10 Colo. App. 360 | Colo. Ct. App. | 1897
delivered the opinion of the court.
This suit was instituted by plaintiffs in error in March, 1890, to restrain defendants from diverting the waters of Big Fountain Creek to the damage of plaintiffs. It is a contest over the right to divert and use said waters for agricultural purposes between two irrigating ditches, — the Hall and Owen ditch, owned by plaintiffs, and the Lincoln ditch, owned by defendants. The inception of the right of the Hall and Owen ditch was claimed to date from a diversion of the water and its actual appropriation to beneficial uses in 1862; that of the Lincoln ditch from a similar diversion and appropriation in 1861. In February, 1882, in proceedings in the district court of El Paso county to adjudicate the rights and priorities of this and other ditches in accordance with the statutes then in force, a final decree was rendered whereby the Lincoln ditch was adjudged to have priority No. 5, and the Hall and Owen ditch priority No. 8. It is not claimed in this action that the owners of the Lincoln ditch were using more water than was allowed to them by this decree. In their complaint, plaintiffs base their right to the relief demanded upon their prior diversion and appropriation and continuous user since 1862. Defendants W. H. and F. F. Roby, the other defendants not appearing, answered,
Whilst it would appear from the pleadings that plaintiffs intended to put in issue the validity of the decree, no attempt was made to do so, either in the argument or trial, and they expressly disclaim such intention, relying wholly upon the question of abandonment by defendants. It is well settled in tins state by the highest judicial authority that the right to the use of water is based upon its actual diversion, and its application to a beneficial use. Also that the continuance of the right depends upon the continuous user of the water, and hence may be abandoned by nonuser. Sieber v. Frink, 7 Colo. 154; Nichols v. McIntosh, 19 Colo. 28; Combs v. Agricultural Ditch Co., 17 Colo. 152. Plaintiffs claim that the evidence shows, first, a waiver subsequent to the decree by an agreement or consent of the then owners of the Lincoln ditch, of its adjudged priority in favor of the Hall and Owen ditch; second, the actual nonuser of the water by the owners of the Lincoln ditch from 1882 to 1890; and third, the user by Hall and Owen during said period of the water so abandoned, openly, and adversely, and under a claim of right.
We might very properly under the circumstances dismiss the further consideration of this case upon the ground repeatedly held by this court that the appellate court will not
It is elementary that in claiming a right under abandonment, the burden of proof is upon the party asserting it, and before it can be sustained, the abandonment must be shown by a preponderance of proof. Especially should this rule be invoked and strictly enforced in a case like that at bar, where it is claimed parties had abandoned a water right shown to be of great value, after twenty years’ user of it, and immediately after a solemn decree of court confirming their title to it. No necessity exists for a review in detail of the evidence presented, and such a course would extend this opinion beyond any reasonable limits. It is sufficient to say that the evidence wholly fails to show by a preponderance of proof, the existence of any one element necessary to constitute abandonment. That which tends to substantiate it, as plaintiffs claim, is too vague, indefinite and uncertain. Intention, for instance, is the very essence of abandonment, and the intent of defendants to abandon is not shown to have existed at any time. The mere fact, conclusively shown and really not disputed, that during each year from 1882 to 1890 the lands lying under the Lincoln ditch were cultivated and produced a crop by the use of water from the Big Fountain transported through the ditch in question, conclusively shows that there was no abandonment, and outweighs all of the evidence of plaintiffs’ witnesses based upon their surmises and opinions. This cannot be controverted by the mere opinions of witnesses that if more water had been used, better and larger crops could have been raised. The mere fact that parties
Affirmed.