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Show In the Spring of 1928, dvring a severe water shortage in the river, the flow became so scant that the two State Engineers agreed that the most bene- ficial use of the water could be obtained by permitting each State to enjoy the entire flow in alternating periods of 10 days. On a day in June, 1928* a Deputy State Engineer, under direction of the State Engineer, closed the headgate of the la Plata River and Cherry Creek Ditch, as well as the head- gates of all other ditches in the State of Colorado? in order to permit the entire flow to go across the interstate line into New iiexico. At the time this action was taken, there were only 57 cubic feet per second of water in the stream in Colorado. In order to give the La Plata River and Cherry Creek.Ditch Company the water to which it claimed to be entitled under its Colorado decree, it would have been necessary to curtail deliveries to Hew Mexico greatly* due to loss- es in transit. The ditch company immediately brought suit to enjoin the State Engineer of Colorado and his subordinates from closing its headgate* charging that there was water in the stream to which it was entitled under its decree, and that his administration of the stream was contrary to the laws of Colorado and the Court decrees under which the ditch company had acquired its rights* The defense of the water officials was based upon the proposition that the headgate was closed in enforcement of the provisions of the La Plata River Compact. The ditch company replied that the State water-administra- tive officials had ignored Court decrees entirely and were claiming the right to distribute, prorate, and rotate the waters vdthout regard to the decrees of the laws of Colorado, Th.e case was first tried in the local District Court in May, 1929* al- though the decision was not rendered until June* 193O« The trial Court dis- missed the complaint and held that the State water-administrative officials were distributing the river flow in conformity with the Compact, and that no rights of the ditch company had been violated. The ditch company pro- secuted a writ of error to the Colorado State Supreme Court* which reversed the lower Court for the reason that a vested property right of the ditch company had been taken without due process of law and without just compen- sation, contrary to the provisions of the State and Federal Constitutions.^ In discussing the right to rotate the use of the entire flow in alter- nate pei-iodsj the Court said that "if private rights may be stripped from the citizen by state 'compacts* ' by legislative fiat, by commissioners, by the uncontrolled discretion of state engineers, then 'due process' is dead in Colorado." Again the decision says: "It (the coapact) is. a mere com- promise of presumably conflicting claims, a trading therein, in which the property of citizens is bartered without notice or hearing., and with no regard -fco vested rights." 56Hinderlider et al. vs. La Plata River Cherry Creek Ditch Company, 93 Colorado 12fU -108- |
