134 P. 269 | Wyo. | 1913
The plaintiff in error brought this action in the District Court of Uinta County against the defendant in error, and brings this proceeding in error to reverse the judgment rendered in favor of the defendant. The action was for damages for alleged interference by the defendant with an alleged water right of the plaintiff, and for an injunction restraining further interference. The petition alleged plaintiff’s ownership and possession of certain described land, and then alleged a water right therefor, and interference by the defendant with such right, as follows: “That by decree of this Court made and entered the plaintiff became the sole and absolute owner of a water right for said land, and that he has ever since used said water right for the irrigation of his said land, except when interfered with and deprived of the same by the defendant as hereinafter set out. * * * * * * That in the season of 1906, and every season since, the defendant has diverted the plaintiff’s
By oral stipulation at the commencement of the trial all claim for damages by either party was waived. Each of the parties has an established right to the use of water, principally for irrigation, from Spring Creek, a small stream, a tributary of Bear River, fed by springs at its source and along its course. The source of the stream is apparently in Section 4, Township 25 North, Range 119 West of the Sixth Principal Meridian, and, pursuing generally a southwesterly course, it flows into and crosses the southeast corner of section 5, the north half of section 8, the northeast quarter of section 7 and a part of the southeast quarter of section 6, in said township and range. The defendant is the owner of land in the southeast quarter of section 5 and. the northeast quarter of section 8, and the plaintiff is the owner of a tract of 160 acres lying partly in section 7 and partly in section 6, and it seems also that he has or had a desert entry covering 40 acres in section 6 and 40 acres adjacent thereto in the southwest quarter of section 5. The defendant’s land is nearer the source of the stream than the land of the plaintiff, but the right of the plaintiff to the quantity of water appropriated by him is prior to that of the defendant. The only appropriation made by the plaintiff has a priority dating from 1879. Defendant’s first appropriation appears to have been made in April and May, 1888, and'he made a second appropriation dating March 6; 1907. By decree of said District Court in 1890 the previously acquired and then existing rights of the parties, as against each other, to the use of the water of said stream were established. That decree recites that the court found-
“It is therefore considered and adjudged by the Court that by reason of the appropriation by said plaintiff as aforesaid, he, the said plaintiff, as against said defendant, of the waters flowing in said creek at the point on said section six where said appropriation was made hath a prior right, and that the amount of water to which he hath such prior right is nine hundred and twenty inches per second, for beneficial uses, and it is further decreed that said defendant by reason of the appropriation made in April and May, 1888, by means of his ditch and dam aforesaid constructed on said section five appropriated as against said plaintiff all the water running in said stream to the full capacity of his said ditch for beneficial uses saving to the plaintiff at all times nine hundred and twenty cubic inches per second at said point on sectioh six, and it is further ordered that each of the parties hereto pay and bear his own costs in this behalf expended.”
By an adjudication of the State Board of Control concluded in December, 1908, that decree appears to have been followed, and for the rights therein determined certificates of appropriation were issued in accordance with the order of the board. A certificate was issued to Orson H. Groo, the plaintiff, describing his appropriation as follows: “Amount of Appropriation .52 cu. ft. per sec.; Date of Appropriation 1879; Description of land to be irrigated and for which this appropriation is determined and established; Total Acreage Thirty-seven (37) acres. 18 A. NW.
It developed upon the trial, during the examination of the plaintiff as a witness in his own behalf, that he was not complaining of any interference with his right to take the amount of water appropriated by and allowed to him from the place of diversion specified in the decree aforesaid and in his certificate of appropriation, but that if defendant had been guilty of any interference with plaintiff’s right or alleged right, it was an interference with an attempted diversion by the plaintiff about a mile farther up the stream and at or near the place of defendant’s diversion. It appeared that on one occasion in 1906 the plaintiff turned the
Having testified to his attempt to divert the water above his original point of diversion the plaintiff was asked this question: “And you wish now in this suit of yours to have a decree of the court to permit you to bring this water upon these two forties of high bench land that you have no water for ?” His answer was: “That’s the only thing I’m here for.” On cross-examination he admitted that he had been using the point of diversion specified in the decree and his certificate of appropriation “right along;” that he never had any other point of diversion; that he had received the amount of water decreed by the court at his original point of diversion; and that his sole object in going up the stream, or desiring to go up the stream, was to irrigate the north forty or the north forties of his land, but he said: “I don’t know but the court may have headed me off so I haven’t got any. water.” It appears from his testimony that he had attempted to use the water from the point farther up the stream prior to the decree of 1890, and that the action resulting in that decree was brought by him for the purpose of restraining the defendant, or his representative or predecessor in interest, from interfering with such diversion by him at that place, and that his right to make
When it fully appeared by plaintiff’s evidence that what he was seeking was to establish a right to divert the water at a different place and farther up the stream than that specified in the decree and his certificate of appropriation and for use on other lands, his counsel asked and was granted leave, over the objection of defendant, to amend the petition by alleging that in 1906 the plaintiff changed the point of diverting the water appropriated by him and took the same out at about the center of the SE. of the SE. yi of Sec. 5, “as he lawfully might do,” and inserting as part of the prayer that the court find and decree that
It is clear that the plaintiff cannot base any right to make a change in place of diversion upon his construction of a ditch prior to 1890 for the purpose of diverting water at the point in section 5 where he attempted to divert it in 1906. We think it reasonably to be inferred from his own testimony that whatever right he n;ay have claimed in 1890 to divert the water at the place now proposed was involved
In this case it may be assumed, without so deciding, that the place of an appropriator’s diversion may be changed if it can be done without injury to the rights of others. That is the well settled rule in other states where the right to water may be acquired by priority of appropriation for irrigation or other beneficial uses. (1 Wiel on Water Rights, 3rd Ed., sec. 504; 2 Kinney on Irr., 2nd Ed., sec. 887). Whether the right to make such change now exists in this
It is shown by defendant’s evidence that below the point of his diversion and between that point and the point of plaintiff’s original diversion the volume of water in the stream is increased by springs. That is a direct benefit to defendant as a subsequent appropriator, which he would lose if the full amount of plaintiff’s prior appropriation should be taken out of the stream where it appears the plaintiff now wishes to divert it. The loss of that benefit, in view of the fact that but a small amount of water usually flows in the stream and that all of it seems to be appropriated, would be a substantial injury sufficient to deny the right of the plaintiff to make the proposed change, assuming that otherwise he might be entitled to make such change. (Bates v. Hall, 44 Colo. 360, 98 Pac. 3). Again, the proposed change is for the purpose of irrigating land not previously irrigated, and which will require more water to successfully irrigate and cultivate it than the land upon which the water appropriated by plaintiff has been applied. Such enlarged use might also be a detriment to defendant. (Bates v. Hall, supra; Diez v. Hartbauer, 46 Colo. 599, 105 Pac. 868; Baer Bros. L. & C. Co. v. Wilson, 38 Colo. 101, 88 Pac. 265). In the case last cited the court say: “If the appellant was the only appropriator, it would have the right to change the point of diversion or place of use of the
If it be conceded that the right exists generally to change a point of diversion when it can be done without injury to others, it does not appear that the plaintiff has made any such change, or that he was lawfully engaged in doing so. He did, it is true, at one time in 1906, divert the water at the point of the proposed change, but that was done by using a ditch which had long since been abandoned by him, and was in the lawful possession of the defendant, and it does not appear that the water so diverted, or any part of it, was carried upon the plaintiff’s land. Certainly he could acquire no right by appropriating to his own use the ditch of another without the owner’s consent. Further, it does not appear that he has any present right to cross with a ditch of his own the defendant’s land, or that he has attempted or is attempting to acquire such right. That the defendant objected to plaintiff’s use of the ditch is shown by his act which is here complained of. The plaintiff is apparently seeking a decree which would establish his right to divert the water at practically, if not identically, the same place where the water is diverted by the defendant, and in effect to appropriate that place and take it from the defendant, without any compensation.
If we understand the contention of counsel for plaintiff, it is not that the plaintiff has established a change in place of diversion, and is, therefore, entitled to protection against interference therewith,- but that desiring to make such change, he may maintain an action to have his right to do so determined beforehand. If that should be conceded, the
In most, if not all, the other states where irrigation is practiced, and water for that purpose and other beneficial uses may be appropriated, the right to change a point of diversion where others will not thereby ,be injured seems to be recognized by statute, and in some of them a proceeding is provided for, either in court or before an administrative officer or board, wherein the questions involved may be determined in advance, and an order or decree may be entered declaring the right to make .the change, or deny
Our conclusion is that upon the pleadings and the evidence the plaintiff is not shown to be entitled to any relief, and the judgment will therefore be affirmed. Affirmed.