explaining that “[t]he concern of the city is to assure an adequate supply to the public which it serves. In establishing a beneficial use of water under such circumstances the factors are not as simple and are more numerous than the application of water to 160 acres of land used for agricultural purposes. A specified tract of land does not increase in size, but populations do, and in short periods of time. With that flexibility in mind, it is not speculation but the highest prudence on the part of the city to obtain appropriations of water that will satisfy the needs resulting from a normal increase in population within a reasonable period of time.”
How later courts described this case
- explaining that “[t]he concern of the city is to assure an adequate supply to the public which it serves. In establishing a beneficial use of water under such circumstances the factors are not as simple and are more numerous than the application of water to 160 acres of land used for agricultural purposes. A specified tract of land does not increase in size, but populations do, and in short periods of time. With that flexibility in mind, it is not speculation but the highest prudence on the part of the city to obtain appropriations of water that will satisfy the needs resulting from a normal increase in population within a reasonable period of time.”
Written by the judges who cited it.
The opinion
Mr. Justice Knous
specially concurring.
Substantially, as stated in the opinion of the court, the city of Denver here asserts, first, that in giving the city its priorities from the Western Slope streams the trial court erred in placing in the decrees certain restrictive provisions, which are set out in the opinion, and, second, that the trial court improperly denied the city any priorities whatever for general irrigation purposes. As to the first contention the opinion concludes that the trial court was wrong in inserting the questioned restrictive conditions in the decretal orders but resolved rightly concerning the second contention. In making this disposition the opinion states: “In our opinion, there is no basis upon which the trial court could have made a finding of a beneficial use for irrigation outside of the area served by the Denver Municipal Water System, The need of water to satisfy beneficial use, contended for by the city, necessarily must apply to the system area. This, however, as we have heretofore stated, does not prohibit the city from leasing the water not needed for immediate use, under our decision in Denver v. Brown, supra, and chapter 172, supra, subject to the provisos therein. It, therefore, was not error for the trial court to deny the city an appropriation based on a beneficial use for irrigation purposes outside of the Denver municipal water system area.” With the result of this conclusion I agree, but my convictions require that I express my nonconcurrence with *212 the italicized portion of the foregoing statement which epitomizes more extensive expressions concerning the subject of leasing in other parts of the opinion.
The moment it is settled, as we have determined, that the attempted imposition of the challenged restrictions in the decree legally were unwarranted, the question of the right of the city, and its extent, to lease such water of the priorities herein awarded as may not be needed for its immediate use, in my opinion, becomes moot. In so far as the unwarranted restrictions may have affected any existing general right of the city in this particular, the prohibition automatically is banished by the striking of the questioned provisions from the decree.
It cannot be questioned that in Denver v. Brown, 56 Colo. 216 , 138 Pac. 44 , where, as Justice Bock in the opinion points out, the city appeared in the dual capacity of a consumer and carrier of water, limitations in agreements between the city and contracting agricultural users under the ditch, subjecting the delivery of water to the latter to the needs and requirements of the city were treated as leases of water and their validity upheld. Nor can it be doubted that section 398, chapter 163, ’35 C. S. A. (c. 172, S. L. ’31), quoted in the majority opinion, said by the city to be merely declaratory of the pre-existing law, presumably as announced in the Brown case, amounts to a legislative recognition of the status arising from the leasing of water not needed for its immediate use by a municipality of the class of Denver.
While these acknowledgments of a right to leasé under the circumstances disclosed in the Brown case are pertinent here as showing the repugnancy of the denounced restrictions in the decree before us, I cannot believe they warrant the affirmative extension of at least an equivalent right to the priorities herein under consideration, as I believe the opinion of the court does.
I assume no one will contend that the position of the city in the Brown case has entire factual identity with *213 its role here as an appropriator from a natural stream. In the latter capacity, as is any appropriator of water, it is subject to all constitutional and statutory provisions designed to protect the rights of junior appropriators from the same source of supply. By operation of law these limitations are read into every decree. Fort Lyon Canal Co. v. Chew, 33 Colo. 392 , 81 Pac. 37 ; Baker v. Pueblo, 87 Colo. 489 , 289 Pac. 603 ; New Mercer Ditch Co. v. Armstrong, 21 Colo. 357 , 40 Pac. 989 ; White v. Nuckolls, 49 Colo. 170 , 112 Pac. 329 .
None of these important considerations were directly involved in the Brown case nor in the case of Colorado Springs v. Colorado City, 42 Colo. 75 , 94 Pac. 316 , cited by the city as indicative of the power claimed. Even if the power of a municipal appropriator of water to sell or lease a portion of the same to third parties is conceded, its exercise nevertheless must be in harmony with the law controlling our irrigation system.
As I apprehend, the determination of the extent of the exercise of this asserted right must depend upon the circumstances of each given case as it may originate, and not by the pronouncement of a general principle or the extension of a decision arising under one state of facts to another and dissimilar situation.
Experience augurs that in future controversies physical facts, such as the season of the year, the flow of the stream, the uses involved, the need of the junior appropriators and the location of the diversion points, impossible of accurate forecast, will be of paramount and controlling importance. These situations should be met only when they arise and not be hypothetically prejudged.
It may be that the majority opinion contemplates that determination of these questions may be so reserved, but my apprehension that it implies otherwise, leads me to specially express the extent of my concurrence on this feature of the case.