all questions concerning the
priorities of appropriation of water be-
tween owners and claimants of water
rights drawing water from the same
source within the same water district,
and all other questions of law flowing
out of, or in anyway involved or con-
nected therewith.
"It also recognizes sources of water
as being natural streams, systems or
other sources of water.
"The previous statute, C.S.A. Chapter
90, Section 158 concerning the same
subject matter, provides that any one
or more persons, associations or corpo-
rations interested as owners of any
ditch, canal or reservoir should have
their priority of right adjudicated, and
further provides that the adjudication
of priority of rights should be to the use
of water for irrigation between the sev-
eral ditches, canals and reservoirs.
"We therefore see that the legisla-
ture has changed the law of adjudica-


5--


144 Colo.


.1








WRITTEN v. COIT
Cite as 385 P.2d 131


tion of priorities, or questions upon
which the court in adjudication pro-
ceedings has jurisdiction, from those
owning an interest in a ditch, canal or
reservoir, to 'hearing, adjudicating and
settling all questions concerning the
priority of appropriation of water be-
tween owners and claimants of water
rights.'
"On its face our last statute, which
was enacted in 1943, would cover ad-
judication of all priorities to the use of
water to which the rights of priority by
use could be made. And certainly this
would apply to underground water as
well as to surface water.

"The Court further concludes that
the language of our adjudication pro-
ceedings as contained in the 1943 stat-
utes is broad enough, and was intended
by the legislature, to cover all water in
the State of Colorado."
In my opinion Judge Hughes' analysis of
the problem and resolution thereof is cor-
rect.
A pretrial conference was held on October
19, 1960, at which time Judge Kempf enter-
ed an order stating the issues and his view
of the law governing the case. He set the
case for trial on May 1, 1961.
Trial was to the court which, among
other things, found the following facts:
"6. The aquifers in question are
relatively impermeable and the move-
ment of water through them is very
slow. The basin, which is closed, is
very large and some of the aquifers
are very thick. It is impossible with
present knowledge to calculate the re-
filling rate, but it is very slow. Due to
the depth of the aquifers, the low stor-
age capacity per cubic foot of rock,
and the low transmissability, the cost
of drilling wells compared with the
amount of water recovered has restrict-
ed the use of this water to domestic or
industrial purposes rather than irriga-
tion.
P* *
385 P.2d-10


"7. In the event that a senior de-
creed appropriator cannot obtain his
water from his well by deepening it
and pumping, then it is the duty of the
water officials, on demand to close
down junior wells in proximity until
the senior appropriator can obtain his
water."

And stated:
"As to the law applicable, the Court
concludes:
"1. The underground waters are
public and subject to private appropria-
tion by putting to beneficial use, and
the decree adjudicating priorities is
valid.
"2. The right acquired by an appro-
priator is the right to divert water at
the well location in the zone in which
it is bottomed for such beneficial use.
"3. It is contrary to the law to waste
this water when it is brought to the
surface or to alter the natural condi-
tions by drilling, operating or maintain-
ing any well which allows water to flow
from one formation of greater pressure
to one of less pressure, whether by per-
forating casing in more than one
formation or because of leakage around
the casing of a well or lack of casing.
"4. There is no vested right in the
maintenance of artesian pressure and a
senior appropriator is not injured if he
is required to deepen or enlarge his
well or to install a pump so long as he
can thus obtain his decreed or appro-
priated amount of water.
"5. This is an action in personal
and not in rem.
"6. The State Engineer and subor-
dinate water officials are under the duty
imposed by existing statutes to adminis-
ter the water of these aquifers and en-
force priorities decreed thereto as in
the case of diversions from public
streams of this state, and to require
the persons owning or possessing such
wells (1) to install shutoff valves or de-


Colo. 145








385 PACIFIC REPORTER, 2d SERIES


vices to enable the flow to be cut off,
(2) to case and cement each well or
take such other action as is necessary
to prevent the running of water from
one formation to another, (3) to cease
all waste of water from such wells after
it reaches the surface, (4) to install a
meter on each well to measure the
quantity of water taken therefrom, (5)
to allow the performance of such tests
or measurements as may be required to
determine from time to time the hydro-
static head or other facts concerning
such well. The State Engineer and
subordinate water officials are under the
duty to make and maintain records of
the data obtained regarding each such
well.
"7. In the event that a senior de-
creed appropriator cannot obtain his
water from his well by deepening it
and pumping, then it is the duty of the
water officials, on demand, to close
down junior wells in proximity until the
senior appropriator can obtain his
water."

The Decree provides:
"1. That the decree entered in Civil
Action No. 7327 in this Court on Au-
gust 23, 1948 is valid and in full force
and effect as a decree fixing priorities
for the use of public waters in the
Entrada, Morrison and Wingate sand-
stones underlying lands in Mesa County,
Colorado.
"2. That defendants J. E. Whitten,
State Engineer of Colorado; Frederick
W. Paddock, Irrigation Division En-
gineer of Division No. 4; and Wood-
row W. Saunders, Water Commissioner
of Water District No. 42, are hereby
ordered to control and administer said
underground waters and wells in the
same manner and to the same purpose
as in the case of diversions from public
streams of the State of Colorado. In
particular, but without limitation there-
to, they shall require persons owning or


possessing such wells to do the follow-
ing:
"(a) To install shutoff valves or de-
vices to enable the flow to be
cut off.
"(b) To case and cement each well
or take such other action as is
necessary to prevent the run-
ning of water from one forma-
tion to another.
"(c) To cease all waste of water
from such wells after it reaches
the surface.
"(d) To install a meter on each well
to measure the quantity of
water taken therefrom.
"(e) To allow the performance of
such tests or measurements as
may be required to determine
from time to time the hydro-
static head or other facts con-
cerning such well;
and said officials shall make and main-
tain records of the data obtained by
them regarding each such well."
3. That the following named de-
fendants "* are hereby perma-
nently enjoined and restrained from do-
ing or allowing to be done any of the
following:
"A. Wasting any water brought to
the surface in any well owned, possess-
ed or controlled by them from any of
the water-bearing formations known as
the Entrada, the Morrison and the Win-
gate sandstones.
"B. Possessing or maintaining any
well in which water may flow from one
of said water-bearing formations into
another, or into any other formation
underground.
"C. Taking water from any well or
allowing the same to flow from such
well when such depletion of water shall
cause the owners of senior decreed
water rights to be unable to divert their
decreed amounts of water by pumping
from a well extending through the


m


146 Colo.


I


IF I--- -Pl I-~ L- -- -







WRITTEN v. COIT
Cite as 385 P.2d 131


depth of the formation from which said
water is decreed.
"D. Failing or refusing to comply
with orders of the State Engineer of
Colorado and subordinate water officials
made pursuant to this decree."
The only parties who have entered an
appearance here are the official defendants
and the plaintiff Ford, the same Ford who
applied for the adjudication before Littler.
The official defendants contend that the
waters involved are such that the doctrine
of prior appropriation cannot logically be
applied thereto and that there is no legisla-
tive duty on them to control or administer
such waters or to carry out the trial court's
ruling. They urge that this court correct
the errors of the trial court and announce
the law applicable in circumstances such as
we have here. Ford urges that the judg-
ment be affirmed.
So far as the record before us discloses,
not one of the eight plaintiffs or the thirty-
eight nonofficial defendants who had their
respective rights and duties adjudicated by
Judge Kempf in this case has ever voiced
any disapproval of his decree or taken any
steps to have the same vacated or modified.
In the majority opinion it is stated:
"The controlling question which we
are called upon to determine is, whether
the doctrine of prior appropriation of
water to beneficial use is applicable to
underground waters which are not trib-
utary to any natural stream, and so re-
sults in a priority of right to the water
thus used."
I do not accept the foregoing statement
as the problem presented for our determina-
tion.
That problem was resolved by Judge
Littler in 1948. All of the parties to that
proceeding, also all of the parties to this
proceeding whose rights and duties were
adjudicated by the trial court, have been
made parties here, and all (except the plain-
tiffs in error) have been summoned to ap-
pear in this court, as provided by Rule 111
(e), R.C.P., Colo. Ford and none other


has appeared and he urges that the judg-
ment be affirmed.
Plaintiffs in error seek reversal of that
portion of the judgment which orders them
to do certain specified acts in connection
with administering the waters decreed to
the various well owners.
In my humble opinion the controlling and
only question properly before us for con-
sideration is the correctness of that part
of the judgment directing the water officials
to do certain acts
"* in the same manner and to
the same purpose as in the case of
diversions from public streams of the
State of Colorado."
The majority opinion, in outlining the
duties of the state engineer and his subor-
dinates, refers to CRS '53, 147-11-1, 3 and
6. The foregoing legislative directives were
adopted in 1889. They may well have been
adequate in 1889 when the state was in its
infancy and underground and ground waters
were a matter of little or no concern to
anyone. However, as hereinafter pointed
out, his duties were substantially increased
by the 1957 "Colorado Ground Water Law."
The majority opinion deals extensively
with "the legislative history of the Ground
Water Law of 1957," and it would seem may
well have predicated its decision on infer-
ences drawn from the fact that the legisla-
ture rejected and struck certain proposals
from the initial draft of the act. I do not
subscribe to that line of reasoning. What
a legislative body does not do does not
change the course of human events. In
1957 the legislature did adopt the "Colorado
Ground Water Law." Inferences drawn
from inaction of the legislature in certain
areas must yield to its positive pronounce-
ments. There are several pronouncements
in the 1957 act which in my opinion are
very pertinent in resolving the problems
presented to the trial court, language which
indicates an intention to confirm the hold-
ings of Judges Littler, Hughes and Kempf,
that all migrant waters are public waters
and subject to appropriation, as are the



Colo. 147








385 PACIrIC REPORTER, 2d SERIES


waters of flowing streams, sanctioning the
court's directions to the state engineer.
In this respect I consider the following
provisions of the act as highly significant:
1960 Perm.Supp., C.R.S.:
"147-19-1. Definitions.-(1) The
term 'user' as used herein shall mean
any individual making a ben-
eficial use, or taking steps or doing
work preliminary to making a beneficial
use of underground waters of Colorado.
"(2) The terms 'underground water'
and 'ground water' are used inter-
changeably in this article and refer to
any water not visible on the surface of
the ground under natural conditions.
"(3) The term 'aquifer' means a geo-
logical formation that contains or
transmits ground water." (Emphasis
supplied).
"147-19-2. (1) Existing ground wa-
ter uses shall be as fully recognized as
if this article had been in force at the
time of their initiation. Within three
years after the effective date of this ar-
ticle, however, all users of ground wa-
ter shall file statement of their use with
the state engineer, setting forth such
information as may reasonably be re-
quired by the state engineer for the
proper administration of this article,
including but not limited to the follow-
ing: the location of the well
or tunnel or other means of diversion
; the nature and extent of use;
the date when work on diver-
sion facilities was commenced, and the
date when water was first applied to a
beneficial use *
*
"(3) The state engineer shall file
and preserve such statements and make
a record thereof in his office so in-
dexed as to be useful to users in de-
termining the extent of use made from-
various water sources, and shall issue
a permit for each use. Failure to file a
statement of use shall be
prima facie evidence of an intent to


abandon such use; and in administer-
ing the underground waters of this
state the state engineer may
disregard any use not so filed." (Em-
phasis supplied).
"147-19-5. (1) From and after the
date this article becomes effective, no
new wells shall be drilled, nor the sup-
ply of water from existing wells in-
creased or extended, unless the user
shall make an application in writing to
the state engineer, for a 'permit to use
ground water,' setting forth *
the proposed use for which the use is
intended, the date of the initiation of
the use *." (Emphasis supplied).
"147-19-6. The state engineer shall
provide regulations under which an ex-
isting well may be modified by change
of the well itself, the pumping equip-
ment therefore, by the drilling of a sub-
stitute well, or otherwise in order to
make it possible for the owner of a well
to obtain the water to which such own-
er is entitled as initiated by the original
well." (Emphasis supplied).
"147-19-9. 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." (Emphasis sup-
plied).
"147-19-10. (1) The state engineer
* shall have power to regulate
the drilling and construction of all wells
in the state of Colorado to
prevent the waste of water *
"(2) If the state engineer finds any
well to have been drilled or maintained
in a manner or condition contrary to
any of the provisions of this article or
the regulations issued hereunder, he
shall immediately notify the user in
writing of such violation and give him
such time as may reasonably be neces-
sary, not to exceed sixty days, to cor-
rect deficiencies. If the user fails or re-
fuses to make the changes within the
allowed time the state engineer is au-


_ ___ ~


148 Colo.







WHITE:
Cite as 3

thorized to enter upon his land and do
whatever is necessary that the user
comply with the provisions of this ar-
ticle or regulations issued hereunder."
In the foregoing legislative pronounce-
ments are many words peculiarly adapted to
our procedures leading up to the acquisition
of a decreed priority to the use of public
waters. To mention some: "beneficial use,"
"diversion," "date when work diversion fa-
cilities was commenced," "the date when
water was first applied to beneficial use,"
"evidence of an intent to abandon such use,"
"the date of the initiation of the use," "to
obtain the water to which such owner is en-
titled as initiated by the original well."
These words are common parlance in water
adjudication proceedings; they are mean-
ingful and cannot be ignored or their force
minimized because the legislature saw fit to
not use other proposed words.
The majority opinion contains the follow-


"The legislative history as above
stated shows that the legislature at-
tempted to remove any doubt as to its
intentions and that it contemplated un-
der the provisions of this bill that there
would be an equitable and efficient use
of nontributary underground water not
pursuant to any theory of appropria-
tion." (My emphasis).
The fact that the legislature said:
"The priority date of a ground water
appropriation shall not be postponed to
a time later than its true date of initia-
tion by reason of failure to adjudicate
such right in a surface water adjudica-
tion." (Emphasis supplied)
impels me to a conclusion not in keeping
with that expressed by the majority.
I find great difficulty in determining from
the record before us the nature of the wa-
ters involved. Judge Littler found that "the
water contained in these sands is not tribu-
tary to any natural surface stream."
Whether the word "surface" was used ad-
visedly and for a purpose is not disclosed
by the record. Certainly the water was not
tributary to a surface stream-yet it might


N v. COIT
85 P.2d 131


Colo. 149


well be tributary to a stream. Further con-
fusion as to the nature of the waters involv-
ed arises out of testimony and comments
and findings of the trial court in this case.
Statements to the effect that the water
moves slowly through relatively impermea-
ble aquifers, that percolation is very slow,
replenishment and recharge requires a long
period of time, and there was not available
any practical means of computing the re-
charge rate. All of which creates in my
mind grave doubts as to whether the waters
are tributary. If moving, however slowly,
they are going somewhere, they are seek-
ing lower ground and presumably are tribu-
tary. They are here today and gone tomor-
row, which is inconsistent with any conten-
tion that they are a part of the lands.
The 1957 Colorado Ground Water Law, in
defining "aquifers" and "ground water,"
would seem to have contemplated this exact
situation. In defining an aquifer as "a *
formation that transmits ground
water," the legislature has negated the idea
of a closed basin. In defining ground wa-
ter as "any water not visible on the surface
of the ground," the legislature does not ex-
clude ground waters that might be tribu-
tary.
In the case before us the waters are in an
aquifer, where they are transmitted, are be-
ing replenished, and they are subject to the
rule stated in Safranek v. Town of Limon,
123 Colo. 330, 228 P.2d 975:
"* Under our Colorado law,
it is the presumption that all ground
water so situated finds its way to the
stream in the watershed of which it lies,
is tributary thereto, and subject to ap-
propriation as part of the waters of the
stream. DeHaas v. Benesch, 116 Colo.
344, 181 P.2d 453. The burden of proof
is on one asserting that such ground
water is not so tributary, to prove that
fact by clear and satisfactory evidence.
*"
I do not agree that the Littler decree is
void. The waters involved, public or pri-
vate, are in Water District No. 42, the dis-
trict over which Judge Littler presided.








385 PACIFIC REPORTER, 2d SERIES


Certainly he, if anyone, had jurisdiction
over the subject matter. Certain parties, in-
cluding Ford, sought to have their respec-
tive rights to water adjudicated. The court
had jurisdiction over the parties voluntarily
appearing before him and also those brought
before him by proper process. There was
no other place for the parties to go to have
their respective claims to the waters in-
volved determined.
In the majority opinion it is stated:
"* the decrees enter-
ed by Judge Littler were void
[1] for want of jurisdiction over the
subject matter and [2] for a lack of
power to adjudicate such rights."
It would seem that the subject matter was
the water and clearly it was subject to his
jurisdiction, just as land, minerals, cattle


or other property in his district. Possibly
the majority opinion, in speaking of sub-
ject matter, refers to water adjudication
proceedings-clearly he had statutory au-
thority and duty to conduct such proceed-
ings and, according to the pronouncement of
this court in Coffin, et al. v. Left Hand
Ditch, supra, he could conduct adjudica-
tion proceedings without statutory authori-
ty.
Judge Littler was duty bound to resolve
matters brought before him. Here, one of
the problems presented was to decide wheth-
er the waters involved were subject to ap-
propriation and decree. Apparently the ma-
jority take the position that he had jurisdic-
tion to say "No," but lacked jurisdiction to
say "Yes." To that I do not subscribe.
The judgment should be affirmed.


-- I __


150 Colo.




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