44 Colo. 360 | Colo. | 1908
delivered the opinion of the court:
In a special proceeding brought for that purpose under the statute (Session Laws 1903,- p. 278), of which due notice to the parties affected was given, the district court rendered a decree permitting the two petitioners to change from the Stubbs and Miller ditch,' which takes water from Fountain creek in water district No. 10, El Paso' county, to ditch No. 2 of the Fountain Valley Company farther up the same stream and in the same water district, the point of diversion of their right to the use of water for irrigation, each petitioner claiming a one-sixth interest in the quantity theretofore awarded to the Stubbs and Miller ditch by the general statutory decree of 1882, which settled the relative priorities of the ditches in that water district. The respondents, who are owners of the Laughlin ditch in the same district, whose headgate is between the headgates of the Stubbs and Miller and the Fountain Valley ditches, about two' and a half miles above the former and one-half to three-fourths of a mile below the latter, have appealed from this permissive decree.
1. The first objection which they urge thereto is that petitioners failed to show that they are owners
2. During the course of the hearing it developed that one of the petitioners, The Fountain Valley Land & Irrigation Company, had no interest in the water right, ownership of which it alleged in • the petition, except such as is derived from a contract of sale which it had made with May L. Skinner, which contract had not then matured and legal title was still in Mrs. Skinner. A continuance of the hearing was had for several months, and on its resumption Mrs. Skinner having died after the contract was made, the executors of her estate and her sole heir at law and devisee under her will, under authority given them by the county court of Arapahoe county in which the estate was being administered, filed a written statement or petition in this proceeding, wherein, after reciting the making of the contract between Mrs. Skinner and the irrigation company, and that it had been substantially complied with up -to date by the latter, they stated that they consented to the proposed change in the point of diversion. Respondents protest that the court committed error in permitting this paper to he filed, and say that as the executors and heir and devisee never asked to he made, and were not made, parties to the proceeding, it was irregular and prejudicial to respondents for
3. Under this statute we consider it necessary that a petitioner show a right to the use of a certain quantity of water from a public stream for irrigation as a condition precedent to obtaining a decree permitting a change in its point of diversion. To decree in favor of such change where the volume is not fixed would probably lead to useless litigation between rival claimants arid the water commissioner. As evidence of such right petitioners, over respondents’ objection, introduced what is referred to- in the abstract as “Exhibit A,” which, on its face, purports to be that subdivision of the general statutory decree of 1882 pertaining to the Stubbs and Miller ditch, the one-sixth interest in which owned by each petitioner they asked to have transferred. The clerk testified that he presumed the exhibit was a part of the files, as it was found in his office and afterwards bound in book form. On the back of it was the in
In view of further proceedings the following observations are for the guidance of the trial court. The general statutory decree was required to be entered in the judgment book of the court. As thus spread on the records it is the best evidence of what. was adjudicated in that proceeding. If it is different from the decree as reported by the referee, the presumption is the latter was modified by the court after the report was filed and before the entry was made. Upon the showing in this record, it is doubtful if “Exhibit A” was sufficiently identified to justify its admission as evidence at all. If, as claimed by respondents, it had been altered, the court should not have admitted it. If the decree as entered is different from the decree as actually pronounced, those making such contention should make the entry speak the truth. Until it is so corrected, it is -binding on all the parties and prevails over the exhibit, even though the latter contains what the court decided.
Neither in the exhibit nor in the record entry was the quantity of water specified in second cubic feet. Petitioners say that in Broadmoor Dairy & Live Stock Co. v. Brookside Water & Improvement
The length of time petitioner may use the water after the point of diversion is changed, if not the same question as enlarged use, is analogous thereto ; and probably ought not to be decided in this special proceeding — unless such duration necessarily results in an enlarged use, as explained later on — but should be litigated, if at all, in an appropriate proceeding in case of a controversy between the parties over the same after the change is made. The volume in cubic feet per second, however, should be1 ascertained in this proceeding before entering a decree permitting the change to be made.
4. As has been frequently decided by this court, the right to a change of the point of diversion or place of use is not an absolute, but a qualified, right, which section 2 of the statute under which this proceeding was instituted recognizes by providing that such change, if it injuriously affects the vested rights of others, shall not be made, or if such injury appear, the court shall decree the change only upon such terms and conditions as may be necessary to prevent such injurious effects, and if impossible to make such terms and conditions, the application must be denied. The evidence in this case without contradiction shows that the respondents as owners of the Laughlin ditch would be injuriously affected if the prayer of the petitioners was granted. -The Stubbs and Miller ditch, of which each of the petitioners alleged a one-sixth ownership, has priority No. 6 on the Fountain creek in this district. Respondents are owners of the Laughlin ditch, which has priorities Nos. 10 and 17. The petitioners propose to change the point of
In this connection it is proper to consider the objection of respondents that the court refused their offer of evidence to show the change in the. conditions affecting them which would ensue if the new point of diversion is permitted. The court did give full scope to the parties in the production of evidence in respect to the flow of seepage and spring water between the headgates of the Laughlin and the Stubbs and Miller ditches, and in this particular respondents have no just cause of complaint. It appears, however, that petitioners proposed to change not only the point of diversion, but the place pf use, and to carry the volume of water which they claimed to own through a. new ditch and for the irrigation of other lands and for filling a reservoir at a distance of four or five miles beyond the lands to irrigate which the appropriation was originally made. Respondents claim, and offered evidence to show, that thereby there would necessarily be an enlarged use, both as to volume and time. In Irrigation Co. v. Water S. S. Co., 29 Colo. 469, we said that it was not proper, in a proceeding to change the point of diversion, to go into- the question of an enlarged use which the petitioner might make' of the water after the point of diversion was changed; but this was immediately qualified by the statement that if the evidence showed that the changed conditions necessarily, or by -reasonable inference, would result in an enlarged use, the petition should not be granted. In the light of the offer made by respondents, the court should have permitted pertinent evidence, if any, to show that the proposed change would necessarily cause the injury which they alleged would be inflicted.
Chief Justice Steele and Mr. Justice Gabbeut concur.