28 Colo. 187 | Colo. | 1900
delivered the opinion of the court.
This action was commenced by appellee, as plaintiff, against appellants, as defendants, to restrain the latter from diverting water from the South Platte river by means'of a ditch known as Feeder No. 1, and its extension, and also to restrain them from intercepting water flowing from Beaver lake and adjacent swamps, through a ditch designated Beaver Lake, the stream from which sources, it was averred, was a tributary of this river. As a defense to the claim of plaintiff to the waters of the stream flowing from Beaver lake and vicinity, the appellants (1) denied that such stream was a tributary of the river; (2) averred that the waters derived from this source were obtained by draining lands adjacent to Beaver lake which were in no sense a source of supply of the river, or any of its tributaries. The result of the first trial was a judgment in favor of appellants to the waters obtained by means of the ditch designated as Beaver Lake, which was constructed from the point where it intersected Feeder No. 1 to Beaver lake and beyond. The court gave them this relief upon the ground that by their efforts and expenditures they had drained lands lying adjacent to Beaver lake, and thereby largely increased the water supply flowing from that source, but also found that the stream from the lake was a natural water course, and tributary of the river. From this judgment the plaintiff appealed to this court, where, upon consideration of this branch of the case it was held that the court erred in decreeing the present appellants all the water from this source, because they were only entitled to the water flowing from Beaver lake to the extent they had increased its average continuous flow. For this reason, the judgment was reversed and the cause remanded for further proceedings. Platte Valley Irr. Co. v. Buckers
On the second trial of the cause, the issues between the parties with reference to the water flowing from Beaver lake, as, also, its increase by virtue of the efforts of appellants, were the same as before. With respect to the rights of appellants to maintain the ditch known as Feeder No. 1, they filed a supplemental answer, in which it was averred that by reason of natural physical changes in the bed of the river, it became necessary for them to maintain that portion of the ditch for the purpose of supplying their main ditch directly from the river. It is unnecessary to state the facts upon which appellee bases its right, primarily, to maintain this action, because these matters were disposed of in the former judgment of this court.
On the second trial the court found the issues with reference to the waters collected by Beaver Lake ditch in favor of the plaintiff, and. decreed that defendants were not entitled to the use of any of the waters from this source as against the plaintiff. From this judgment the defendants appeal. There is also involved, by reason of the judgment of the lower court, the right of appellants to maintain Feeder No.l, which will be noticed later.
At the outset there is presented this question: What was the effect of the order in our former opinion, remanding the cause for further proceedings, on that branch of the case relating to the waters of the stream flowing, or alleged to flow from Beaver lake ? Our answer is, that it remanded the case for a new trial on this question,and that no finding of fact made by the lower court, or which this court said was supported by the evidence, was res adjudicada of any fact upon which the rights of the parties to the waters collected by Beaver Lake ditch depended. The issues made by the pleadings upon this branch of the case were plain and simple, The appellee averred that the stream flowing from Beaver lake was a tributary of the Platte river. The appellants
The evidence upon the question as to whether or not this stream was a tributary of the river was conflicting. If the court had adopted'the proper theory as to where the burden of proof rested upon this issue, and had found, as it did, that the water flowing from Beaver lake was a natural stream and a tributary of the river, perhaps the evidence is sufficient to sustain this finding. But. as it was conflicting on the sub
In the former opinion the judgment of the lower court rendered at the first trial, directing that Feeder No. 1 be abated, was affirmed. This judgment was sustained for the reason that this portion of the ditch of appellants drew
The judgment of the district court is reversed, and the cause remanded, with directions to enter a decree, giving appellants the relief demanded by their supplemental answer, and for a new trial on the issues made by the pleadings, with respect to the rights of the parties -to the water flowing in Beaver Lake ditch above the point where it intersects Feeder No. 1; and upon the final determination direct, if necessary, how that part of the ditch of appellants between the river and the Buckers ditch which intercepts the waters from Beaver Brook shall be maintained with respect to the flow of the water from that source.
jReversed and Remanded.