48 Colo. 343 | Colo. | 1910
delivered the opinion of the court:
This action was brought by. The Boulder and Left Hand Ditch Company, appellant here, against the^water commissioner of water district No. 6, the division engineer of division No. 1, of which water district No. 6 is a part, and the state engineer, appellees here.
The pleadings and evidence show that Boulder creek, in its course through the city of Boulder, crosses Twelfth street, which is carried over the stream by a bridge known as the Twelfth Street Bridge. Just below this bridge is a diverting dam and headgate, through which water is taken from the creek into a common channel of several ditches, usually referred to as the Dry Creek ditches. These several ditches, irrigating by means of laterals out of this common channel, have the same point of diversion, a common headgate, and the same channel for nearly a mile of their course immediately below the point of diversion from Boulder creek, to a point where the Boulder and White Rock ditch branches to the north from the common channel; about one-half mile farther down this channel the D. U. Nichols ditch diverges therefrom to the south and east; about one-half mile east of the diverging point of the
In the original water adjudication proceedings for irrigation in water district No. 6, in the district court of Boulder county, these various ditches were' all decreed independent priorities to the use' of water from Boulder creek, and in their respective decrees the court found that the ditches above mentioned had' their point of diversion near the Twelfth Street bridge, in the city of Boulder, and there diverted their respective amounts of water through á common headgate.' The evidence shows that the'original Dry Creek ditch was built by D. H. Nichols, in the early sixties, and that the original channel and diverting works were enlárged, from time to tiine, upon the construction of other ditches. D. H. Nichols,, until' the time of his death in 1900, was the sole owner of the original Dry Creek ditch, which was granted a priority in the adjudication proceedings as of June' 1, 1862, for ten second cubic feet of water. At the time- of his death, Mr. Nichols was also the owner .of an undivided interest in‘the Wellman, Nichols ánd Hahn ditch, which had been awarded, in the adjudication of 1882, a priority of about ten second cubic feet of water. There is some conflict in the evidence . as to the extent of this undivided interest, but that'' Nichols, at the time of his death, owned some interest in this ditch and its decreed priorities, is fully established.
As early as 1888 the plaintiff company, under agreement with Nichols, made use on its own lands
The North Boulder Farmers’ Ditch Company, a
Upon final hearing, the trial judge dismissed the case, on the theory that a question of the change of point of diversion of the waters decreed to the Dry Creek ditch and the Wellman, Nichols and Hahn ditch was involved, and that no decree changing the point of diversion could properly be rendered in this action, but that an application should be made under the statute, which expressly provides for such proceedings, to which all persons in interest must be made parties and have notice. To review the judgment of dismissal the plaintiff brings the case here on appeal.
The question of abandonment is one which, on objection, may not be determined in these proceedings. The impropriety of irrigation officers, seeking to have a matter, in which they have no personal or private right, determined, in an action in which they, in an official capacity only, are defendants, is manifest. That question must be litigated in a suit between parties whose rights are directly involved. This suit is by the owner of a water right against officials, charged with the duty of the distribution of water, under decreed rights, between the several users thereof, within their jurisdiction, to compel action accordingly. It is neither their duty nor privilege to question the decrees, where regular in
The questions are: Were the decrees rendered as claimed by plaintiff, and are they yet in force? Has it succeeded to the rights thereunder, and is it entitled to have th'e water turned out to satisfy 'them?Upon the record, as now presented, all these questions must be answered affirmatively. The mandatory writ should have been allowed.
There is not the slightest ground for the contention, or assumption, that it was sought to change the point of diversion of these decréed rights. The point of diversion from the river is the union head-gate. It was there the plaintiff demanded to have the water to satisfy'these decrees turned out, and the duty of the water commissioner was plain. If plaintiff, when the water is turned out to it, makes an improper use thereof, applying it unlawfully to other lapd, or otherwise wrongfully uses it, in a way to injure the vested, rights of others interested in the same source of supply, then such wrong is subject to correction in a suit by the one.damnified. It is clear,
We determine, therefore, the single question that, under the pleadings and evidence, it was the duty of the water commissioner to turn out the water to satisfy these decrees, at the union headgate, agree'able to plaintiff’s demand, leaving all questions of dispute, if any there be, between the several users of water from the common channel, as to the amount, manner and. place of use of this particular water, as to plaintiff’s right to use it at all, or any portion of it, and kindred questions, for adjustment in a proper proceeding, between the interested parties.
The judgment is reversed, with directions to the court below to issue the mandatory writ. Reversed.
Chief Justice Steele and Mr. Justice Gabbert concur.