Opinion
No. 24570
Decided June 12, 1972. Rehearing denied July 24, 1972.
Owners of wells and decreed water rights — within area designated by Colorado Ground Water Commission as a statutory ground water basin — protested its designation as a ground water basin. The lower court upheld the designation by the Commission and owners brought error.
Affirmed
1. APPEAL AND ERROR — Evidence — Viewed — Favorable — Upholding Judgment. Evidence will be viewed by the Supreme Court in the light most favorable to upholding the judgment.
2. TRIAL — Credibility — Weight — Court. Considerations of credibility of witnesses and the weight to be accorded their testimony are for the trial court.
3. APPEAL AND ERROR. — Evidence — Support — Finding — Upheld — Review. If there is any evidence to support a lower court finding, it will be upheld on review.
4. WATER RIGHTS — Ground Water — Designation — Commission — Findings — Support — Evidence — Judgment — Area — Basin. Finding of trial court — that ground water in area designated by Ground Water Commission as a ground water basin would not have been available to and required for fulfillment of decreed surface rights in its natural course and that such ground water was not adjacent to a continuously flowing natural stream where ground water withdrawals had constituted the principal usage for at least 15 years preceding January 1, 1965 — was supported by the evidence which sustained judgment upholding designation of area as ground water basin.
Error the District Court of El Paso County, Honorable John N. Mabry, Judge.
Saunders, Dickson, Snyder Ross, P.C., Glenn G. Saunders, John M. Dickson, for plaintiffs in error.
Duke W. Dunbar, Attorney General, John P. Moore, Assistant, Ben L. Wright, Jr., Special Assistant, James D. Geissinger, Special Assistant, for defendants in error State of Colorado, Ground Water Commission of the State of Colorado, and Clarence J. Kuiper, individually and as the State Engineer of the State of Colorado.
George W. Woodard, for defendants in error Squirrel Creek-Ellicott Water Association, T.R. Schubert, Everett Handle, and Frances Guthrie.
On May 1, 1968, the Colorado Ground Water Commission entered an order designating a 350 square mile area in east central El Paso County as a ground water basin pursuant to 1965 Perm. Supp., C.R.S. 1963, 148-18-5. Appellants own wells and decreed water rights within the area and protested its designation as a ground water basin as defined in 1965 Perm. Supp., C.R.S. 1963, 148-18-2(3).
Being unsuccessful before the Water Commission, the protestants appealed to the district court, and a de novo hearing was held pursuant to 1965 Perm. Supp., C.R.S. 1963 148-18-14. The lower court upheld the designation by the Commission. We affirm.
At oral argument of this case, counsel for appellants admitted that, in reality, there was only one issue to be resolved by this court, namely, whether there was evidence to support the finding made by the lower court in pertinent part as follows:
"The Court finds and determines from the evidence adduced before the Ground Water Commission and the testimony and exhibits at the trial in this court clearly [sic] establish [1] that the ground water herein involved in its natural course would not be available to and required for the fulfillment of decreed surface rights; [2] that such ground water is not adjacent to a continuously flowing natural stream wherein ground water withdrawals have constituted the principal water useage [sic] for at least fifteen years preceding January 1, 1965, * * *."
[1-4] The general rule is that the evidence will be viewed by this court in the light most favorable to upholding the judgment. Considerations of credibility of witnesses and the weight to be accorded their testimony are for the trial court. With these principles in mind, if there is any evidence to support lower court finding, it will be upheld. See Bennett v. Accounts, Inc., 155 Colo. 461, 395 P.2d 225. In the instant case, there is such evidence.
The judgment is affirmed.