46 Colo. 524 | Colo. | 1909
delivered the opinion of the court:
In 1896 the plaintiff made an entry under the homestead laws of the United States upon 168 acres of land in Mineral county, patent title to which he afterwards obtained and still holds. Willow creek, a natural stream, flows through it. About sixty acres of it are natural meadow lands, lying upon either side of the stream, which, without artificial irrigation, yearly produce crops of hay as the result of the annual overflow of the waters of the stream. The remaining agricultural part of the tract is irrigated by water taken out of the stream through plaintiff’s ditch, to which a decreed priority has been awarded, under the appropriate statutory proceedings, as of date July, 1895. Continually since plaintiff made entry, his lands have been irrigated by the two methods mentioned, one natural, the other artificial. Afterwards and about the year 1902 defendant began to operate its reduction mill for the concentration of ores containing lead and zinc as the
The discussion has taken a much wider range than the necessities of the case require. The principal defense is that in his complaint-and evidence
“That the said lands are traversed by the said Willow Creek and that upon entering the same the plaintiff became entitled to the use and benefit of the waters of said creek, following in its natural channel, and undiminished in quality or quantity, except as the same may have been diverted or appropriated*528 by others under the laws of Colorado prior to the appropriation of the same by the plaintiff, as aforesaid.”
Plaintiff says his object in inserting the paragraph was to show to the court that his lands were of such a character and so situated with reference to a natural stream as to bring them within the purview of sec. 3165, Rev. Stats. 1908, which entitles lands of this description to the use of its waters for the purpose of irrigation. Such may have been the intention of plaintiff. Whether there was any necessity for its insertion is not now important. It is, however, directly followed in paragraph 4, by the allegation that for irrigating these lands thus described, plaintiff diverted the waters of the stream, and has seasonably and continuously since that time, so used them, subject only to the rights of prior appropriators, and has also obtained a statutory decree therefor'. It is obvious also that paragraph 3 may with entire propriety be - read in connection with paragraph 10, which sets forth, as recited in the foregoing statement, that sixty acres of the tract are meadow lands and have annually been self-irrigated as the result of the overflow of the stream. Sec. 3176, Rev. Stats. 1908, declares that a land owner who has thus enjoyed the use of water upon his premises by such natural overflow may, if from any cause such irrigation in whole or in part ceases, have the right to construct a ditch for irrigating his meadow and take water from such stream, and the date of the priority of his ditch shall relate back to the time when he first occupied and used his land as meadow land. • The right way to construe a pleading is not to select a single paragraph and determine its meaning, without reference to the context, but to take all the allegations and consider them together. By so doing here it clearly appears that paragraph 3
Defendant invokes another principle, which he says some of the authorities establish, that where an industry, like that of operating a mill for concentrating ores, is absolutely dependent upon the right to discharge waste material into the waters of a natural stream, one who has made an appropriation therefrom for irrigation, whether prior or subsequent to the beginning of the operation of the mill, gets only a qualified right and takes subject to the right of the mill owner to foul the stream. No such case is presented by the evidence, and we are not required to consider it. The court found on uncontradicted evidence, even from the admission of its president, that it was entirely practical and feasible for defendant, with a comparatively small expenditure and within a few weeks ’ time, to take care of the tailings and waste material upon its own premises. It should do so and not cause needless injury to another important industry.
« Another argument, possibly the same one elsewhere advanced, but in another form, is that the waters which defendant uses in operating its mill are artificially produced as the result of mining operations, which the mine owners give to defendant for its milling purposes; and since it is the owner, it may make such use of the waters as it sees fit, and, after they perform their function in the process of milling and have become impregnated with poisonous waste matter, they may b‘e, in such form, turned into the channel of the stream by defendant at its pleasure, and without incurring any liability for consequential
Another contention is that defendant, in operating his mill, is but the agent of the mine owners whose ores it treats under contract, therefore they, and not it, should have been sued. The mine owners are not parties to this action and we are not passing upon their rights. Defendant cannot escape liability, if its own act has contributed to plaintiff’s injury, even if others have participated in the wrong.
Another objection to plaintiff’s recovery interposed in various ways and at divers times, is that tbe natural waters of the stream were appropriated up to its full capacity, during the ordinary flow, by other appropriates, whose rights attached before plaintiff’s appropriation was made, and as the prior appropriations exhausted the entire ordinary natural flow, there was no water left in the stream with which plaintiff could irrigate his lands; therefore he could not have sustained any damage as the result of defendant’s acts, because he had no right that was thereby infringed. This is a fallacious contention. As we have already seen, plaintiff acquired valid rights as the result of his direct appropriation from the stream, and to the overflow of the stream for his meadow lands, and these rights were vested before defendant began the construction or operation of its mill. Plaintiff’s rights were, of course, paramount to any rights defendant had in the waters of the stream. Indeed defendant claims no rights whatever to the natural waters, but only the right to discharge pol
Defendant raises and argues the question whether, in times of scarcity of water, the state constitution gives a priority to agricultural claimants over those claiming for mining. No such question is involved in this case. Defendant has acquired no rights to the waters of a natural stream either, for mining or any other purpose, while plaintiff owns a decreed priority to use water for irrigation. There
The jury were fully justified in returning the verdict they did, and the court’s findings and decree • upon the equitable branch of the case are clearly right. The judgment is therefore affirmed.
Affirmed.