38 Colo. 104 | Colo. | 1906
delivered the opinion of the court:
This is a special proceeding under the act of 1903 (Session Laws 1903, 258), having for its object a change, to a place higher up the natural stream, of the point of diversion of the petitioner’s right to the úse of water from San Luis creek, in water district No. 25. The substantive part of this act recognizes, and gives legislative sanction to, the right which theretofoie existed of changing the point of diversion, if the rights of other appropriators are not injuriously affected. The exclusive method, or remedy, for enforcing the right, is therein prescribed. If it appears, upon hearing of the application, that no injury has been done, the change may be made; otherwise not.
At the hearing, and on evidence somewhat conflicting, the court found that nobody would be injuriously affected by the change, and, upon such finding, entered a decree permitting the same to be made. Of the parties supposed to be affected, all of whom are junior appropriates, only appellant has appealed. He insists that the great preponderance of the evidence shows that he will be injuriously affected if the decree stands. Of the protestants, those who own lands lying between the old and the new point of diversion claimed, at the hearing, that their land adjacent to the stream is sub-irrigated, as they express it, if the water of the stream is allowed to flow unobstructed, whereas, if petitioner changes his point of diversion several miles up the stream, as he proposes, the quantity of water to which he is entitled, which, theretofore, was permitted to flow down through the protestants ’ lands to the headgate of petitioner ’s original ditch, would be withdrawn from the bed of the stream, and to that extent sub-irriga,tion would be interfered with.
The facts tended to show, and the court so found, that, in order to get into plaintiff’s original headgate the four cubic feet of water to which the ditch is entitled, there is required a flow in the bed of the stream of about fourteen cubic feet of water; that if the proposed change of point of diversion is made, only four feet of water would be turned into 'the ditch, and eleven feet would be permitted to flow
The finding of the court would seem to be conclusive, and reference is made to it here, not because these intervening owners are complaining, but to bring out clearly the fact that the appellant cannot be heard to object, as he does in his brief, that owners of lands between the old and new point of diversion have been injuriously affected, for his lands are below the original intake. The court further found, and the evidence tended to sustain the finding, that appellant was not injuriously affected. In his protest, the claim of injury is, that, if the proposed change is made, in times of scarcity of water, his lands would be deprived of the seepage which theretofore they had enjoyed when petitioner withdrew from the stream the water to which he was entitled at his original headgate. Just what title appellant has to such seepage, or how, or to what extent, it would be diminished, if at all, by petitioner’s withdrawal of the water at a point farther up the stream, is not made to appear. At least there was evidence before the court, upon which its finding was made', that in no respect would appellant’s rights' be infringed. Indeed, it would seem, from the evidence as brought up in the record, that the trial court was right in saying that the protestants were “fighting against their own interests to ask that petitioner be not allowed to make this change.”
The judgment is affirmed. • Affirmed.
Chief Justice Gabbert and Mr. Justice Steele concur.
