Burnham v. Freeman
11 Colo. 601
Colo.
1888
Check Treatment
De France, C.

The plaintiff in her complaint alleges an ownership in herself of an undivided one-third interest in the irrigating ditch in question. The decree of the court does not designate specifically what interest the plaintiff owns in said ditch, but the inference therefrom is that she is the owner of a one-third interest. She is .awarded by the decree a proportionate share of the water of said ditch for the irrigation of her land and crops. In this respect the decree is erroneous, as it ignores the principle of priority of appropriation. Water was used upon Burnham’s land, and likewise that of the Emersons, in 1872, and thereafter, while it was not applied to the land now owned by the plaintiff until the year 1878. But the foundation of this action is an ownership by plaintiff of some interest in the ditch. She claims no contract right to the use of water therefrom, but her claim is based solely upon the ground of an ownership therein. In order, therefore, for her to recover, it was incumbent upon her to establish the fact that she owned an interest in the said ditch. Upon this point the evidence is not sufficient. She acquired no interest from Baker. His interest in the ditch did not pass to the United States government upon-the abandonment by him of his claim to the land now owned by the plaintiff, and she therefore acquired no interest in the ditch by *606her conveyance from said government. Neither the plaintiff nor her husband purchased the improvements made by Baker upon said land, or any interest of Baker in the said ditch. The repairs or improvements made upon the ditch by the plaintiff and by her husband did not invest the plaintiff or her husband with an ownership in the ditch, and no verbal declarations of the Emersons could do so; nor did the use of water from such ditch, with the consent of the defendants, to water the land owned by plaintiff, operate to convey an interest in the ditch to the plaintiff or her husband. All these things combined could have no such effect, yet these are all the facts shown by the evidence to establish such right or interest. The ditch was constructed and in operation, and in the lawful possession of the defendants, before the plaintiff or her husband settled upon the said land. It was a private ditch, belonging to individuals, and not to an incorporated company. The law recognizes but two ways of acquiring, by purchase, an ownership interest in such a ditch. One is by deed or prescription, which presupposes a grant, and the other is by condemnation. An interest in such a ditch is an interest in realty. It cannot pass by a mere verbal sale. Smith v. O’Hara, 43 Cal. 371. The evidence being in-. sufficient to show an ownership in the plaintiff in such ditcli, the judgment and decree must be reversed.

Rising, 0., concurs. Stallcup, 0., dissents.

Per Curiam.

For the reasons stated in the foregoing opinion the judgment of the court below is reversed. Plaintiff was entitled to appropriate sufficient of the unappropriated water remaining in the natural stream to irrigate her land. The water which Baker originally intended to, but did not, divert, she might take, provided it yet remained unappropriated. If it were necessary, to take the water across defendant Burnham’s land, and if *607she failed by contract to purchase an interest in the ditch over this land, she could proceed under the statute to condemn the right of way for a new ditch, or to condemn the right to use the ditch already constructed. But, in any event, the priorities of the appropriations belonging to Burnham and the Emersons would be superior to that of plaintiff, made eight or ten years afterwards.

Reversed.