J. E. Whitten, State Engineer of Colorado, et al., v. Lincoln D. Coit, Executor of the Estate of M. Humphries, Deceased, J. Lewis Ford, et al., 153 Colo. 157

Mr. Justice Moore delivered the opinion of the Court. The controversy now presented for determination was before this court in an original proceeding entitled Prinster, et al., v. District Court, 137 Colo. 393, 325 P. (2d) 938. A majority of the court determined that the controlling question should not be decided in an original proceeding and that the cause should proceed to final judgment to which a writ of error should be directed. A statement of the facts pertinent to our present inquiry is set forth in Prinster, et al., v.

District Court, supra, as follows: “In 1948 the District Court of Mesa County entered its decree in a general water adjudication proceeding and granted decreed priorities to eighteen claimants for the use of water from an alleged aquifer for domestic purposes. That decree became final nearly ten years ago. No review thereof has ever been sought in the trial court or this court.

On January 8, 1957, eight of the above mentioned claimants, v/ho were decreed priorities in the 1948 adjudication proceedings, commenced an action in the District Court of Mesa County, Civil Action No. 10599, naming as defendants (1) twenty-eight persons or firms, none of whom had any decreed rights, but who it is alleged have wells and are taking water from the aforesaid aquifer; (2) ten of the above mentioned eighteen claimants, decreed owners of water, who refused to join as parties plaintiff and were therefore made parties defendant; (3) three water officials of the state of Colorado, and (4) all unknown persons who claim any interest in the subject matter of the action. “The purpose of the action was to (1) obtain a mandatory injunction requiring the state engineer and his deputies to recognize and enforce the 1948 decree; (2) to enjoin those defendants who had no decreed rights from diverting water from the aquifer, and (3) to require the owners of all wells taking water from the aquifer to properly cement and equip them to the end that water not be wasted and lost. “A motion to dismiss the action was filed in behalf of ‘the defendants herein who are represented by their respective attorneys.’ The record does not disclose who of several defendants joined in the motion. “The reason assigned for dismissal is: “ ‘That this Court has no jurisdiction of said supposed cause of action set forth in the Complaint herein for the reason that the purported decree of this Court of August 23, 1948, * * * was null and void and without the powers of this Court under the Constitution and Statutes of this State ’ (Emphasis supplied.) “The attorney general, in behalf of the three state officials, filed a motion to dismiss and assigned as reason therefor: ‘ * * * the complaint does not state a claim against these defendants upon which relief may be granted.’ “On May 25, 1957, Judge Hughes denied defendants’ motions and granted them twenty days to answer, and on October 7, 1957, denied the motion to dismiss filed in behalf of the state officials and at that time ordered all defendants to ‘ * * * answer within ten days from the receipt of this Order, unless some Defendant desires to stand on Motion to Dismiss and if so, a written statement to that effect be filed with the Court within said ten-day period.’ (Emphasis supplied.) “None of the defendants elected to stand on their motions to dismiss and none answered.” Thereafter certain of the defendants instituted the original proceedings hereinabove mentioned.

Following announcement of the opinion in Prinster v. District Court, supra, a joint answer was filed by twenty of the named defendants and a separate answer was filed on behalf of the W. F. McCoy Company. The action was tried to the court and upon the evidence adduced, the trial court entered its Findings of Fact, Conclusions of Law, Judgment and Decree which includes, inter alia, the following: “1.

The underground waters are public and subject to private appropriation by putting to beneficial use, and the decree adjudicating priorities is valid.” The “decree adjudicating priorities” to which reference is made by the trial court is the decree entered in the 1948 adjudication proceedings, being Civil Action No. 10599 in the district court of Mesa County, Colorado.

By this 1948 decree, which purported to grant priorities to certain wells, the following determination of pertinent facts was made: “The wells involved in this proceeding are bottomed in three separate and distinct sands: the upper sand is known as the Morrison Sand, the second sand down is known as the Entrada Sand and the bottom sand as the Wingate Sand. These sands have no connection with each other and are separated by an impervious structure so that no water seeps or percolates from one to the other.

The water contained in these sands is not tributary to any natural surface stream. * * * ” (Emphasis supplied.) The trial court in the instant action adjudged, inter alia: “1. That the decree entered in Civil Action No. 7327 in this Court on August 23, 1948, is valid and in full force and effect as a decree fixing priorities for the use of public waters in the Entrada, Morrison and Wingate sandstones underlying lands in Mesa County, Colorado. “2. That defendants J. E. Whitten, State Engineer of Colorado; Frederick W. Paddock, Irrigation Division Engineer of Division No. 4; and Woodrow W.

Saunders, Water Commissioner of Water District No. 42, are hereby ordered to control and administer said underground waters and wells in the same manner and to the same purpose as in the case of diversions from public streams of the State of Colorado. In particular, but without limitation thereto, they shall require persons owning or possessing such wells to do the following: “ (

a) To install shutoff valves or devices to enable the flow to be cut off. “ (

b) To case and cement each well or take such other action as is necessary to prevent the running of water from one formation to another. “(

c) To cease all waste of water from such wells after it reaches the surface. “(

d) To install a meter on each well to measure the quantity of water taken therefrom. “ (

e) To allow the performance of such tests or measurements as may be required to determine from time to time the hydrostatic head or other facts concerning such well; and said officials shall make and maintain records of the date obtained by them regarding each such well.” In addition to the above quoted order on the state officers, the trial court enjoined numerous other defendants from, “Taking water from any well or allowing the same to flow from such well when such depletion of water shall cause the owners of senior decreed water rights to be unable to divert their decreed amounts of water by pumping from a well extending through the depth of the formation from which said water is decreed.” Other restraints not here material were placed upon said defendants.

The only plaintiffs in error who seek reversal of the judgment, or any part thereof, are the State Engineer and subordinate water officials who take exception to the mandate of the trial court that they shall, “ * * * control and administer said underground waters and wells in the same manner and to the same purpose as in the case of diversions from public streams of the State of Colorado.” All those persons who were defendants in the trial court and who do not join as plaintiffs in error were named as defendants in error and are parties to the action in this court.

The plaintiffs in the trial court are also named as defendants in error. Only one of them, namely J. Lewis Ford, has appeared in this court to contest the issues raised by the attorney general on behalf of the state officials. We are dealing here with waters which are admittedly not tributary to anjr natural stream. The purported decree of 1948 specifically so found; and it is conceded by the parties in the instant action that the waters contained in the aquifers involved are not waters which would ever become a part of any natural stream.

In the pre-trial conference memorandum dated June 10, 1959, the trial court recited that the waters involved were, “ * * * not tributary to any stream * * * .” In the final judgment and decree the trial court said, inter alia, “The basin, which is closed, is very large, and some of the aquifers are very thick.” (Emphasis supplied.) Counsel for J.

Lewis Ford, the only party to the action in this court who appears to dispute the position taken by the attorney general, makes the following statement as definitive of the issue for determination: “Ford is agreeable to resting the appeal on the questions of (1) whether the District Court had jurisdiction to give him a decree for water, not tributary to a stream, out of a confined aquifer and (2) whether the District Court can call on the State Engineer to assist in enforcing its sanctions against junior wells having no decrees. * * * ” The controlling question which we are called upon to determine is, whether the doctrine of prior appropriation of water to beneficial use is applicable to underground waters which are not tributary to any natural stream, and so results in a priority of right to the water thus used.

The constitution of the state of Colorado (Article XYI,

Section 5) provides: “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.” (Emphasis supplied.)

Section 6 of said

Article in pertinent part reads as follows: “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, * * * .” (At this point the

section names certain uses in the order of their preference.) (Emphasis supplied.) Thus the constitutional provisions referred to make specific reference in recognizing the “appropriation” doctrine only to the waters in “natural streams.” C.R.S. ’53, 147-11-1 to 6, provides for the appointment of a state engineer and defines his duties. We direct attention to a few pertinent passages from this

chapter as follows: 147-11-3: “The state engineer shall have general supervising control over the public waters of the state. [The public waters of the state as defined by the constitution are the waters in “natural streams.”] He shall make or cause to be made careful measurements of the flow of the public streams of the state from which water is diverted for any purpose, and compute the discharge of the same.” (Emphasis supplied.) In 147-11-6 we find: “The state engineer shall perform all duties imposed upon him by law, and when called upon by the governor, shall give his counsel * * * .” Our water adjudication statute was adopted in 1943.

A careful examination of the sections thereof leads to the conclusion that they were not designed or intended to apply to wells drawing water from a closed artesian basin from a supply which is not tributary to any stream.

For example in 147-9-1 the term “court” is defined as the court having jurisdiction of the adjudication of water rights in a particular water district. 147-13-1 provides that water districts are established to include lands irrigated from ditches “taking water from the following described rivers or natural streams of the state of Colorado * * * .” (Emphasis supplied.) The entire plan of the water adjudication act is based on the concept of “rivers and natural streams.” In Safranek, et al., v.

Town of Limon, 123 Colo. 330, 228 P. (2d) 975, it was held that there is a presumption that- underground water is tributary to a natural stream in the watershed in which it is found and that he who asserts that underground water is not tributary to a stream has the burden of establishing that fact. In the absence of such evidence the presumption prevails.

From the opinion in that case we quote the following: “Had it been established by the record in this case-that the water diverted by the town was nontributary ground water, such as an underground lake, the waters, of which are not a part or source of a natural stream, still the above-quoted statement upon which counsel for respondents base their claim of ownership of the water would not be a correct statement of Colorado law. [The statement referred to was that sub-surface waters not tributary to any stream are the property of the owners of the land as at common law.] * * * Whether in such case we should follow the California doctrine of reciprocal rights, * * * or whether we should extend one step-further our Colorado doctrine of first in time, first in right, need not now be determined. * * * ” It is also stated in Safranek that if there had been proof that the waters there involved were nontributary, “ * * * we would, in such case, be confronted with the question upon which there is an absence of statutory law in Colorado as well as of direct decision of our courts. * * * ” The Safranek opinion was announced March 5, 1951, and the Colorado Ground Water Act was thereafter-adopted in 1957.

The story behind that statute and an understanding of the original form in which it was presented to the legislature and the drastic changes which were made in it before adoption, will lead inescapably to the conclusion that the general assembly painstakingly and purposely excluded nontributary underground water from coverage under the doctrine of appropriation. We think it important to briefly trace the legislative history of the Ground Water Law of 1957.

Senate Bill 113 (Colorado Ground Water Law), as originally printed and introduced in the Colorado Senate, contained, inter alia, these significant provisions: “1.

AN ACT RELATING TO WATER, RELATING TO THE PRODUCTION, DISTRIBUTION, AND USE OF UNDER GROUND WATER; REGULATING AND PROTECTING SUCH PRODUCTION, DISTRIBUTION AND USE; PROVIDING FOR THE SETTLING OF THE PRIORITY OF RIGHTS TO SUCH USE; CREATING A GROUND WATER COMMISSION; PROVIDING FOR THE REGULATION OF DRILLING WELLS; PROVIDING PENALTIES FOR VIOLATION OF THIS ACT; AMENDING

SECTION 147-2-1, COLORADO REVISED STATUTES 1953; REPEALING

ARTICLE 18 OF

CHAPTER 147, COLORADO REVISED STATUTES 1953; AND REPEALING ALL OTHER ACTS OR PARTS OF ACTS IN CONFLICT HEREWITH. (Emphasis supplied.) “2.

SECTION 12. Priority in time shall give the better right as between appropriators of ground water. The use of ground water may be curtailed in the manner hereinafter provided when such use may, and to the extent that it does, materially and unreasonably affect the rights of senior appropriators.

In any proceeding before any officer, board, commission or court between surface and ground water users, there shall be no presumption that any ground water either is or is not tributary to any surface stream, and in the determination of whether the use of ground water in any case should be so curtailed, the only consideration shall be whether or not the use does so materially and unreasonably affect the rights of senior appropriators, which question shall be determined in accordance with the facts as they may appear to be and without resort to any presumption or burden of proof.

As among appropriators of ground water, a senior has no right to a continuation of the ground water level that existed at the time he made his appropriation, but has the right to a continued flow of water from the aquifer from which his. appropriation derives its supply, in such quantity, quality and at a level which will not materially injure the senior appropriator. “Whenever the commission shall determine, upon recommendation by the district advisory board or upon demand of an aggrieved appropriator, that withdrawals of ground water within a restricted district materially and injuriously affect the rights of senior appropriators of ground water, the state engineer shall either limit such withdrawals in the inverse order of the dates of such priorities, or impose such terms and conditions upon continued use as may be agreed upon by consultation with the district advisory board. “Whenever the state engineer shall make an order limiting withdrawals by priority or by imposing terms as hereinabove provided, upon request of any appropriator affected by this order, the commission shall hold a hearing to hear all pertinent objections to the order and at the conclusion of the hearing, the commission shall affirm the order or modify the same in such particulars as it may determine.

Such hearing, if need be, may be continued from day to day in order that all pertinent facts may be presented to the commission for its consideration. “Whenever the commission places a ground water aquifer on priorities, or limits a ground water use for the benefit of a senior appropriator or appropriators, any ground water user aggrieved by such order may petition the district court having jurisdiction over the adjudication of surface waters wherein his well is located to determine the extent of the aquifer from which he draws water, the relative priority dates of all appropriators drawing therefrom and the effects of such uses upon other ground water rights.

Such adjudication shall be conducted in the manner provided by law for surface water adjudications, except that in addition to the notice provided to be given in the adjudication of surface water, notice shall also be given by mailing notice.of the proceeding by first class mail to all water users who have filed statements of claim hereunder or obtained permits hereunder for appropriations of water from the same aquifer; said notices to be mailed at least sixty days prior to the date set by the court for the hearing on such adjudication.

The decree fixing the rights of the appropriators shall be filed with the state engineer and serve as the basis for further administration of priorities to the use of water from such aquifer. A ground water decree entered pursuant to this

section shall have the same effect for all purposes as a surface water adjudication decree and the failure of a ground water appropriator to appear in an adjudication of water rights to the aquifer from which he draws water shall have the same effect as the failure of a surface water appropriator to appear in a surface stream adjudication.” It is significant that

Section 12 as above set out was, on March 14, 1957, stricken in its entirety by the Senate (page 508, Senate Journal, 41st General Assembly), and further, that on March 18, 1957, the Senate further amended said bill by: (

a) Striking from the title as hereinabove set out, the words “providing for the settling of the priority of rights to such use,” (page 534, Senate Journal, 41st General Assembly); and (

b) providing for some 40 amendments thereto by striking therefrom the words “appropriator” and “appropriation” and substituting the words “user” and “use,” (pages 535 and 536, Senate Journal, 41st General Assembly.) Senate Bill 113 as above amended was referred to the House on March 26, 1957, and the House, realizing the futility of trying to delete all references recognizing the appropriation of artesian water, amended the Senate Bill in its entirety (page 575, House Journal, 41st General Assembly), which bill, as amended, with minor changes, is the one which was signed into law on May 1, 1957.

The legislative history as above stated shows that the legislature attempted to remove any doubt as to its intentions and that it contemplated under the provisions of this bill that there would be an equitable and efficient use of nontributary underground water not pursuant to any theory of appropriation. The undisputed testimony of the only expert whose evidence was introduced pointed up many differences between the “closed” aquifers with which we are here concerned and those which are not “closed” but are flowing tributaries to a natural stream.

We point out some of these differences which would pose insurmountable problems if an attempt should be made to apply the doctrine of prior appropriation. 1. The water bearing formations which are the sources for the water we are concerned with, consist of three principal formations, and two minor formations. The deepest is the Wingate, more than 1,000 feet beneath the surface, and about 350 feet thick. Above the Win-gate is an impervious structure, and above this is the Entrada sandstone. Again, above this is an impervious layer of stone, and above this, the Morrison formation.

The two lesser formations are the Burro Canyon and Dakota Sandstone, which have been and will be by us, largely ignored because of their lack of importance to the issues here. The aquifers are very “tight” and water moves through them very slowly. However, a large quantity of water is contained therein, and great pressures have built up, enough to raise the water the hundreds of feet to the surface. The fact that the pressure brings water from a well drilled into one of the aquifers above the top of the aquifer itself qualifies it as “artesian, as such is the definition “artesian.” 2.

These aquifers are still full of water notwithstanding withdrawals therefrom, and for many years to come will remain full, the effect of withdrawals being only to reduce pressure. Regardless of the amount of water in the aquifer, each well has a certain limit to its potential production by virtue of the nature of the aquifer and the fact that it will only release so much water in a given time. 3. The so-called interference between these wells is limited to an interference with pressure, since the aquifer is still full of water. 4.

A well will lose pressure by virtue of the withdrawal of water through that well, whether or not there is any other well in the aquifer. 5. Every well that is drilled into any part of any of the aquifers theoretically will reduce the pressure available at any other well, as well as the pressure in the well drilled. 6. The amount of interference is determined by three factors, i.e., the distance between wells, the rate of withdrawal, and the transmissibility of the aquifer. If the rate is low or the distance is great, the interference may be immeasurable for a period of years.

With these considerations in mind we consider some complex problems which the “appropriation” doctrine would be inadequate to handle. 1. Assume that the most junior well is many miles from the most senior and the intermediate well is close to the senior. The intermediate well has a greater effect on the senior in a shorter period of time, but ultimately and irretrievably the junior well will have an effect on both the intermediate and the senior well. Question: If “appropriation” doctrine is to be applied, which well should be restricted in order to protect the senior?

It should be borne in mind that the senior well itself has the effect of reducing its own pressure. 2. Assume the existence of fifteen wells of varying distances from the most senior. Each will ultimately interfere to a greater or less extent with the pressure in the senior well. Question: Under the doctrine of “appropriation” are all wells except the most senior to be shut down in order to protect the pressure in the senior well? 3. If this is not to be done, what standards of interference are to be applied, and are these standards to be determined by the court?

The Colorado Ground Water Act of 1957 does not form the basis of any legal justification for the order upon the state officials to “administer” the waters contained in the aquifers involved. The primary purpose of this Act was prospectively to protect underground waters and prevent waste in their production, distribution and use. It certainly was not the intention by the adoption thereof to provide a procedure for the adjudication of water rights. The Act deals only with regulation of the manner of construction of wells to prevent waste.

It is entirely prospective in operation, as indeed it must be to avoid the constitutional prohibition against the adoption by the legislature of any law which is “retroactive in its operation.” (Article II,

section 11). The Act provides that the Ground Water Commission may declare a given area to be a “tentatively critical ground water district” and once an area has been declared within such designation it “shall thereupon become subject to the regulations prescribed in this Article.” The regulations are that after such designation no new wells can be drilled, or the water drawn from existing wells be increased unless the user shall make application in writing to the state engineer for permission to do so and the application be approved. Except for the ministerial duty of issuing permits to existing wells and authorizing an enlarged use of such wells,

Section 10 of the Act is the only

section in which the legislature has authorized participation by the state engineer in its administration. The prospective nature of the Act is clearly illustrated by the following language: “The state engineer in cooperation with the commission shall have power to regulate the drilling and construction of all wells in the state of Colorado to the extent necessary to prevent the waste of water * * * .” It is difficult to find in this language any legislative authority for the engineer to function with reference to wells which had been drilled long prior to the adoption of the Act. Every well involved in this controversy was drilled long prior to the legislative enactment.

Section 10 provides two remedies for the state engineer in a situation where waste is involved. These are: 1. To go in and do the work and hold the driller liable on his bond. This can only apply to wells drilled since the adoption of the act. The wells here were drilled before the bond requirement came into existence, so there is no bond to make this remedy available. 2. The other remedy provided is to revoke the license of the driller. For the same reason as given above, this is inapplicable in the case of wells drilled before the statute became effective.

It is clear that these provisions were prospective only, yet the legislature was specifically legislating on the subject of waste to ground water from wells. Since the only provisions resulting from these labors affecting existing wells are provisions for their registration (147-19-2), the obvious intent being that nothing be done in respect to waste from existing wells.

The legislature wholly failed to charge the state engineer with any duties whatever with reference to existing wells, and the fact that it is not a good thing that water be wasted from an existing well cannot serve to charge the state engineer with any duty to interfere therewith in the complete absence of legislative direction designed to effect a cure and prevent the waste of water not tributary to any public stream, and which is, accordingly, private property. In the entire

article the word “appropriation” appears but one time and that is in

section 9 where we find: “The priority date of a ground water appropriation shall not be postponed to a time later than its true date of initiation by reason of failure to adjudicate such right in a surface water adjudication.” This provision obviously was intended to apply to decreed priorities to underground water which can properly be granted a priority under the doctrine of appropriation because it is public water, “ * * * since it belongs to the river it belongs to the people of the state by

article 16, section. 5 of her Constitution.” Nevius v. Smith, 86 Colo. 178, 279 Pac. 44. The quoted

section of the statute was necessary because the clear indication of numerous decisions of this court is that only that portion of underground water which supplies a natural stream is subject to the doctrine of appropriation in like manner as surface waters. As stated in Faden v. Hubbell, 93 Colo. 358, 28 P. (2d) 247, the reason it is thus subject to appropriation is “ * * * because they [tributary underground waters] belong to the river.”

Section 9 above quoted should be considered in the light of subsection 7, wherein we find the following: “A permit [to dig a well] shall not have the effect of granting or conferring a ground water right upon the user nor shall anything in this

article be so construed. * * * ” (Emphasis supplied.) If, however, underground water does not belong to the river and does not contribute to a natural stream it is not public water and is not subject to the doctrine of prior appropriation. We approve the language used by a distinguished member of the bar of this state, Mr. William R. Kelly, who has had a long and varied experience in matters involving water law in a well documented

article published in Yol. 31, Rocky Mountain Law Review, at page 165,171: “Ground water, in Colorado’s century of water use development is not to be regarded as property of the public, except in such instances where it is tributary to a natural stream. True, the Colorado court has declared, under the circumstances of some cases, that there is a presumption that all water is tributary to some natural stream; but that presumption is prima facie only, and is therefore rebuttable. It has long been recognized that farmers may sink wells on their farms to make reasonable use of the .ground water.

Public interest requires that a social economy built up in reliance on a principle so long recognized should not be disturbed. “The purpose of the Ground Water Act of 1957 is to provide administration facilities to control reasonable use and to provide a record of facts upon which such reasonable use can be determined. “It is submitted that the basis should not be, and is not, based on priority of diversion. The landowner has property in the water in his soil. It is a vested right which cannot be taken away by mere legislation. It is subject only to the reasonable use doctrine.

If the ground water is in motion so as to be tributary to a natural stream, or part of the stream water table, it has always been subject to priorities of appropriation on the natural stream.

But unless it is tributary to the natural stream, it is not subject to the law of appropriation.” Holding as we do that underground waters which are not tributary to any natural stream are not subject to the doctrine of appropriation, it necessarily follows that the original decrees entered by Judge Littler in the adjudication proceedings of 1948, under which the court purported to award priorities to the plaintiffs in this action, were void for want of jurisdiction over the subject matter and for a lack of power to adjudicate such rights.

It has long been established as basic law that the validity of a judgment depends upon the court’s jurisdiction of the person and of the subject matter of the particular issue it assumes to decide. Considering what is meant by the term “jurisdiction” it is well settled that this term includes the court’s power to enter the judgment, and the entry of a decree which the court has no authority to enter is without jurisdiction and void. A void judgment may be attacked directly or collaterally. Newman v. Bullock, 23 Colo. 217, 47 Pac. 379; Atchison, Topeka and Santa Fe Railway Co. v.

Board of County Commissioners, 95 Colo. 435, 37 P (2d) 761; Greene v. Phares, et al., 124 Colo. 433, 237 P. (2d) 1078; United States National Bank of Denver v. Bartges, 120 Colo. 317, 210 P. (2d) 600. Davidson Chevrolet, Inc., et al., v. City and County of Denver, 138 Colo. 171, 330 P. (2d) 1116; Thompson v. McCormick, 138 Colo. 434, 335 P. (2d) 265; West End Irrigation Company, et al., v. Garvey, Exec’r., et al., 117 Colo. 109, 184 P. (2d) 476. The judgment of the trial court is reversed and the cause remanded with directions to dismiss the action. Mr. Justice Hall dissents.