46 Colo. 599 | Colo. | 1909
delivered the opinion of the court:
The object of the action was to prevent defendant from diverting and using on his agricultural iands the waters of a natural stream, to the injury, as is said, of plaintiff’s vested rights thereto. The par
Plaintiff did not succeed, at least to the satisfaction of the trial court, in proving that defendant used this appropriation first upon the land on the north, and afterwards, and during the same season, upon an additional and equal acreage -on the south, side. Neither did he show that at any time defendant diverted from the common source of supply any greater quantity than that covered by his decree. In other words, there is no showing that defendant exceeded, either in volume or in time, his decreed appropriation. There is testimony that during these • later years, and after defendant ceased to use his decreed appropriation in irrigating lands on the north side of the stream, plaintiff has not been able, at all times, to obtain the full volume of his decreed priority; but
Notwithstanding the insistence of plaintiff in his argument, we have not before us a case where defendant is attempting to use a greater volume of water, or tQ use a rightful volume for a longer time than he is entitled to, or where he is wasting water or using it when he has no need of it. Neither is there any merit in plaintiff’s' claim that defendant has, without complying with our statute, changed the point of diversion of his ditch. In irrigating his land on the south side of the stream defendant takes the water from the stream through the original headgate of his ditch, the same as when he irrigated the lands on the north side. The building of a flume across the stream, and connecting it with the main ditch at a point below its headgate', amount to nothing more than building a lateral ditch from the main ditch for convenience in irrigating different parts of the tract of land for which the appropriation was made.
In reaching our conclusion, we are not to be understood, of course, as passing upon any conflicting rights which are not here involved. And if, hereafter, defendant should make such change in the place of tlie use of the water, or enlarge his appropriation, either in volume or time, nothing determined in this case would preclude plaintiff from obtaining the appropriate relief, if he should be entitled to any.
The record abundantly justifies the findings of fact which the trial court made in defendant’s favor.