Ranson v. City of Boulder & Public Service Co. , 161 Colo. 478 ( 1967 )

Mr. Justice McWilliams

delivered the opinion of the Court.

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.