27 Colo. 155 | Colo. | 1900
delivered the opinion of the court.
Plaintiff in error filed a petition in the court below for a reargument and review of the decree theretofore entered in the matter of the adjudication of water rights in district No. 12. Subsequently an amendment to this petition was tendered and filed. To these pleadings those who appear to have been made parties defendant interposed a general demurrer, which was sustained; and plaintiff in error having declined to further plead, the proceedings were dismissed.
The only question necessary to determine, is the sufficiency of the petition and amendment. These were evidently intended to be filed under the provisions of sec. 2425, Mills’ Ann. Stats., which in terms provides that the court in which an adjudication of water rights is had under the statutes, may, upon good cause shown, order a reargument or review of such decree, with or without additional evidence. The only averments in the petition which can be denominated a “ statement. ” upon which plaintiff in error bases a right to the relief demanded, are to the effect that petitioner owns the Davis ditch, and the appropriations of water thereby utilized from Hardscrabble creek; that by the decree this ditch wás awarded, under priority No. 172, one-half cubic foot per second, and under No. 189, two and cubic feet; that priority No. 172 should have been numbered about twelve, as of date June 1, 1861, and in volume one cubic foot per second; and that No. 189 should have dated from May 1,1876, been numbered accordingly, and allowed three cubic feet. That the findings of the referee with respect to an abandonment of the ditch, and irregularities in transfers and conveyances by its owners, were erroneous and that he overlooked and did not consider, or report upon, usages and customs of
The purport of the averments of the amendment is that the lands described in the petition are the same originally embraced in what is known as the Hardscrabble Ranch; that the Davis ditch is the one by means of which that ranch was irrigated from the waters of Hardscrabble creek, and an appropriation thereof made for that purpose, to the extent of five cubic feet per second, dating from May, 1861, which ranch, ditch and rights petitioner has succeeded to and now owns; that the court had no jurisdiction to adjudicate the waters of the stream above the north line of this ranch, except that part in excess of five cubic feet, because this volume had been appropriated by remote grantors of the petitioner prior to the date of the adoption of the constitution of the state, and was then reserved and set apart to the use of such ranch, as a vested water right. In support of the sufficiency of this amendment, it is argued that by virtue of the provisions of the territorial statutes of 1861, and amendment in 1866, a legislative' grant had been made for the use of the lands de
An examination of the amendment to the petition wholly fails to indicate that petitioner relied upon these acts for the purpose of establishing any rights in and to the waters of Hardscrabble creek. It is only from the argument made, that this information is derived. It cannot be assumed that because in the amendment to the petition the lands described therein constitute the Hardscrabble Ranch, that they are the same as those mentioned in the amendment of 1866 by that name. If it was the intention of the petitioner to rely upon the laws to which reference is above made, to support the legal conclusions pleaded, it was certainly necessary to state facts from which it could be ascertained that the lands in question were the same as those mentioned in these laws, and that by virtue thereof, and the beneficial use of water thereunder, the legislative grant sought to be asserted had inured to the benefit of petitioner.
Neither the petition, nor the amendment, nor both to
Affirmed.