35 Colo. 105 | Colo. | 1905
delivered the opinion of the court.
The parties are appropriators of water from the La Jara river, a natural stream in water district No. 21, the appellee being the senior appropriator, the head gate of whose ditch is lower down the stream than that of appellant. After these appropriations and decrees therefor were made divers other persons made appropriations of water from another natural stream in the same water district — Conejos' river-— which has no connection whatever with the La Jara. These subsequent appropriations were not made for the purpose of irrigating lands whose natural drainage is into the Conejos, but were diverted and carried in ditches over an intervening ridge and spread upon
In its statement of claim appellant alleges that it began to make use of these seepage waters in 1886 or 1887, and it claims, by virtue of the appropriation then made — the right to which, it is said, is recognized and confirmed by an act of the general assembly passed in 1889 — so much of such seepage water as first rises upon lands which it owns or controls. In this proceeding, brought for the purpose of having its right thereto adjudicated, the matter was referred to a referee for findings and a report. He heard evidence, and his conclusion was that the evidence was so contradictory that he was unable to find therefrom that appellant had made such appropriation, and he recommended a decree accordingly. The district court affirmed these findings and rejected the claim.
1. Appellant’s contention is that it has a right, recognized and confirmed by the general assembly, to make an appropriation of seepage water. The act relied upon is found in Session Laws of 1889, page 215, and reads:
“Sec. 1. That all ditches now constructed or hereafter to be constructed for the purpose of utilizing the waste, seepage or spring waters of the state shall be governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the water of running streams: Provided, that the person upon whose lands the seep*108 age or spring waters first arise shall have the prior right to such waters if capable of being' used upon his lands.”
Whether and to what extent this act is constitutional we decline to say, for the ease as made does not come within its provisions. It will be observed that the act purports to malm applicable to appropriations of waste, seepage and spring waters of the state the same laws that govern appropriations of the water of running or natural streams, with the proviso that- the person upon whose lands the seepage or spring waters first arise shall have the prior right thereto, if the same can be used thereupon. Whatever may be the rights of the owner of the overlying lands! to intercept and use upon their surface- the waters seeping or percolating beneath them and before they reach a natural stream, or the right of a landowner to use the waters of a spring that rises thereon, no such question .is here, involved. The appellant seeks to make an appropriation of what it calls seepage water after the same has reached the channel or bed of a. natural stream. As we read the record, the appellant does not claim seepage water which first rises on its own lands at a point outside of the natural stream that flows through them, but waters which first rise- in the bed of the stream itself, not before, but after, they actually reach the channel and form part of the volume of the stream. Nor does appellant claim that this seepage forms part of any water the right to the original or first use of which belongs to appellant as an appropriator, and has been once utilized and turned into the stream with an intent on his part again to use it, or that it is the- water that naturally percolates through its own soil. It is water the original right to use-whieh for irrigation belongs to and has been fully utilized by others and afterwards, by natural law, percolates therefrom and
2. If, however, this were a case within the statute;, and if it be conceded that the statute, is applicable and constitutional, appellant has failed to sustain its claim on that theory. As already said, in discussing the first proposition, the water which it claims as seepage water, as is admitted, comes originally from another stream in another watershed having no connection with the La Jara river, and no claim is made thereto by those who first diverted it. After it is spread upon lands constituting a part of the watershed of the La Jara all of it to which appel
The referee found, and the district court came to the same conclusion, that the evidence did not support this contention. Appellant, however, says that the preponderance is in its favor, and properly insists that it is our duty to weigh and sift this evidence, since-the witnesses were not present before the district judge and the findings of the referee are not binding upon an appellate court in the sense they would be if the trial judge whose judgment is reviewed had seen the witnesses and heard them testify. That duty we have tried to perform, and have carefully read the evidence, and we cannot say that the district court erred in its findings. In the first place, the evidence is conflicting as to whether or not the water which appellant has collected in the stream itself by the construction of dams is seepage water proper; or if so, how much is natural seepage and how much is the Conejos river increase, or how much comes from the defined subterranean channel of the stream itself. It is a well known fact that some streams in this state, after running for less or greater distances on the surface, sink, and by a well defined subterranean channel flow for a number of miles and then come to the surface again.—Platte Valley I. Co. v. Buckers I. Co., 25 Colo. 77.
The method which appellant employs to collect and divert the so-called seepage water is by driving
It is needless to say that some of the questions argued by counsel are of vast importance in this state, but we do not believe that the case, as made by the evidence, calls for an adjudication of the relative rights of appropriators of the waters of a natural stream and of owners of adjacent lands who seek to intercept on their own lands, and before the same reach the stream, waters that otherwise would come into the channel by percolation or seepage.
For the reasons given, the judgment should be affirmed- Affirmed.