26 Colo. App. 538 | Colo. Ct. App. | 1914
delivered the opinion of the court.
For convenience, the plaintiff in error will be called defendant, and defendant in error will be called plaintiff, as in the trial court.
March 17, 1909, plaintiff purchased, and obtained a deed for section 29, township 6 north, range 63 west, Weld county, Colorado. September 22nd he filed his complaint, in the nature of ejectment, against defendant Edwards and one R. E. Dougherty, alleging ouster of the plaintiff from about 200 acres of,said land, and asked for possession, and damages in the sum of $10,000.. The act of defendant constituting the alleged ouster was the flooding, in the spring of 1909, of 119 acres of said section, by filling a reservoir known as the “Wadlin Reservoir,” situated in part on said section 29, and in part on section 30, same township and range. Defendant was the owner of section 30, and attempted to justify, by pleading and proving that he was the owner of said reservoir; that he and his grantors constructed and had been in possession of the same, and used it for the storage of water for irrigation, beginning in the year 1888, and every year thereafter; that his right to use a portion of section 29 as an easement for his reservoir was superior to plaintiff’s right to- possession as
Judgment was rendered, ousting the defendant from the possession, but granting tO' him thirty days in which to begin proceedings in eminent domain to condemn plaintiff’s land for use as a reservoir site.
There is some conflict in the evidence. But certain matters are either admitted or not disputed by the evidence. Crow creek is a natural water way which in most years carries a great volume of water at flood seasons, but becomes practically dry in the latter part of every season, and in occasional years supplies very little water, if any, fqr storage. About the year 1888, John Wadlin began the construction of a ditch to convey water from Crow creek to his lands, including that in section 30, and at the same time located a reservoir site on the ’course of said ditch, and filed his sworn statement and map of the ditch and reservoir in accordance with the statute then in force. The reservoir as contemplated occupied a part of sections 29 and 30. As shown by the record, the dam of said reservoir was situated entirely upon section 30, the ends reaching to a short distance west of the west line of section 29, the grade falling westerly toward section 30. In 1892 said dam was completed and the reservoir filled SO’ as to flood that portion of section 30 east of the dam, and a considerable portion of section 29, about 140 acres of which were claimed fqr reservoir, and the water sostored was used by Wadlin for irrigation purposes. It is admitted that in 1892, about xoo acres of section 29 were flooded; that in 1895, 1899 and 1904, more than 100 acres thereof were submerged, and that in the years 1894, ’6, ’7 and ’8, 1901 and ’3, thirty or forty acres of said section were submerged; but it is contended that in the years 1893, 1900, ’2, ’5, ’6, ’7 and ’8, this land was not flooded at all. As to this latter contention there is some conflict. One witness testified that he ran water into’ the reservoir nine years out of eleven. The water so stored did not remain in the reservoir for many weeks during any season, as it was drawn out and used for irrigation, after which the
Plaintiff deraigned title from the government by patent issued to the Union Pacific Railway Company, bearing date November 12, 1897, and by numerous mesne conveyances. Of plaintiff’s grantors, F. C. Grable took title October- 14, 1905. Grable conveyed to- Ernest O. Ellsworth, September 29, 1906, and Ellsworth to plaintiff, March 17, 1909. The last two- deeds of conveyance -contained the following exception : “Subject to all existing ditch and reservoir rights.” Grable had known of the existence of this reservoir for from fifteen to- eighteen years. When plaintiff passed over the land in February, 1909, prior to purchase, and when at a place on said land from whence the dam could have been seen if he had- looked, he- was informed by the person showing him the land, that an old reservoir site was situate thereon, and soon
It is conténded by counsel for plaintiff in error that the precise question for determination has been settled by the Supreme Court of this state in Tynon v. Despain, 22 Colo. 240, 43 Pac. 1039. The effect of that decision, taken together with Highline Canal Company v. Moon, 22 Colo. 560, 45 Pac. 437, is that the act of congress of July 26, 1866, section 9 (14 Stat. at Large, page 253) and its amendment (section 17, act approved July 9, 1870, 16 Stat. at Large, page 218), whether considered as a grant or as a legislative recognition of a pre-existing right, operates as a reservation from the general railroad grants, in' favor of irrigation, ditches and reser
“To- the building of the ditch across all of these lands, except the railroad tract, the occupying claimants gave their consent in consideration of the benefits which they considered*545 the ditch for agricultural purposes would be to their holdings. No express consent was given 'for building across the railroad-tract, for it was then unoccupied, * * * and no permission at all as to- the railroad tract.”
The evidence in that case showed that the ditch was built in the year 1874, five'years after, the congressional grant became effective by the filing and approval of the map of definite location. The lists of selections of certain tracts under the acts aforesaid, filed by the land agent of the railway com-, pany, were made in 1878 and ’g, and thereafter patent issued to' the railway company and title passed to- the defendants against whom the right of way was asserted. In respect to the railroad tract, the facts of that case are precisely parallel to those in the case at bar in. every material matter up to the time that the title passed from the United States by its patent to the railway company, so- that the rights acquired in the inception of the easéments in the respective cases, up to the time of the issuance of.patent, are governed by the same rule.. The court, in an opinion delivered by Mr. Justice Campbell, said (22 Colo. 249; 43 Pac. 1042) :
“It is clear, therefore, that the railway company took its lands subject to. the burden of this easement. It is equally apparent that ..the act of 1866 operated as a -grant to- the owners of this ditch of a right of way across the lands of an occupying claimant, under the United States land laws, when the inception of the latter’s rights accrued under tilings made after the passage of the act. (Italics ours). This right of way for the ditch, it is true, must be compensated for, if its construction injures the possession of those on the public domain.; but so- far as the right to burden the land with a ditch is concerned, by this act of congress the absolute right was granted by the government toi build a ditch across it. * * * Under the said acts of congress the grantees of the land, now owned by the defendant, took them subject, by operation of law, to- the burden of the right of way for the ditch.”
In High Line Canal Co. v. Moon, supra, the same rule is announced as in Tynon v. Despain, the difference in the facts being that the tract of land there involved was a parcel of “school land” which was given to the state by the national government. Across this parcel of land a ditch was begun in 1873, and thereafter completed and used continuously. There was some question as to' whether the grant from the United States to- the State of Colorado took effect in 1861 or in 1876. It was contended that the grant made in 1876 was in praesenti under the act off 1861, and took effect upon the formation of the state; but the court said:
“Whether the grant from the United States was one in praesenti, under the act of 1861, to take effect upon the formation of the state, or was made by virtue of section 7 of the enabling act off March 3, 1876 (1 Mills’ An. Stats., p. 92), we need not determine; for in Broder v. Water Company, 101 U. S. 274, 25 L. Ed. 790, it was held, in a case somewhat similar to' the one at bar, that the act of 1866 referred to was rather a voluntary recognition of. a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one;’ from which it would seem to follow that the petitioner’s easement, in controversy here was a pre-existing right, antedating the passage of the organic act of the territory, and so protected by the rule in the Tynon case, supra.”
Inasmuch as we have concluded that the ruling in theTynon case is directly in point, and decisive of the issues herein made, irrespective of the question of any agreement, consent, acquiescence or waiver alleged by defendant and denied by plaintiff, and that this court should observe the rule stare decisis in regard to' such issues, we shall not enter into
In support of the judgment, it is also asserted that no easement can be predicated on an intermittent use such as is here shown; but where the right of eminent domain can be successfully invoked, we think the question of intermittent use is not controlling. The use of practically all irrigation works, such as ditches, and reservoirs, in this altitude and latitude is necessarily intermittent, as, indeed, is all irrigation, the continuity of which depends on the crops, the season, the rainfall, the relative priority of ditches and reservoirs, etc. But while the- use of such works is intermittent, the easement therefor is necessarily continuous, in order, to be ready for use when irrigation is required and the supply of water for storage- or immediate use is available. We believe it has never been, nor can be successfully, asserted that such intermittent use as. is here shown would prevent the taking of land under the eminent domain act for ditches and reservoirs. Indeed, the plaintiff’s theory, as shown by his. pleadings and briefs, is. that the land involved in this case can be so- taken if the damages be first fixed and compensation paid. That fact, once conceded, carries with it, we think, the inevitable conclusion that the taking and use, without objection, for such purposes, under the acts of congress, before patent, gives the right to- retain possession.
It is 'seriously urged upon us that this, court should not be governed by the Tynon case; but the decision of this, case turns, upon the construction of certain acts' of congress, which were there construed, and the law as so construed was. the law of this state when patent issued. As plaintiff purchased
If we felt 'free to follow our own interpretation of the law, rather than to stand by decided cases, we might easily, and, we think, properly, hold that Wadlin had a right to enter upon the land in dispute and build his reservoir thereon under section 3 of the act of congress of July x, 1862, (12 Stat. at Large, p. 1492), which provides that “all such lands so granted by this section which shall not be sold or disposed of by said company within three years after the entire road, shall have been completed, shall be subject to settlement and preemption like other lands, at a price not exceeding $1.25 per acre, to be paid to' said company.” There is not a scintilla of evidence in this case to show that section 29 was disposed of by the company until the date of patent — some twenty-eight years after the definite location of the line, perhaps a quarter of a century after the road was completed, and nine years after the reservoir 'dam was begun; but we have no doubt it couíd be shown that all the property of the Denver Pacific Railroad Company, including its interest in these lands, was pledged as security for its bonds, and thereafter mortgaged, prior to' the initiation of the reservoir. In Platt w. U. P. R. R. Co. 99 U. S. 48, 25 L. R. A. 424, it was held that such mortgage constituted a disposal of the land, within the meaning of the act. Following our own reason in interpreting the act, we would agree with the dissenting opinion of Mr. Justice Bradley, concurred in by Justices Clifford and Miller, which holds that by the mortgage the lands were not “disposed of” within the contemplation of the act, and. were therefore subject to settlement, conditioned only upon the payment of $1.25 per acre to the railroad company;
We'are unwilling to' conclude this opinion without expressing our conviction that the principle announced in the Tynon case by which that decision, as to' the “railroad tract,” is governed, is sound. The right to occupy land on the public domain before patent, when necessary for ditches and reservoirs incident to the acquisition and use of water for irrigation, has its roots deep in the natural conditions which exist in the arid regions. It springs from the necessity for irrigation, without which the land must remain barren and practically uninhabitable, but with which it is made to fructify and provide abundant sustenance for multitudes to’ whom it may then offer a home and abiding place. Because of this necessity, the courts have wisely held that the right to these easements always existed, and therefore was pre-existent to the acts of congress which seemed to grant, but which in fact only recognized and confirmed it, and that it was net taken away by those other acts of congress by which vast areas of public domain were granted by wholesale gift to railroad corporations in aid of the construction of their railroads, -but although not exercised until after the railroad grants had attached, remained unimpaired, except as to payment of damages to possessory rights, at least until by the issuance of patent prior to occupation of such lands by the owner of water rights for irrigation, the acquisition of easements therefor became subject to state laws only. “Primarily, where the climatic conditions are such as exist in Colorado, the right to convey water for irrigation purposes over land owned” by another is founded on the imperious laws of nature, with reference to which it must be presumed the government parts with its title.” — Chief Justice Thatcher, in Schilling v. Rominger, 4 Colo. 100, 109; Yunker v. Nichols, 1 Colo. 551; DeGraffenried v. Savage, 9 Colo. App. 131, 47 Pac. 902. Nor do we wish to.be understood as blindly following decided cases. Following precedent, when established by well-con
For the reasons given, the judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
We will not undertake to determine, nor. suggest, the area of said section 29 which is properly subject to use by the defendant 'for reservoir purposes, further than to say that it cannot be extended beyond the limit of actual use as shown by the evidence, and should be restricted to the smallest area consistent with practical use of the reservoir, having in view the intermittent supply of water and the right of the owner of the servient estate to have the fullest possible use of his lands.
Reversed and Remanded.