Opinion
No. 21365.
Decided January 30, 1967. Rehearing denied March 6, 1967.
Action by landowners against city seeking an adjudication of water rights in and to a certain spring located on their property. From an adverse judgment landowners bring error.
Affirmed.
1. WATERS and WATER COURSES — Flowing Water — Stream — Tributary — Contrary — Burden of Proof. In Colorado, flowing water is presumed to find its way to a stream, and the burden of proving otherwise rests upon the party claiming that such water is not tributary.
2. Conflict of Evidence — Finding — Tributary — Affirmation — Duty of Reviewing Court. Where trial court, on the basis of conflicting evidence, held that spring water in question was tributary in nature and there is evidence to support such determination, held, in such case reviewing court is not at liberty to upset finding of trial court.
Error to the District Court of Boulder County, Honorable William E. Buck, Judge.
David B. Richeson, for plaintiff in error.
Neil C. King, City Attorney, Marvin B. Woolf, Assistant, Peter C. Dietze, for defendant in error City of Boulder.
No appearance for defendant in error Public Service Company of Colorado.
William and Lois Ranson commenced a supplemental adjudication in Water District 6 by filing a petition wherein they sought an adjudication of water rights in and to a certain spring located on property owned by them. In this petition the Ransons asserted that they "owned" and had the right to the use of "any and all waters" coming from the spring on their property.
In the trial court the city of Boulder and the Public Service Company of Colorado appeared in this particular proceeding, and each filed a protest wherein each claimed that the spring water in question was tributary to a stream on which they had certain priority rights.
Upon hearing, the trial court found that the water from this spring on the Ranson's property was tributary to an unnamed intermittent stream, which was in turn tributary to Coal Creek, and that the latter creek was tributary to Boulder Creek. Accordingly, the trial court rejected Ranson's claim to the use of all of the water flowing from this spring, though the trial court did award the Ransons Priority No. 78, Third Series, for household domestic use and for the irrigation of less than ten acres, with a priority date of 1913. By writ of error the Ransons now seek reversal of the decree thus entered by the trial court.
It is the position of the Ransons in this court that, by virtue of C.R.S. '53, 147-2-2, they are entitled as a matter of right to the use of all of the water coming from the spring on their property. The city of Boulder contends, however, that the aforementioned statute applies, if, and only if, there first be a determination that the spring water in question is "non-tributary" in nature, and that in this regard the trial court determined that the water from this particular spring was tributary, as opposed to non-tributary. Cline v. Whitten, 150 Colo. 179, 372 P.2d 145.
The Ransons, by way of rejoinder, do not challenge, as such, the rationale of Cline v. Whitten, supra, but do assert that the finding of the trial court that the water from the spring here in question is tributary was clearly erroneous, as a matter of law. Hence, the issue here to be resolved narrows to a determination as to whether there is evidence to support this particular finding of the trial court.
In Colorado, flowing water is presumed to find its way to a stream, and the burden of proving otherwise rests upon the party claiming that such water is not tributary. Cline v. Whitten, supra. Upon the trial of this matter, the Ransons called as their witness a geologist who expressed the quite definite opinion that the water from this spring was not tributary to any stream. And he detailed the reasons for his opinion.
The city of Boulder, on the other hand, called as its witness a civil engineer, with extensive experience in the field of hydrology, who testified that in his opinion the water from this spring was tributary, first, to an unnamed intermittent stream, and then in turn to Coal Creek and Boulder Creek. This witness also detailed the reasons for his professional opinion.
It was on this general state of the record, then, that the trial court held that the spring water here in question was tributary in nature. In our view, though there is admittedly evidence to the contrary, there is nevertheless evidence to support the determination thus made by the trial court. In such circumstance, this court is not at liberty to upset the finding of the trial court Cline v. Whitten, supra.
The judgment is therefore affirmed.
ADDENDUM:
McWILLIAMS, J.
In view of the dissent authored by Mr. Justice Sutton and concurred in by Mr. Justice Day, which dissent was filed at the time of the denial of the petition for rehearing, I feel constrained to make a few additional remarks.
The Caspian, Salton and Dead Seas notwithstanding, the rule in Colorado is all flowing water is presumed to find its way to a stream and is therefore presumed to be tributary in nature. Furthermore, in connection with this presumption, the burden of proof rests upon a party claiming that certain water is not tributary, to prove that it is not tributary by clear and satisfactory evidence. Cline v. Whitten, supra; Cresson Co. v. Whitten, 139 Colo. 273, 338 P.2d 278; Safranek v. Limon, 123 Colo. 330, 228 P.2d 975; and DeHaas v. Benesch, 116 Colo. 344, 181 P.2d 453.
My basic quarrel with my dissenting brethren is that, in my view, they would have us abandon our traditional role of serving as a reviewing court, and would apparently convert us into a "super" fact-finding body. Such would most certainly do violence to what has heretofore been our generally accepted function and area of operation.
Our function, as I see it, is not to determine whether the spring water arising on the Ranson property is, or is not, tributary in nature. This is the function of the trial court. The trial court has heard the several witnesses and has made its factual determination. At this stage of the proceedings, then, our only function is to determine whether there is evidence to support the determination thus made by the trial court. And in my judgment there is such supporting evidence.
As already noted, at the very outset there is a presumption that the spring water is tributary. And on that same side of the scales must be added the testimony of the hydrologist Hollenbeck.
On the other side of the scales should then be placed the testimony of the geologist Walters, together with certain bits of testimony tending to support his opinion on the matter. All of which adds up, in my mind, to a disputed issue of fact.
It is this setting that my dissenting brethren would step into a fact-finding role and, in effect, tell the trier of the facts that he should have believed the witness Walters in preference to the witness Hollenbeck, and that he should have determined that Walter's testimony was of such stature and standing as to overcome the presumption here involved. For us to do that would mean that we are getting into an area of operation where we have no right to be. It would be purely and simply a case of substituting our judgment for that of the trial court. It is for this reason that, regardless of my personal opinion on the merits of the matter, I am of the firm view that the judgment should be affirmed. In our understandable desire to "do justice," the inclination to set a trial court "straight" on disputed issues of fact may be great, but the inclination should be resisted.