24 Colo. 541 | Colo. | 1898
Lead Opinion
delivered the opinion of the court.
This action was originally brought by appellants in the district court of El Paso county to restrain appellees from diverting, through and by means of a certain pipe line, the water flowing in Cheyenne creek, a natural stream situate in El Paso county. The material facts, as they appear from the pleadings and evidence, are in brief as follows :
The appellants, through various conveyances, are the present owners of the Cheyenne ditch, constructed in 1860 (and alleged to have been enlarged in 1862) for the purpose of diverting and appropriating the waters of said creek to the irrigation of certain lands lying thereunder. In a proceeding in the district court of El Paso county, for the adjudication of priorities to the use of water in water district No. 10,
For these reasons, and also because of the indefiniteness and uncertainty of the decree itself, the court was asked to declare the same null and of no effect, and to readjudicate the priorities as between the respective ditches.
Other errors are assigned and elaborately argued, but in the view we take of the controversy, it becomes necessary to consider only those that challenge the rulings of the court below upon matters touching the validity of the decree of February 15, 1882, since the rights of the respective parties depend upon the solution of this question. We will consider these objections in their inverse order. Did the court err in holding that the publication of a certified copy of section 1 of the act of 1881, as provided in section 2, was not a necessary condition precedent to the vesting of jurisdiction in the district court of El Paso county to entertain the proceeding instituted for the adjudication of the priority of water rights in district No. 10; that this provision is directory merely, and the failure of the secretary of state to comply with it did not affect the jurisdiction of the district court over the subject-matter ?
Upon the question of the right of appellees to divert the water for domestic use, based on the fact that their grantors, as riparian owners, had enjoyed such use since their first settlement upon the stream, the court below held that such claim could not be sustained; and that the right to use the water for such purpose must be exercised in connection with
“ While it is true that section 6 of article 16 of the constitution recognizes a preference in those using water for domestic purposes over those using it for any other purpose, it is not intended thereby to authorize a diversion of water for domestic use from the public streams of the state, by means of large canals. * * * The use protected by the constitution is such use as the riparian owner has at common law to take water for himself, his family or his stock, and the like.”
The court, therefore, correctly decided that the water could not be used for such purpose by the company, through its pipe line. A question of more serious import, and one of no little difficulty, is presented by the ruling of the court below upon the validity of the decree itself. That the decree is somewhat defective cannot be denied, and it might have been open to the objections now made if it had been attacked in the time and manner provided in the act. It states the size and capacity of the ditch in width, depth and length, the date of construction and enlargement, and decrees to it the first and third priorities for sufficient water to irrigate four hundred acres of land. The court below held it void for uncertainty, because it failed to state the grade of the ditch, its carrying capacity in cubic feet per second of time, or that the waters decreed were appropriated by application to a beneficial use.
It is unquestioned that to constitute a valid appropriation within th.e meaning of the constitution and the statute, the water diverted must be applied, within a reasonable time, to a beneficial use; and that the referee must ascertain from the evidence the existence of such fact before he can award any priority to a ditch. But we find no provision of the statute requiring that the decree shall state upon its face that the water appropriated was applied to a beneficial use.
This decree, while it fails to state the amount of water appropriated by cubic feet per second of time, or the grade of the ditch, does describe the ditch by width, depth and length, and by specifying the number of acres to be irrigated, furnishes “ such other description ” as shows the amount of water intended as the capacity of the ditch; and also the beneficial purpose to which the water was applied. Under the liberal rule of construction enjoined by the statute itself, section 1786, Gen. Stats., we think this decree should be upheld, and that sufficient appears upon its face to render it susceptible of enforcement. The amount of water required to irrigate a given number of acres of land can easily be ascertained; and, as a matter of fact, as appears from this record, the decree has been enforced for a number of years, and the parties have acquiesced in the distribution of water thereunder, not only during the time provided for a reargument or review, and during the period of time in which an appeal might have been taken, but until this suit was instituted, without questioning its sufficiency in this regard.
As before said, water district JSTo. 10 is coextensive with El Paso county, and this decree affects most, if not all, of
In the case of Dorr v. Hammond, which was a controversy as to certain priorities awarded by this decree, speaking of the adjudication before the referee, the court say:
“ The proceedings below appear to have been conducted in strict conformity with the statute, and if any errors have been committed by the referee they grow out of his judgment upon the weight of the testimony.”
The Striolcler case was decided upon an agreed statement of facts, recognizing the validity of this decree, and predicating the rights of the respective parties upon priorities decreed thereby; and upon this assumption a valuable right was adjudicated and determined. In addition to the foregoing considerations, we think the conduct of defendant’s grantors in standing by while third parties expended money in the acquisition of valuable rights, upon the strength of this decree, equitably estops defendant company from now assailing its validity.
Our conclusion is that the decree should have been upheld, and the court below erred in setting it aside. Its judgment, therefore, is reversed, and the cause remanded, with directions to grant the relief prayed for in the complaint.
Heversed.
Chief Justice Campbell not sitting.
Rehearing
ON REHEARING.
delivered the opinion of the court.
Upon rehearing counsel have favored us with elaborate and able arguments, both oral and written, upon some of the questions considered in our former opinion, and also in
Upon careful consideration of the reasons urged against the correctness of the conclusions announced in our former opinion, we see no reason for changing or modifying our views as therein expressed; and we think that the record discloses two sufficient answers to the proposition now for the first time advanced, that, since the entry of the decree, appellants and their grantors have abandoned a portion of the water given to the Cheyenne ditch priority: first, because no such issue is presented by the pleadings; an examination of the answers of appellees fails to disclose any allegation that appellant or its grantors had failed to use the water decreed to Cheyenne ditch, or had in any way abandoned any right to any portion thereof; and second, because, from an examination of the testimony of the appellees themselves, it appears that appellant and its grantors have, since the year 1883, used all the water of Cheyenne creek, whenever necessary, to the detriment of appellees, and to the extent certainly of depriving them of water that they claimed to own. It is clear, therefore, that appellees are not in a position to urge the claim of abandonment.
But appellees strenuously insist that, if they are wrong upon this and every other proposition, they still have the right to conduct the amount of water through their pipe line which was theretofore used by them for domestic purposes ; and that the former opinion of the court upon this question should be modified, and the cause remanded for the purpose of ascertaining how much water is necessary to supply this use; and that they be decreed the right to divert such amount through their pipe line.
There is nothing in our former opinion that precludes such parties from enforcing, by appropriate proceedings, their right to such use, if they are entitled to it, and prohibiting any interference therewith by appellants or others. All we do decide is that the water could not be used for such purpose by the company, through its pipe line. The right to still use water for domestic purposes from the creek itself is not in issue, and consequently is in no way determined by the decision of this case.
For the foregoing reason the former opinion is adhered to.
Rehearing denied.
Chief Justice Campbell not sitting.