29 Colo. 125 | Colo. | 1901
delivered the opinion o f the court.
Defendant is the owner of an appropriation of the waters of Beaver creek for placer mining purposes, which antidates the initiation of any rights to which plaintiff has succeeded to the use of water from that source. In 1882 the party through whom plaintiff dei'ives title to the appropriation under which he claims, entered upon the placer ground of the grantors of appellant on which the waters of the stream were then being used for placer mining purposes, and without the knowledge or consent of the then owners of such ground, constructed a ditch which diverted water after it passed through the placer flumes and over the placer dump, but before it returned to the channel of the creek. While this action appears to have been acquiesced in by the then owners, there is evidence directly to the effect that the parties so taking the water should never assert a legal claim or right thereto, nor should his use of such water interfere with the operation of the placer. There is no' testimony to the contrary. The most that can be claimed on the part of plaintiff is, that the owners of the placer acquiesced in the construction of the ditch and the diversion of water after it had been -used for placer purpos s. The original headgate of the ditch was immediately below the placer dump. It was maintained there for several years, and then moved several hundred feet northeasterly. This change was occasioned by a change in
The theory of the complaint is that the grantor of plaintiff made a valid appropriation of the waters of Beaver creek without any limitation whatever, upon the rights so claimed to have been acquired. The trial court so found and concluded, and upon this theory redered the judgment of which appellant complains. Whether or not the judgment given is correct, if the claim of plaintiff had been established, is not a question which we are required to determine. Without attempting to indicate what rights are vested in him to the use of the water of the stream for the purposes of irrigation, we shall base our decision solely on the one question of whether or not, in the circumstances of this case, plaintiff is entitled to the relief demanded. For the purposes of this case the very most that can be claimed on behalf of plaintiff is, that he is the licensee of appellant. The right of his grantor who initiated a use of the water which he now claims the appellant has wrongfully fouled, was to water which the predecessors of appellant had first
A license of the character under consideration will be strictly construed. Carleton v. Redington, 21 N. H. 291.
It is also proper to consider the circumstances in which such a license was given if a doubt arises as to the rights of the parties thereunder. Brown v.
In the absence of testimony it will not be presumed that the grantors of the defendant ever intended to vest a right in a licensee of that scope which, if asserted, would be practically destructive of their own estate. In addition, we have the undisputed testimony of the party who discussed the situation with the grantor of plaintiff, to the effect that the permission granted to take the water from below the placer dump was upon condition that it should not ripen into a right, or the use of such water interfere with the operation of the placer.
The judgment of the district court.is reversed and the cause remanded, with directions to enter judgment that plaintiff take nothing as prayed in his complaint, and dismiss the action.
Jitdgment reversed.