Opinion
No. 14,002.
Decided July 6, 1937. Rehearing denied July 29, 1937.
Action in injunction to protect decreed water rights, and involving state compact between New Mexico and Colorado. Judgment for plaintiff.
Affirmed.
1. WATER RIGHTS — State Compacts — Adjudicated Rights. Provisions of water compact between New Mexico and Colorado concerning water reviewed, and the opinion in La Plata Co. v. Hinderlider, 93 Colo. 128, upholding the Colorado adjudicated decrees, adhered to.
2. STATES — Water Rights — Compacts. The validity and interpretation of water compacts between states are matters for judicial construction.
3. WATER RIGHTS — State Compacts — Adjudicated Cases. Opinion of the Court in La Plata Co. v. Hinderlider, 93 Colo. 128, elucidated.
Error to the District Court of La Plata County, Hon. John B. O'Rourke, Judge.
Mr. BYRON G. ROGERS, Attorney General, Mr. NORRIS C. BAKKE, Deputy, Mr. CHARLES ROACH, First Assistant, Mr. SHRADER P. HOWELL, Assistant, Mr. RALPH CARR, Mr. JEAN S. BREITENSTEIN, for plaintiffs in error.
Messrs. McCLOSKEY BEISE, for defendant in error.
Mr. L. WARD BANNISTER, amicus curiae, Mr. MARK H. HARRINGTON, of counsel.
THE original judgment in this cause was reversed by this court July 3, 1933, and a rehearing denied September 18, following. La Plata Co. v. Hinderlider, 93 Colo. 128, 25 P.2d 187. An appeal was then taken to the United States Supreme Court and the cause was dismissed there for want of final judgment below. Hinderlider v. La Plata Co., 291 U.S. 650, 54 Sup. Ct. 557. It was retried below, by stipulation, on the bill of exceptions, and judgment entered as we had formerly directed. To review that judgment the plaintiffs in error prosecute this writ. Since proceedings following dismissal by the United States Supreme Court were merely for the purpose of perfecting the record no restatement of the issues is now required. Our former decision must be read in connection with, and as a part of, this. The argument in behalf of the company has been elaborated and taken a slightly different turn and amicus curiae has appeared and presented a new angle. While now technically a new suit our former decision is doubtless the law of the case and this presentation is in fact a rehearing. It is doubtful if anything of value can here be added to our former opinion. But since portions of it have apparently been misunderstood, and we think misconstrued, we comment further with quotations from the compact.
[1, 2] Counsel for plaintiffs in error now say that the object of the compact "was to determine what water Colorado owns and what water New Mexico owns," and that it settles that question. If so our opinion was based upon an erroneous assumption and reached an erroneous conclusion. We therein said: "There is not the slightest pretense, either in this compact itself or in the proceedings leading up to it, to a decision of the question of what water Colorado owns, or what water New Mexico owns, or what their respective citizens own," and we still think that statement correct. The compact says its purpose is "to provide for the equitable distribution of the waters." That may be done, and on the record before us has been done, in defiance of ownership. The compact says nothing about adjudication of ownership. It says the waters "are hereby equitably apportioned between the signatory states, including the citizens thereof." But after loosely using the term "equitably apportioned" it expressly repudiates the implied principle by the explicit assertion that neither state "concedes the establishment of any general principle or precedent by the concluding of this compact." Nor does the compact finally settle anything. It expressly repudiates the idea of final adjudication, for it declares: "This compact may be modified or terminated at any time by mutual consent of the signatory states and upon such termination all rights then established hereunder shall continue unimpaired." If this means that water users shall continue as under the compact then the compact is not terminated. If the compact is terminated distribution will thereafter be according to the laws and court decrees of the respective states. The quoted provision is therein clearly contradictory. Its only unqualified statement is that the compact "may be terminated at any time." Thus, beyond doubt, it is a mere temporary expedient which settles nothing. It does not recognize "equitable apportionment" as against appropriation by diversion and use. It does not recognize appropriation by diversion and use as against equitable apportionment. It does not recognize a combination of the two. It does not disclose whether the equitable apportionment it talks about is an equitable apportionment as of the date when consumers diverted and applied the water, or now, or as of some intervening or future date. If we assume it settles ownership it fails to relate the term to time. If Colorado had a right to grant the company its decree at the date thereof that decree cannot now be abrogated and the water given to another on some theory of equities arising since. Were it otherwise a new compact, completely changing the allotment and plan, could be entered into next year, and another the next. All the water could be given to New Mexico over a five year period, then all again transferred to Colorado, and these priceless property rights be thus made to rest upon the shifting and uncertain base of equitable apportionment as determined by temporary conditions or advantages. A careful examination of the compact convinces us that such is the theory upon which it is drawn.
Counsel for plaintiffs in error disclose their confidence in the power of the states to settle such controversies by the sacrifice of the property of their citizens when they assert that "The rights of an individual are always subordinate to the rights of the state," citing United States v. Schooner Peggy, 1 Cranch 103, 5-8 L. Ed. 49, thus invoking the judicial statesmanship of Chief Justice Marshall. They apparently forget however, that while paragraph 1, section X article 1 of the federal Constitution forbids any state to pass a "law impairing the obligation of contracts," no such constitutional inhibition is laid upon the general government.
Our act authorizing the appointment of a commission — chapter 244, page 803, S. L. 1921 — expressly states as the principal duty of that commission the execution of a compact "fixing and determining the rights of each of said states to the use, benefit and disposition of the waters of said stream," yet the compact contains no word concerning rights.
Arguments of amicus curiae and counsel for plaintiffs in error put this compact upon the same footing as a final judgment of the United States Supreme Court. Were that assumption justified there would be nothing here for us to decide; but the compact, its validity and interpretation, are matters for judicial construction.
In view of repeated misinterpretation of our former opinion and repeated assumptions of counsel as to the far reaching effect thereof it is deemed advisable to close with a statement of a few things we do not decide, i. e.: We do not decide that states cannot settle disputed rights by compact; that in so doing they cannot follow a particular rule or a combination of rules; that they can grant what they do not own; that if they do the grantee gets anything; that they cannot admit they have made grants beyond their rights and thus nullify such grants; that the doctrine of priority is to be upheld regardless of state lines; that rotation which deprives an appropriator of no actual advantage is not a proper method of use nor that this compact is void for all purposes as between any possible parties.
Our former opinion is adhered to, and the judgment herein is affirmed.
MR. JUSTICE YOUNG dissents. MR. JUSTICE BAKKE not participating.