50 Colo. 176 | Colo. | 1911
delivered the opinion of the court:
This controversy relates to priorities to the nse of water for irrigation purposes in Water District No. 40, as determined by a general decree of June 17, 1889, and subsequent decrees, all entered by the district court of Delta County. The particular appropriations involved are from Smith’s Fork or its tributaries, the former a tributary of the Gunnison River.
The appellant and the appellees, except the owners of the McLeod Ditch and the Scrub Oak Ditch No. 2, participated.in the adjudication of 1889, offered evidence and obtained decrees. These decrees are similar in form. The ditches are each given a priority number, and an amount of water equal to the carrying capacity of the ditch, followed, however, except in one. instance, by a proviso limiting the amount of water permitted to flow into' a ditch, to a designated number of cubic feet per second of time, “until such time as said parties shall have increased their cultivated meadow and pasture land thereunder to more than (naming the exact acreage then in cultivation), and then the increase in the amount of water so permitted to flow into' said ditch shall only be in the ratio and proportion of one cubic foot per second of time, for each 40 acres of such additional lands. And, provided further, that said increase of such additional lands, and. the user thereon of such proportionate additional amount of water, appropriated therefor, shall be made with due diligence. ’ ’
These ditches were nearly all constructed by pioneers who settled along Smith’s Fork in 1881, and shortly thereafter. At that time the land was all a part of the public domain. The stockholders of the Crawford Clipper Ditch, which was among
July 16, 1900, the Crawford Clipper Ditch Company and the Needle Bock Ditch Company filed in the court their joint petition and separate state
The principal contentions of appellant are: That the decree of 1889 vested in it, absolutely, -83.52 cubic feet of water per second of time, with Priority
We are of the opinion that the decree of 1889 has both absolute and interlocutory features. Absolute as to that portion decreeing that there shall be permitted to flow into the respective ditches the amount of water that had at that date been applied to a beneficial use; interlocutory as to the remainder of the carrying capacity of such ditches. At the time of the entry of the decree, the court established in each ditch an absolute right to the full amount of water per second of time that had been applied to a beneficial use, and gave such appropriation a number, and, to- that extent, it was absolute. It tentatively recognized an inchoate right to additional water, which inchoate right, if of any validity, might become an absolute right, under the doctrine of relation, if the water was applied to a beneficial use with due diligence. As the absolute 'right established could lawfully be based only upon the application of the water to a beneficial use, the right decreed must be measured thereby. This was the extent of the court’s authority in the premises, and the decree being susceptible of that construction, such must be the meaning ascribed to it. Bearing in mind the facts existing at the time, the -necessity of an application of water to a beneficial ase to-constitute, a valid appropriation, the Tack of authority, in the
The question of abandonment of a water right is not involved. We have held that to abandon such right presupposes possession thereof prior, and to the time of abandonment; that there can be no abandonment of that which never existed. “Hence it would be a mistake for us to apply the principles regulating abandonment to the loss ’ ’ of these contingent interests. As said in Conley v. Dyer, 43 Colo. 22, “The language employed was equivalent to an express declaration that in the absence of such dilig'ence no appropriation would exist and the inchoate interest, tentatively recognized, would terminate.” To the same effect is Drach v. Isola, supra.
When the court conditioned the right to additional water upon the application thereof to beneficial uses, with due diligence, it held such right in suspension. “By that decree, therefore, the existence or non-existence of a vested or completed interest in this water was left open for future ascertainment and decision in some appropriate action or proceeding. ’ ’
But appellant, under this view, maintains, that it has complied with, and fully performed the conditions imposed by the decree; that the evidence shows that in 1889, and each year thereafter, it increased, with due diligence, its acreage irrigated, and it, therefore, contends, that the additional “appropriations
It is argued that the referee reported, as the result of some of the hearings, that additional lands of stockholders of the appellant, had been brought under irrigation “with due diligence,” and that such findings were approved by the court. It is true such meaning could be gathered from portions of the referee’s reports and the decree. However, other portions thereof, together with the overwhelming weight of evidence, clearly establish, that none of such additional lands were brought under irrigation, by water taken from the stream, to the exclusion of the rights of the appellees, under the absolute portion of the priorities established by the 1889 decree. On the contrary, the superiority of all the absolute priorities under that decree was recognized and adhered to, and no water was distributed under the conditional portions, until the absolute priorities thereunder had been supplied, except during the existence of the 1903 decree. We do not think the words found in the reports of the referee, upon which the 1903 decree was based, or the language of the court in vacating that decree and entering the one of 1905 — which is the one here under consideration — can be properly held, under the circumstances of this case, as a finding that the additional lands of appellant were brought under irrigation with due diligence, so as to make the appropriations therefor, under the doctrine of relation, a part of appropriation No. 3 of the 1889 decree. What shall constitute “due diligence” in any case, depends upon many circumstances. The additional land was not brought under irrigation by water distributed to the Crawford Clipper ditch, under the conditional decree. It was only “during times of high water the full carrying capacity of the ditch was run,” and such additional lands brought under irrigation. The use of water from the stream,
By virtue of such use on their part, and non-use by appellant, during all these years, appellees acquired a vested right as against appellant to the waters so used. What would have been the rights of the parties, had the appellant, within a reasonable time, with or without the consent of appellees, applied the water to the irrigation of its lands, to the exclusion of the rights of appellees under the absolute portions of the 1889 decree, instead of in recognition thereof, or had diligently pressed the court, within
The case is unlike Waterman v. Hughes, 33 Colo. 270, relied'upon by appellant. That case is-clearly distinguishable from this. It is therein stated, that for many years water had been distributed'in accordance with the provisions of the conditional decree; that no objections were made thereto, and if objections had been seasonably made, it was doubtful if the water commissioner could have lawfully allotted any water thereunder until such time as the -court awarded to the conditional decree some fixed quantity. In the case at bar water was never distributed under the conditional part of the decree, and no diligence was manifested in seeking to establish rights thereunder by adjudication, but rather an acquiescence manifested, as will presently appear, in an adverse judgment entered relative thereto. In 1890, the owners of the Virginia Ditch filed in the-district court a petition for further adjudication of the water rights of Smith’s Fork. In that proceeding the appellant and the Needle Rock Ditch Company appeared, and filed statements, claiming that they 'had increased the acreage irrigated from their respective ditches, and asked that their conditional decrees be made absolute. • A referee was appointed, testimony taken, and the referee’s report recommending a decree, presented. Exceptions were filed to the-report, which came on for hearing February 21, 1894. The order thereon entered by the court, after reciting the formal matters of appearance, etc., reads: ‘ ‘And being -fully advised in the premises, doth find and -Order: That the report of the referee be not confirmed, and that the findings and decree returned-by'the referee be, and the samé are hereby, set aside and held for naught; and it is further ordered that' the
Appellees, or some .of them, contend that the above order and judgment was an adjudication of the same matters here involved, and not having been appealed from or set aside in any way, became final, and is a bar to the claim made in this cause by appellant. The appellant, on the contrary, contends, that the judgment in question was nothing* more than a refusal to consider the application for additional appropriations, at that time, and constitutes only a judgment of nonsuit or dismissal. While it appears that the questions presented in that proceeding, the relief sought, and the parties thereto, were the same as in the case at bar, it seems the order of dismissal was entered, because the court was of the opinion that it had no- jurisdiction to determine the. matter, as to the intervening ditches, because they had not been named in the petition of the Virginia Ditch owners, as ditches against which priorities were claimed. Under these circumstances, we shall not determine whether that judgment or decree is a bar to this proceeding. However, we think it of value as indicative of the way in which the 1889 decree was construed, understood, and accepted by the users of water. Moreover, the action of appellant, after these proceedings, indicates that it was satisfied with conditions as they then existed. It made no further effort to change conditions, until the filing* of the petition upon which the decree of 1903 was based- — • more than eleven years after the entry of the- 1889 decree. In the meantime other water users, under the absolute priorities of that decree, rested secure in their rights, expended money in improving their holdings, with full knowledge upon the part of appellant. Bearing in mind that the decree held the right to additional water in suspension, that it only
Other questions presented, we do not deem necessary to consider. Upon the whole record, and the merits of the controversy, it appears that the decree is just and proper, and it is, therefore, affirmed.
Affirmed.
Mr. Justice Musser and Mr. Justice Bailey concur.