Opinion
Nov. 19, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Moses, Wittemyer & Harrison, Raphael J. Moses, Boulder, for plaintiffs-appellants.
Holley, Boatright & Villano, George Alan Holley, Wheat Ridge, for defendants-appellees.
SMITH, Judge.
Plaintiffs appeal from the denial of a motion to alter or amend the trial court's order denying an injunction and releasing a performance bond posted by defendants. Plaintiffs complain that they were not permitted to present evidence in support of this motion. We determine that the trial court did not abuse its discretion in refusing to hear further evidence before denying plaintiffs' motion.
Defendants own the land traversed by the laterals through which water from the Welch Ditch has flowed onto and irrigated plaintiffs' land for many years. A hearing was held on January 28, 1971, to resolve the question of delivery of plaintiffs' water across defendants' land. The parties entered into a stipulation, which became the basis of an order directing the defendants to provide adequate easements and to erect adequate physical facilities to convey irrigation water, presently owned by plaintiffs, across defendants' land, in the quantity and with the velocity of flow that has been historically provided to the plaintiffs. The order directed defendants to post a $500 bond to indemnify plaintiffs for any losses they might suffer if defendants failed to perform their agreement. The order also provided that the court would retain jurisdiction over the matter to ensure that the provisions of its orders were complied with and directed that plaintiffs file their objections, if any, to the system installed by defendants on or before June 1, 1971.
Objections were timely filed and on July 11, 1972, a second hearing was held to determine whether there had been compliance with the agreement and order. At the conclusion of that hearing judgment was reserved and the matter was continued for one momth so that additional evidence could be obtained.
The third hearing was held on August 21, 1971. The court heard testimony from an expert whom it had sent out to investigate the situation. His testimony indicated that an adequate amount of water was flowing through the lateral onto pliantiffs' land to satisfy the terms of the stipulation and order. In contrast, plaintiffs' expert witness, testified that the works were not adequately designed to effect the purposes of the stipulation and order, and that certain flowage problems might arise from the design. The court, after considering all of the evidence, appears to have concluded that its order pursuant to the stipulation had been substantially complied with and therefore, denied the application for injunction. The court, however, ordered the $500 bond be retained until the trash gates were installed and until heavy construction on defendants' property was completed.
On December 13, 1972, a fourth hearing was held wherein the court, having determined that its order of August 21st had been complied with, released defendants' bond. Plaintiffs filed a motion to alter or amend the order of December 13th. Plaintiffs requested that the bond be reinstated or, in the alternative, that defendants be required to undertake the continuing obligation of repairs and maintenance for the system. On March 19, 1973, they amended this motion additionally requesting that the court alter its order of August 21, 1972.
Plaintiffs, at the hearing on their motion, made an offer of proof which demonstrated that their proposed evidence would again be testimony of their expert to the effect that the works presently designed by defendants were not adequate to accomplish the purpose of the stipulation and order. This was essentially the same evidence, from the same expert witness, that was presented to the court at the hearing of August 21, 1972. The trial court refused to hear evidence on these issues, determining that the same evidence had been previously heard and ruled upon in prior proceedings.
The burden of proving that the substitute system was adequate and that the parties' agreement was being complied with was upon the defendants. Brown v. Bradbury, 110 Colo. 537, 135 P.2d 1013. The trial court, in its order of August 21, 1972, found that the defendants had met their burden by complying with the original stipulation and order, and thereupon denied the petition for injunction. It further found, on December 13, 1972, that defendants had complied with the court order of August 21, and released the bond. Those findings, based upon competent evidence, are conclusive upon review. Quirico v. Hickory Jackson Ditch Co., 130 Colo. 481, 276 P.2d 746. Thus, the issue as to whether the system has been adequately designed so that it provided plaintiffs' with their historical flow of water has been fully and fairly litigated.
The plaintiffs argue that they are being deprived of their property rights without a hearing contrary to the provisions of Colo.Const. Art. II, Sec. 25. The offer of proof did not contain any showing that the plaintiffs were not receiving their historical flow of water. When and if they are deprived of their water, they have an adequate remedy by again petitioning the court, upon a showing that the substitute system is not adequately providing them with water. Stuart v. County Commissioners, 25 Colo.App. 568, 139 P. 577.
Therefore, we hold that the trial court did not abuse its discretion in refusing to hear the evidence presented by plaintiffs in support of their motion to alter or amend.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.