257 P. 361 | Colo. | 1927
THIS is a controversy over the ownership of water rights. The complaint of plaintiff McFadzean, containing three causes of action, has for its object the quieting of plaintiff's title thereto. The first cause alleges that plaintiff is the owner in fee and in possession of two certain statutory decreed water priorities in water district No. 27, Nos. 4 and 5, each for 40 inches of water, which were decreed to William P. Curby by the district court of Saguache county in March, 1882, each priority bearing date of February, 1880. The second cause of action pleads our seven year statute of limitation, plaintiff alleging that for more than seven successive years prior to the commencement of the action he, himself, was in actual possession and continued in such possession of these water rights, and while so in actual possession thereof, paid all taxes legally assessed upon them. The third cause of action pleads the twenty year statute of limitation. The answer denies each and all of the causes of action and sets up ownership by the defendant of the water rights in question by reason of mesne conveyance from William P. Curby to whom the water rights were decreed. Trial was to the court without a jury and the *140 findings generally were for the plaintiff and a decree passed quieting title in him.
Upon a careful examination of the record we are forced to the conclusion that there is no legitimate evidence to sustain this decree. It will elucidate, as well as shorten, the discussion by first summarizing the evidence. The undisputed facts are that Curby made some sort of filing on government land. While occupying the same Curby made an appropriation from La Garita creek of water for irrigating the same and in a statutory proceeding then pending in the district court of Saguache county obtained in March, 1882, two separate decrees for two separate ditches numbered 4 and 5 for 40 cubic inches each, the priorities dating February, 1880. Presumably this water was used by Curby for that purpose. Curby's entry and filing did not ripen into a patent. He gave it up and quit possession of the land. Thereafter there were several other entrymen, who did not perfect their rights, and finally William Mattern filed upon the land and his entry culminated in a patent about the year 1900. In 1904 Mattern conveyed the land to McFadzean, the plaintiff, together with "all water rights, water and ditches in any way appertaining." About 1910 or 1911 McFadzean entered into a contract with one Gallegos for the sale of this tract. Gallegos entered into possession of the land under the contract and farmed it. When he attempted to irrigate the land through the ditches with the number 4 and 5 priorities he was not permitted by Mr. Coolbroth, the water commissioner, to divert the same. On the cross-examination of Gallegos it was brought out that when the water commissioner refused to allow him to divert water of these two priorities he concluded that he had no rights therein and proceeded to, and did, file upon and received a decree for, two separate priorities of a later date to the two ditches on this land as of date July, 1884. It was the water thus awarded to him for these ditches that he was allowed to and did use in irrigating the land while he was in *141 possession. Gallegos further testified that he had no contract with McFadzean for water or water rights and the latter never mentioned water rights in connection with their contract. Gallegos, it seems, did not carry out his contract of sale or receive a deed for the land though he was on the place thereafter probably as an employee of subsequent grantees of McFadzean. In 1913 the plaintiff McFadzean conveyed the land and water rights to one Juan Trujillo. In 1918 Juan Trujillo conveyed to Ramos Trujillo and in 1922 Ramos conveyed back to McFadzean. During the years from 1913 to 1922 these respective grantees were in actual possession of the land continuously. There is no legal evidence that any of these parties from the time Mattern sold to McFadzean in 1904 until this action was brought, August 10, 1925, was in the actual possession, or what is the equivalent thereto, of these particular Curby water rights, or that any of them used the same or any part thereof, though use of water was made under some claim of right. Neither is there any evidence that Curby or his heirs ever sold or conveyed or attempted or intended to convey water rights Nos. 4 and 5 to any person except to the grantors of the defendant Bowers, under which claim of grant the latter asserts title, or that he abandoned them or intended to relinquish his claim thereto. We are now prepared to discuss the legal features of the case.
1. Manifestly there is a complete failure to establish the first cause of action. Curby was the decreed owner of these two priorities. Though they were to be used for irrigating the described lands, under our decisions, Curby might have conveyed the land, if he had received a patent, to one person and the water rights to another, or might have changed the points of diversion, or used the water on other lands. By the failure to get a patent and by quitting possession Curby lost all his rights to the land as against the United States and its grantees, but his abandonment of the land, or relinquishment of his right, as an entryman did not operate as a loss of his water *142 rights or as a surrender thereof, either to the United States or its patentees; nor did it vest title to the water priorities in either the United States or its patentees. Curby's title or right to the use of water of the natural streams in the state of Colorado, did not come from the United States, but from the state of Colorado which is the owner in its sovereign capacity of the waters of all of its natural streams, and it is only the right to the use of the water that it permits appropriators to acquire. The ownership of the water itself of all our natural streams still is in the state of Colorado. Plaintiff asserts title by virtue of ownership of patented land, for irrigating which, the decreed water rights were appropriated. He does not claim or, if he did, it would be futile for him to do so, under the rule in this state, that it was the intention of the United States or of plaintiff's immediate grantor Mattern to convey them. Mattern was not a grantee of Curby but of the United States. The United States, at the time of its patent to Mattern, did not own the waters of natural streams in this state, or the water rights of appropriators therefrom; hence it could not, and did not intend to, grant something which it did not own. Its patent passed only the naked land. The right to the use of the water of the natural stream which Curby got was a right separate and distinct from the right to the land that he got from the United States. The water right he acquired by decree from the state. The land he got by United States patent. If Curby intended to abandon or relinquish the decreed water rights when he quit possession of the land, as to which there is no evidence that he did, these water rights did not revert to the United States or to its patentee. If they reverted at all it was to the state of Colorado and, in case of a loss or abandonment thereof by the appropriator, became a part of the unappropriated waters of the natural stream subject thereafter to a new and distinct appropriation by a citizen who might file upon them. *143
2. Neither is the second cause of action, based on the seven year statute of limitation, established. The statute provides, among other things, that every person in the actual possession of lands, under claim and color of title, made in good faith, and who shall, for seven successive years continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner * * * to the extent and according to the purport of his or her paper title. The statute also provides that all persons holding under such possession by purchase, etc., before said seven years shall have expired, and who shall continue such possession, and continue to pay taxes so as to complete possession and payment thereof for the full term of seven years, shall be entitled to the benefit of the section. The difficulty in plaintiff's case, however, is that not only has he not any paper title to these water rights, the description in the Mattern deed not being specific or ascertainable without other evidence; neither was there any averment in the complaint nor any evidence nor any attempt by the plaintiff to tack on to his possession that of any of his grantors or grantees. There is no allegation in the complaint that some other person in the chain of plaintiff's title had been or was in possession for any part of the seven years, or that he succeeded to their rights, or that he continued such possession. On the contrary, the complaint expressly alleges that plaintiff himself for more than seven successive years was in the actual possession and he, himself, paid the taxes. In Gibson v. Huff,
MR. CHIEF JUSTICE BURKE, MR. JUSTICE ADAMS and MR. JUSTICE BUTLER concur. *146