ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a complaint brought by the plaintiff in error to quiet his title to alleged water rights on Tarryall Creek, a tributary of the South Platte River, and to enjoin the defendant Irrigation Company and the state officials from closing the plaintiff's ditch under an assertion of the Irrigation Company's superior right. The defendants justified under a decree establishing the Irrigation Company's priority and a statute making the decree conclusive after four years. The plaintiff replied and argued that the statutes if construed to have the alleged effect took his property without due process of law contrary to the Fourteenth Amendment. The defendants demurred and the state courts upheld the defence. 56 Colorado, 545.
The case is this: In 1879 the State established water districts, the plaintiff's water rights being in district 23 and the defendant's in district 8 directly below 23 upon the South Platte. Jurisdiction was conferred upon the District Courts for the proper county to adjudicate all questions concerning priority of appropriation and other questions of right between "owners of ditches drawing
water for irrigation purposes from the same stream or its tributaries within the same water district." Laws of 1879, Feb. 19, § 19, p. 99. Rev. Stats. 1908, § 3276. The provisions were enlarged by an Act of February 23, 1881, p. 142, but still seemingly confined to controversies between parties in the same district, until they came to the sections of limitation. By § 34 the act was not to prevent suits within four years, and by § 35 after "four years from the time of rendering a final decree, in any water district, all parties whose interests are thereby affected shall be deemed and held to have acquiesced in the same . . . and thereafter all persons shall be forever barred from setting up any claim to priority of rights to water for irrigation in such water district adverse or contrary to the effect of such decree." Laws of 1881, pp. 159, 160. Rev. Stats. 1908, §§ 3313, 3314. Later statutes were enacted in 1887 and 1903 creating divisions and requiring the Irrigation Division Engineers to tabulate the priorities and rights as established by decree in the different districts of their divisions and to administer the use of water accordingly. But these statutes are not material. The parties' rights were held to be fixed under the Act of 1881.
On December 10, 1883, the proper court for the defendant company's district made a decree that the company was entitled to a priority of right to the use of water for irrigation purposes of 1184 cubic feet of water per second from the South Platte and its tributaries, dated January 18, 1879, which was prior to the date of the plaintiff's rights. It will be observed that the Act of 1881 was in force when this decree was made. The plaintiff contends that the construction of § 35 of the act, as applying to parties in a different district, this construction having been first announced after the period of limitation had gone by, had the effect of a new statute declaring his rights barred by time already elapsed, and attempted to
make conclusive against him a proceeding to which he was not a party and in which he would not have been heard.
So far as the last objection goes the answer is that if it be true that the plaintiff was not entitled to be heard on the defendant's decree, still there was nothing to hinder the State from providing that if he took no step to assert his rights within a reasonable time after the judicial assertion of an adverse title, the decree being a public fact, he should lose those rights. See Barker v. Harvey, 181 U.S. 481. Soper v. Lawrence Brothers Company, 201 U.S. 359, 367, 368. American Land Co. v. Zeiss, 219 U.S. 47, 60. Montoya v. Gonzales, 232 U.S. 375, 378. The answer to the first half of the plaintiff's contention is no less plain. It is that the construction of a statute does not take a party's property without due process of law simply because it takes him by surprise and when it is too late for him to act on the construction and save his rights. That is all that the plaintiff has to complain of. There was no different construction of the statute by the court before the limitation had run, that might have lulled him to repose. The only decisions relied upon by the plaintiff as tending to favor him are Nichols v. McIntosh, 19 Colorado, 22 and Sterling Irrigation Co. v. Downer, 19 Colorado, 595, which were not rendered until 1893 and 1894, and both of which are consistent with Fort Lyon Canal Co. v. Arkansas Valley Sugar Beet & Irrigated Land Co., 39 Colorado, 332, establishing the construction followed in this case. It should be added that however strong the argument for a different interpretation, the one adopted also was strongly supported, so that there can be no pretence that a perverse reading of the law was used as an excuse for giving a retrospective effect to the law of 1903. The decision was absolutely entitled to respect.
It is suggested that the cases cited ...