13 Colo. 111 | Colo. | 1889
Lead Opinion
delivered the opinion of the court.
It is alleged in the complaint that the ditch through which all the parties to this action i’eceive water for irrigation “is composed of two ditches, the upper one formerly known as the ‘ Golden Canal ’ and the lower one formerly known as the “'Extension ditch.’ ” It does not, however, appear that these two ditches were constructed at the same time, nor whether water was diverted from the natural stream, which is the common source of supply, through both ditches, the same season or upon different seasons.
If, as the language seems to indicate, the lower ditch is merely an extension of the upper one, formerly known
It is well established that no mere diversion of water from a stream will constitute the constitutional appropriation. To make it such it must be applied to some beneficial use, and in case of irrigation it must be actu
“ Fifth. That the plaintiff has a priority to the use of such an amount of water from said creek that, after evaporation and leakage in the carriage, there shall be*116 and remain one hundred inches thereof when turned from said ditches into the lateral ditch leading to said land, for the purpose of irrigating said land, dated from about the 1st day of April, A. D. 1881, and that he has heretofore employed the owners of said ditch to convey said water through said ditches to the head-gate of the lateral ditch leading from said Extension ditch to the lands of said plaintiff.”
“Eighth. That there is plenty of water in said creek that is unappropriated on any priority antedating said priority of the'plaintiff to fully furnish said one hundred inches of water to the plaintiff, but said defendant wrongfully and fraudulently refuses' to furnish the same, and threatens that it will not furnish the same, during said season, in case there is not water enough for all priorities, and that it will make the plaintiff prorate the water in said ditch with a large number of priorities that are subsequent in time to the said priority of the plaintiff; and that said subsequent priorities are for the purpose of irrigating, except a very small amount that may be used for domestic purposes; and that he will have to abandon the same if that is done.”
In view of this pleading I am unable to agree with the deduction drawn by the Ohief Justice, which, as stated by him, is: “The question propounded in this case resolves itself into the following: May the legislature provide that in times of scarcity water shall be prorated among consumers haying priorities of the same date?”
Of course, there can be but one answer to this question; but in my judgment no such question is presented by the pleadings. On the contrary, the plaintiff expressly alleges that he has a priority, and that the defendants’ right is subsequent in point of time to such priority. This is either a good allegation or it is not. If the averment “that the plaintiff has a priority,” etc., is to be treated as the statement of a fact, rather than as a conclusion of law resulting from certain facts, it stands
The rule requiring the facts relied upon by the plaintiff to entitle him to a recovery to be stated in the complaint contains the fundamental and most important principle of the reformed system of pleading. It is not technical, but substantial; not a useless requirement, but necessary to advise the opposite party and the court of the true nature and object of the suit; and the courts are not at liberty to disregard the statute or supply a statement for the purpose of aiding a pleading otherwise radically defective.
In the case at bar the sufficiency of the complaint was promptly challenged by the defendants by a demurrer which should have been sustained. It will be time enough to determine whether or not the prorating provisions of the statute of 1879 can be carried into effect in a given case without infringing upon vested rights, when it is made to appear by his pleading that the party complaining has such rights, and that the same will be endangered by some action taken or threatened under the statute. Such a case is not before us, and it appearing that the term of plaintiff’s alleged contract with the defendant company has long since expired, is an additional argument against pursuing this investigation further.
For the reasons stated, I am of the opinion that the judgment should be reversed.
The complaint states certain conclusions of law, and might have been more artificially drawn in
The object of the action is to enjoin such prorating, and compel defendant to allow plaintiff the entire quantity heretofore used by him, regardless of the interests of those co-consumers whose use post-dates that of plaintiff, and regardless of the command embodied in the prorating statute.
The question which I shall presently state, predicated upon the foregoing alleged facts, is fairly presented by the pleadings. So thought the court below, and the question alluded to was there determined on its merits. Both parties are anxious to have this important subject of controversy adjudicated by this court also; and I shall, without further discussion, assume that the matters relied on are sufficiently stated, and proceed to show why these matters do not constitute a cause of action.
But before doing this, I pause briefly to remark that the case at bar is not analogous to that of Rominger v. Squires, 9 Colo. 327, upon which reliance is placed. While the complaint avers that defendant’s canal “is
In my judgment the alleged facts above detailed, which are admitted by the demurrer to be true, require an answer to the following question: Does the “priority of appropriation,55 which by virtue of the constitution gives the better right, apply to individual consumers taking water through the agency of a carrier, so that, notwithstanding the prorating statute, each consumer acquires a separate constitutional priority of right, entitled to judicial enforcement, dating from the beginning of his specific use?
If this question be answered affirmatively, the statute is void and the complaint states a cause of action; if answered in the negative, the statute is in this respect valid and the demurrer should have been sustained.
The words “carrier" and “consumer" will be used throughout this opinion as in Wheeler v. Irrigation Co. 10 Colo. 582, meaning the canal company and tiller of the soil, respectively. The word “co-consumer" will also, for convenience, be applied exclusively to consumers taking from the same artificial stream.
The carrier makes a diversion both in fact and in law. This diversion is accomplished through an agency (the carrier) recognized by the constitution and statutes, and for purposes expressly named in both; hence it cannot be challenged as illegal.. It would undoubtedly become unlawful were the water diverted not applied to beneficial uses within a reasonable time; but, when thus applied, the diversion unquestionably ripens into a perfect appropriation.
If the consumer applies water to a beneficial use within a reasonable time after the carrier’s diversion, the appropriation relates for its priority back to such diversion. This proposition was in effect announced in Wheeler v. Irrigation Co., supra. It is substantially a restatement of the uncontroverted doctrine that- the appropriator’s right, proper diligence being employed, dates from the beginning of his ditch. There may, of course, be secondary diversions (to which .the rights of secondary consumers relate) through subsequent lawful enlargements of the quantity of water legally taken in the first instance.
The foregoing view is not a recognition of ownership in the carrier, save of its canal; nor does it in the slightest manner detract from the consumer’s constitutional right of user. The carrier in and of itself has no independent priority (though the irrigation statutes use language that might give this impression), and any rights it may hold in connection with the water diverted depend for their continuance upon the use made by consumers. The carrier becomes the consumer’s agent, and its labors clearly inure to his benefit. By taking from its canal the consumer recognizes and ratifies its acts of construction and diversion, making them his own. And the situation, so far as this question is concerned, is not different from what it would have been had the consumer in fact employed the carrier to construct the canal for himself alone.
It is obvious from the foregoing that, in my judgment, all co-consumers taking water within a reasonable time have priorities of even date with each other. And the question propounded in this case resolves itself into the following: May the legislature provide that in times of scarcity water shall be prorated among consumers having priorities of the same date? For, if any of the co-consumers referred to in plaintiff’s complaint did not use the water claimed by them within a reasonable time from the date of defendant’s diversion, the fact was material and should have been pleaded. The question as thus restated can receive but one answer. The legislative right to provide this, as well as all other reasonable regulations not obnoxious to constitutional objection, for the use and distribution of water, cannot be denied.
There is nothing in the assertion that the prorating statute, in so far, at least, as it applies to cases like the one at bar, is class legislation, and for that reason void.
This is purely a question of constitutional construction, and the constitutional meaning does not seem to be obscured by any serious ambiguity; but were the meaning doubtful, the argument, based upon supposed hardship and injustice, is, in my judgment, not entitled to notice. It is true, the consumer who first uses may be compelled to prorate with another whose use is subsequent in date. But each consumer has a perfect right to go to the natural stream for the water he needs. There is no law forcing him to deal with the carrier. It is no answer to say that the overpowering law of necessity takes away his volition to choose; for he in fact makes his election when he purchases land so far from the natural stream as to compel reliance upon the carrier.
But when he elects to take from the carrier’s canal, and thus to employ this lawful agency, he cannot reject the accompanying lawful obligations. The legislature is powerless to say that he shall not take unappropriated water from the natural stream; but that body can declare that if he employs the services of a carrier he shall take notice of and be governed by such valid regulations as have been adopted pertaining to the distributions of water thereby.
Under the constitution, statutes and decisions, as I read them, the consumer takes with full knowledge that the carrier’s entire diversion will ripen into valid appropriations, provided the water be applied within a reasonable time to beneficial uses. He also takes wfith knowledge that the different lawful co-consumers will have the same priority — a priority resting for its commencement upon the carrier’s diversion, or dating from a sub
The rule relating to legislative interpretation maybe invoked in support of the foregoing construction. In 1879, less than three years after the adoption of our constitution, the legislature enacted a law for the settlement of priorities of right to water. This law covered reservoirs and carriers’ canals used in storing and delivering water to consumers, as well as private or partnership canals and ditches. By virtue of its provisions a priority was to be awarded the carrier’s canal according to the date of diversion of water thereby from the natural stream, and the quantity diverted and used; but no distinct and independent priority in the consumer was in any way recognized, though he is expressly authorized to testify concerning that of the carrier. If I understand this law aright, the priority thus awarded the carrier’s canal was intended to inure to the benefit of all consumers taking ■water therefrom, and to fix the priority of their respective appropriations. The legislature of 1881 revised this act, making numerous changes, but retained and redeclared the conspicuous feature above named. The general assemblies of 1885 and 1887 each in turn again dealt with the subject, but adhered strictly to the theory in this respect adopted by their predecessors. The prorating provision here challenged was also embodied' in the legis
The view I have taken is therefore in harmony with the construction adopted by the legislature. In my judgment this view also greatly simplifies the perplexing problem of water-rights, which is unsurpassed in difficulty by any other subject known to our legislation or j arisprudence.
I would conclude this opinion here were it not for the fact that others, including one of my colleagues on the bench, are firmly convinced that the foregoing construction of the constitution is unsound. They contend that the constitution guaranties to each consumer a priority dating from the commencement of his individual use. The carrier’s original diversion, say they, has nothing to do with the consumer’s priority; it is as if the consumer, at the date of his use, made a distinct and independent diversion from the natural stream, merely employing for the purpose the carrier’s canal; and upon this constructive diversion rests the superstructure .of their theory regarding the consumer’s appropriation and priority.
To what has already been said may be added the following considerations which preclude the adoption of this view:
First. It is wholly impracticable; hence it would operate to defeat the beneficent purpose of the constitutional provision upon which reliance is placed.
The protection awarded in connection with a consumer’s constitutional priority extends to controversies between him and all his co-consumers, though their number be legion; but the assertion of his rights cannot be limited to such controversies. He is necessarily entitled to the quantity of water covered by his appropriation as against all others obtaining water at a later
• Not only must there he a priority for each consumer corresponding, according to the view we are now considering, with the date of his first application to use, but there must also be an additional priority for each subsequent enlargement of the quantity of water taken by him. Besides, certain consumers will abandon the use of water from the carrier', and other consumers will secure the right to the use thus abandoned, In each case of this kind the old priority must be dropped and the new priority recognized. This new priority then becomes a factor in re-adjusting the five thousand priorities. Nor is the quantity of water appropriated at all significant. The appropriation, whether it be enough for five or five hundred acres, is to receive precisely the same recognition. Moreover, all these priorities are to be accurately determined as well as impartially protected. They depend upon the dates of the respective applications to use, and these dates must be ascertained with reference not merely to years nor to months, nor even to weeks, but also with reference to days.
There is no exaggeration in the foregoing; for, if the
Second. The view urged upon us renders all legislation heretofore adopted, looking to the adjustment of priorities to the use of water, largely delusive. Under it other provisions besides the prorating section must fall. In so far as these statutes provide for the adjudication of priorities to reservoirs and canals constructed for storing and supplying consumers with water, they are worse than useless. In all .water districts containing such reservoirs or canals, the time, labor and money heretofore expended in settling priorities have been expended largely in vain. The adjudications upon which people confidently rely, and upon the strength of which, in many instances, property rights have been acquired, are no longer final or binding. Any consumer has, under this viewq the constitutional right to call for a re-adjustment of priorities based upon the date of his individual use. In such case not only must the re-adjustment assign to him a priority with reference to his co-consumers, but the rearrangement of priorities must also include consumers from other canals as well as individual appropriators diverting water from the same natural stream; for, as already suggested, the alleged constitutional right of the consumer, if it in fact exists, cannot be confined to controversies with those taking from the same artificial stream; it relates to the natural stream, and he must be permitted to contest priorities with all parties taking directly or indirectly therefrom.
To avoid, at least in part, the foregoing disastrous consequences, an ingenious theory is advanced. It is gravely argued that we have in this state a double system — more
This theory reads well, but the feasibility of its practical application must be doubted. Unfortunately both systems must be applied to the same identical water at the same identical time; that is, a canal prior in diversion is under one system to receive its one thousand inches of water, while the consumer prior in use, but taking from a canal later in diversion, is, under the other system, secured precedence to five hundred of the same one thousand inches of water. But how can the prior canal and the earlier consumer who takes from the later canal both secure at the same time the same identical water? This crude illustration shows the utter impracticability of the theory. The two systems are in hopeless conflict. The supposed constitutional priority of the consumer supersedes the supposed statutory priority of the canal, and whenever the arrangement of the consumers’ constitutional priorities conflicts with the arrangement of the carriers’ statutory priorities the latter must inevitably give way.
It seems to me that the statutes themselves tend largely to negative the double system priority theory.
Objections to the view under consideration might be multiplied; but the foregoing are amply sufficient to demonstrate that the framers of the constitution anticipated no such construction of the language employed. The provisions of that instrument were adopted with more than ordinary foresight and wisdom. They were intended to be practicable, and to secure the wisest and most beneficial use possible of the waters flowing in the natural streams of the state. No Utopian notion regarding rights that cannot be enforced was indulged in, and no interpretation should be sanctioned that in effect nullifies, so far as its. usefulness is concerned, an important part of the provision.
The prorating statute, which we are asked to declare
There is no force in the argument that the construction contended for is accessary in order to prevent carriers from contracting to carry more water than they have a right to transport; nor is the suggestion more pertinent that without such construction the carrier will collect the annual rates for carriage from consumers, put the money in its coffers, and then say that it cannot deliver the water. In the first place, a contract to carry more water than has been lawfully diverted would be unlawful; and to prevent injuries resulting therefrom, or to recover damages in case the injuries are suffered, ample legal remedies exist. And secondly, ■ whether in times of scarcity the water available be distributed equitably among all its consumers, or whether it be delivered to a small number thereof, is a matter of no interest to the carrier; in the absence of statutory regulation it will continue collecting its charge for transportation at the beginning of the season, and then, if there be a scarcity, will refer the complaining consumer, who receives no water or a diminished quantity, as the case may be,, to the decision of this court for authority in support, of its action.
Concurrence Opinion
The constitutional question involved in this controversy is one of vital importance to the welfare of our people, and the determination thereof by this court must be far-reaching in its consequences to those engaged in agricultural pursuits. Hence, while concurring in the opinion of Mr. Justice Hayt, a further expression of opinion upon the merits of the question so fully ai’gued by counsel seems desirable at this time.
The question under consideration may be stated thus: Does the “priority of appropriation,” which the constitution declares “shall give the better right as between those using the water for the same purpose,” apply to the individual consumer taking the water through the agency of an artificial stream, or is it limited to those taking water directly from the natural stream?
The appropriation of water, within the meaning of the constitution, consists of two acts — First, the diversion of the water from the natural stream; and second, the application thereof to beneficial use. These two acts may be performed by the same or different persons; but the appropriation is not complete until the two are conjoined. Hence, when the acts are performed by different persons at different times, it becomes necessary to determine which is the essential act to which the “better right ” attaches.
It will be observed that, by the express language of the constitution, the “better right” is guarantied “as between those using the water for the same purpose.” The different purposes specified are domestic, agricultural and mechanical. Whether there are other purposes not specified need not now be discussed. Can the carrier of water for hire be said to be using the water in the sense spoken of in the constitution? The railroad company, which carries farming implements from the
It is claimed that “the constitution recognizes priorities only among those taking water from natural streams.” A reference to sections 5 and 6, article 16, will show that it is the water of natural streams, irrespective of the mode of diversion, that is dedicated to the use of the people, subject to appropriation; and priority of right thereto is made to depend upon the time of using the water for beneficial purposes, and not upon the fact of taking the water from the natural stream. Indeed, the word “ from ” does not appear in either of the foregoing sections; but it is not necessary to rely upon mere verbal analysis to sustain the consumer’s priority of right based upon priority of use. Every consumer cannot take the water directly from the natural stream. Irrigating ditches and canals must be resorted to as a means of diverting and carrying the water to places where it
The foregoing views are believed to be in harmony with the several opinions of this court upon the subject of water-rights. In the case of Thomas v. Guiraud, 6 Colo. 530, it is said: “The true test of appropriation of water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same, or making such application, is immaterial.” In the case of Wheeler v. Irrigation Co. 10 Colo. 582, Mr. Justice Helm used the terms “carrier” and “consumer,” as used in this opinion, to denote the party diverting and conveying the water, and the party applyiug the same to beneficial uses, respectively. In delivering the opinion of the court in that case the learned justice says: “The diversion ripens into a valid appropriation only when the water is utilized by the consumer.” Speaking of the rights of the carrier, he declares: “They are dependent for their birth and continued existence upon the use made by the consumer. ” The same opinion is authority for the doctrine that neither the title nor a salable interest in the water of natural streams vests in the carrier by means of his diversion or cai'riage thereof, but the ownership remains in the public, “ save, perhaps, as to the limited quantity that may be actually flowing in the consumer’s ditch or lateral.”
In Rominger v. Squires, 9 Colo. 328, there was a consolidation of two ditches forming a new one, which was to supply the .consumers from the two old ditches, and the question arose as to what were the relative rights of the several consumers in respect to priority of right to the use of water under the consolidation. The appellee attempted to maintain that “the appropriations of water by the different parties were to be referred to the same date,” and the district court so held. But this court, Mr.
In Coffin v. Ditch Co. 6 Colo. 446, similar views were expressed, as follows: “ Houses have been built and permanent improvements made, the soil has been cultivated, and thousands of acres have been rendered immensely valuable, with the understanding that appropriations of water would be protected. Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.” The latter opinion is also authority for the doctrine that priority of right to water by priority of appropriation is older than the constitution itself, and has existed from the date of the earliest appropriations of water within the boundaries of Colorado. From these opinions the conclusion seems inevitable that the “better right,” acquired by priority of appropriation, is applicable to individual consumers as between themselves when they receive the water through the agency of an artificial stream, as well as when they receive the same
Since the doctrine of priority of appropriation is applicable primarily to the consumer, it may be asked, what, then, are the objects and purposes of the acts of 1879 and 1881, providing for the determination of priority of rights to the use of water for irrigation between ditches, canals and reservoirs? The question is not as difficult to answer as might at first appear. They are in the nature of police regulations to secure the orderly distribution of water for irrigation purposes, and to this end they provide a system of procedure for determining the priority of rights as between the carriers. This opinion must not be understood as denying that carriers may acquire and enjoy certain rights resulting from priority of appropriation (strictly speaking, priority of diversion) as between themselves. In a certain sense they may be said to be “usingthe water for the same purpose,” and so, by analogy, may be termed “ appropriators,” or “ quasi appropriators,” of water. Hence, to secure and protect these rights, and to prevent conflicts which otherwise would almost inevitably ensue if the diversion of water from the natural streams were not placed under governmental control, the acts of 1879 and 1881 were passed. While, under these acts, carriers are recognized as having priorities of right to the use of water by appropriation as between themselves, yet the act of 1881 very clearly indicates that these priorities are dependent upon the carriers supplying the water to actual consumers. Section 1 requires that the statement to be filed by the party claiming a priority for any ditch, canal or reservoir shall set
In passing these acts our legislators evidently considered that the priorities of carriers might be determined and regulated as between themselves; but they were careful to base these priorities upon the service to be rendered thereby to actual consumers. The carrier’s priority of right to water is established and regulated by statute as a matter of convenience; the consumer’s priority is based upon the laws of nature ex necessitate rei. It has existed from the date of the earliest appropriations of watein this country; it was recognized and firmly engrafted into the constitution. Schilling v. Rominger, 4 Colo. 104; Coffin v. Ditch Co., supra.
Section 4 of the act of 1879 (Gen. St. § 1722) provides for prorating the water actually received into and carried by any irrigating ditch, canal or reservoir among all the consumers therefrom in time of scarcity, so that all such consumers shall suffer proportionately from the deficiency of water. This provision may be properly carried into effect when the rights of all the consumers are equal in the matter of their respective appropriations, as when a ditch has been constructed as a common enterprise by and for the mutual and equal benefit of all the consumers therefrom, or when, by reason of contractual relations, waiver, or other circumstances, certain consumers stand on a footing of substantial and practical equality, having no priority of appropriation one over another.
A single illustration will suffice to show the disastrous consequences which would ensue if the prorating statute should be made the rule for the distribution of water for purposes of irrigation,, instead of the rule of priority. An irrigating ditch is constructed, the first and only one taking water from a small natural stream. The first year five consumers apply for and receive each one hundred inches of water for the irrigation of their lands; the next year, the ditch being enlarged, five more apply and receive a like quantity; and the third year, five more; and so on successively until thirty or forty consumers are located under the ditch. Perhaps the first five might be required to prorate with each other in time of scarcity, should their appropriations be practically equal in
It may be said that the foregoing illustration is founded upon an extreme and unusual case; but extreme cases are often necessary to test the correctness of general rules. It may also be claimed that, as an irrigating ditch acquires an additional priority for each enlargement, the statutory rule for prorating is to be enforced only as between those receiving wrater under the same priority. The unanswerable reply to this claim is that such is not the language of the prorating statute; nor does such appear to be the status of defendants as shown by the complaint in this action. If defendants are in fact entitled to prorate with plaintiff, they may undoubtedly by answer set forth any facts from which such right arises.
The responsibility of thus limiting the operation of the prorating statute has been fully considered. The authority “of the general assembly to enact laws regulating the distribution of water to actual appropriators, provided they do not substantially affect constitutional or vested rights, is undoubted ; and the doctrine that it is the duty of the courts to uphold and enforce every act of the general assembly within the sphere of civil government, so far as the same is not in palpable conflict with the constitution, is recognized and admitted to its fullest extent,
Thus far the important question involved in this case has been considered as the same was argued by counsel upon both sides. It is contended, however, that the demurrer challenging the sufficiency of the complaint, in its statement of facts, is well taken upon other grounds, some of which are extremely technical, and will not be noticed in this opinion. A high standard of technical accuracy in the preparation of pleadings in irrigation cases should not be required, lest the products of the soil be destroyed while time is wasted on mere matters of form. A plain statement of the substantial facts should be held sufficient.
In this case it is averred in the complaint, in substance, that the plaintiff has a priority to the use of water through the ditch of the defendant company for the irrigation of his lands, antedating the priorities of the other defendants. Even if this averment, which would seem to be only a legal conclusion, should be held sufficient, there still remains the- substantial defect that the complaint nowhere states that plaintiff has in fact been accustomed to take and apply the water, without waiver or abandonment, or at all, to the irrigation of his crops or trees. It was error, therefore, to overrule the demurrer.
Notwithstanding I heard and determined the demurrer iu the court below, the importance of the questions involved, and the diverse views of the different members of the court, have caused me to depart from my usual custom, and to participate fully in the review of the case in this court. I concur in the reversal of the case for the reasons stated in this opinion.
Reversed.