## Facts

- The City of Golden purchased two senior, adjudicated Clear Creek irrigation rights formerly used through the Swadley Ditch: 0.844 cfs (Priority No. 13, May 14, 1861) and 0.92 cfs (Priority No. 21, June 1, 1862).
- The City petitioned to change (1) the point of diversion upstream about five miles to the Church Ditch headgate and (2) the type of use from irrigation of farm lands to municipal/domestic use within the city, including lawns and gardens.
- Junior appropriators diverting from Clear Creek, including Farmers Highline Canal & Reservoir Company, protested, asserting the change would injure their vested rights by increasing historical consumptive use or altering return-flow patterns.
- The district court granted the petition and authorized diversion of the full 1.764 cfs at the new headgate for municipal uses, subject to certain conditions.
- The protestants sought review, arguing the decree allowed an enlarged use, relied on insufficient findings, and effectively shifted the burden of proving injury to the protestants.

## Issues

1. Whether a change in point of diversion and type of use could be approved where the decree did not adequately confine the right to its historical beneficial use and risked enlargement to the injury of other appropriators.
2. Whether the applicant for a change of water right bears the burden to prove the change will not injuriously affect vested rights, and whether that burden was misallocated.
3. Whether the evidentiary record and findings were sufficient to support a no-injury determination and appropriate protective conditions.
4. Whether additional appropriators using the Swadley Ditch were necessary parties to a binding change decree.

## Decision

- The Colorado Supreme Court reversed the district court’s decree and remanded for further proceedings.
- The Court held the decree was deficient because it did not adequately prevent an enlarged use of the decreed rights and did not rest on sufficient findings demonstrating absence of injury to other appropriators.
- The Court reaffirmed that the applicant for a change bears the burden of proving the change will not materially injure vested rights of others.
- The Court directed that, on remand, the trial court must make more precise findings regarding historical use (including actual application and return flows) and impose conditions that confine any changed right to its historical limits; the court also was to consider whether all necessary parties were before it.

## Legal Principles

- A decreed water right is a vested property right; its owner may change the point of diversion or manner/type of use only if the change does not injuriously affect vested rights of other appropriators.
- A change decree must prevent enlargement by limiting the changed right to the historical beneficial use, measured by historical practice (including timing, place, and the amount consumptively used and reflected in return flows).
- The applicant seeking a change has the burden to prove, by competent evidence, that the proposed change will not cause material injury to other appropriators; the decree cannot proceed on an assumption of no injury absent protestants proving harm.
- Appellate deference to trial-court factfinding does not insulate a decree that applies the wrong burden of proof or approves a change without findings and conditions adequate to protect other vested rights.

## Conclusion

The court reversed approval of Golden’s proposed diversion and municipal conversion because the decree and findings did not adequately confine the changed right to historical use or establish, under the applicant’s burden of proof, that other appropriators would not be injured; the case was remanded for precise historical-use findings, protective limitations, and consideration of necessary parties.


Farmers Highline Canal & Reservoir Co. v. City of Golden, 272 P.2d 629 (Colo. 1954)