1 Colo. L. Rep. 179 | U.S. Circuit Court for the District of Colorado | 1880
Upon motion to dissolve injunction—
Plaintiffs own a flouring mill, situated near Fort Collins, in this state, which is operated by water obtained from the Cache-a-la-Poudre river, through a race about one mile and one-fourth in length. This mill and race have been used by plaintiffs and their grantors since 1872. In the summer of 1879 the Fort Collins Water Power Company, one of the defendants, made another race or canal, parallel in its general course to that used by plaintiffs, and above the latter, so_as to take water from the Cache-a-la-Poudre river at a point about one-fourth of a mile above the head of plaintiffs’ race. In the same year one Joseph P. Watson having obtained water power from the Fort Collins Co., erected a flouring mill on the line of that company’s canal, about one-half mile above plaintiffs’ mill, and fifty yards from plaintiffs’ race. Obtaining power from a point on the river above the head of plaintiffs’ race, the position of Watson’s mill is such that the waters used in operating it may be delivered into plaintiffs’ race, and flow thence down to plaintiffs’ mill. When the Watson mill was completed and set in operation in September, 1879, this was done by agreement between Watson and plaintiffs, and both mills were run with the same water through the autumn of that year, and until business was suspended by plaintiffs in the early part of this year. It is said, however, that this use of the same water by both parties was attended with much difficulty in operating plaintiffs’ mill as the water came to them irregularly and not in sufficient quantity to run the mill. Accordingly plaintiffs revoked the permission they had given to Watson to deliver his water into
Upon all the evidence it may be said that there is not at all times in the river sufficient water to run both mills, unless the same water can be used for both of them. Such was the condition of the river when the bill was filed, and it seems that it was in the same condition during last winter. And the right of plaintiffs to take water from the river through their race, as they and their grantors have done for many years, is not denied; so that it may be assumed that at the head of their race, and thence down to their mill, they are entitled to the use of the water as riparian owners. Defendants may have the same right at the point where they take the water from the river, and thence down to the head of plaintiffs’ race, where, upon familiar principles, they are bound to return the water to the channel of the river for plaintiffs’ use. Conceding, then, plaintiffs’ right to divert the water and use it as claimed, defendant Carter-Cotton cannot assert a right to the use of it lower down the river, and within the territory already conceded to plaintiffs. For each riparian owner has right, within his own territory, to the use of the water as it flows, returning it to the channel of the river for the use of others below; and, at the point where defendants’ mill is located, that