45 Colo. 387 | Colo. | 1909
Plaintiffs, who are owners of two' adjoining, five-acre tracts of land situate in the city of Denver,designated in the record as lots 5 and 6, and who also claim to be owners, through their grantors, of an independent appropriation of the right to the use of water for irrigating these tracts, and to utilize the same through a ditch- belonging to the defendant city, brought this action against defendants, the city council of Denver and its board of park commissioners, who have immediate supervision and control of the City ditch, to restrain defendants from doing certain acts which it is alleged they are about to do, or by a mandatory writ compel them to make such changes in their plans already carried out, which, unless the appropriate relief is given, will result in depriving plaintiffs of their alleged water right. The defendants, answering, deny that plaintiffs are appropriators of any water through the City ditch, and allege that defendants ’ threatened, or completed, acts in relation to the City ditch, which plaintiffs charge are wrongful, are only such acts as they, owners and controllers of the same, have a perfect legal right to perform. Upon the final hearing the
Neither the complaint nor the evidence is definite, or precise, as to the alleged rights of plaintiffs. Assuming, however, as do the attorneys for the city, that the complaint alleges an appropriation of water, and that, as against a general demurrer, it is sufficient, we are entirely clear that the evidence does not sustain its allegations. The complaint alleges that plaintiffs’ grantors, about the year 1867, diverted water from the South Platte river, and by means of what is now the City ditch carried the same to, and used it upon, the premises in controversy, and ever since that time plaintiffs and their grantors have continued so to use water upon the lands for raising agricultural crops. The evidence by which plaintiffs sought to establish their case does not have the probative effect claimed for it; indeed it falls far short of it. There'is not a particle of evidence that plaintiffs’ grantors ever made, or acquired, an appropriation of water from the South Platte river, by any means. Perhaps it inferentially' appears, or is virtually admitted, that, by means of the ditch in question, an appropriation of water was made by the grantor of the city which right, at least after its acquisition by the city, has been applied by the municipal authorities in irrigating lawns, gardens, trees and parks of the city, and of its inhabitants, under appropriate municipal regulations, not shown by the evidence. The main City ditch crossed the corner of one of these lots of plaintiffs. It inay be that from water carried therein plaintiffs’ grantors, through some arrangement with its then owner, irrigated their lands; but as to what that arrangement, if any, was, the record is silent. Some light, however, is thrown upon the custom, or regulation, of
It should he observed, first, that there is no evidence that this offer was accepted hy plaintiffs, or that the city authorities entered upon their lands and made the necessary’ structures in pursuance of any such arrangement. On the contrary, one of the plaintiffs testifies that she told the mayor that she
The city attorneys say that under its charter and ordinances, existing at the time, it was beyond the power of the mayor, or committee of the council, thus to make any such contract, if in fact they assumed to do so; that such contracts are positively forbidden, both by its charter and ordinances, and that plaintiffs are presumed to know the law, and that they could not, by any such contract as they claim, acquire the rights which they here assert. That point, however, we are not obliged to decide. If it be assumed that the mayor, and committee of the council, had such power and that it was, in fact, exercised, no such right is asserted or claimed in the complaint., That pleading alleges that plaintiffs are independent appropriators of water and have the right to utilize it through the City ditch. The evidence, if it amounts to anything at all, goes only to the point that the right which plaintiffs allege is about to be infringed was acquired as the result of a contract with the city. Not only is the complaint silent as to any right of plaintiffs to this water by
Again, if plaintiffs, by contract, are entitled to the use of water from the City ditch, the decree is radically wrong. The rights, of an independent appropriate of water, and of one whose only right to have water carried and delivered to him is the result of contract, are not the same, but in many respects essentially different. Yet the court in its decree, which is based on the complaint alleging ownership of' an independent appropriation, which was not proved, gave to plaintiffs all the rights that such ownership confers, in the face of the evidence of plaintiffs themselves that they claimed under a contract. The evidence is uncontradicted that defendant city, in the exercise of its undoubted legal right, has changed, or was about to change, the line, or course, of its ditch in order to make a more economical use of - the water; that the new line does not touch any portion of plaintiffs ’ lands, and that as a necessary result their water box, through which they had previously withdrawn water from the main ditch, was rendered useless, as, after the change of the course of the ditch it was no longer connected with the source of supply. The court decreed that plaintiffs are the owners, by reason of an appropriation, of ten statutory inches of water out of the City ditch, and are entitled to have the same delivered by defendants through that ditch at the point in lot 5 where the same has heretofore been accustomed to be delivered at plaintiffs ’ water box situated thereon,
Whether the appropriation through the City ditch was originally made for the city’s benefit, does not appear and possibly it is not important in this case; but it would seem from the record that, at least after the city acquired the ditch and its accompanying water rights, it has so used them as a source of
Reversed and remanded.