Means v. Stow, No. 4340

No. 4340 | Colo. | Apr 15, 1903

Mr. Justice Steele

delivered the opinion of the court.

In a proceeding begun for the purpose of procuring an adjudication of priorities of right to the use of water for irrigation in water district No. 26, in Saguache county, statements of claim were filed by the appellees for an enlargement of certain ditches in said water district. The claim was that the said ditches were constructed for the purpose of taking the place' of irrigation by overflow from Saguache creek, which overflow had become depreciated by reason of natural causes near the headwaters and along said stream.

A referee took the testimony and made findings of fact, which were approved by- the court, and a decree was entered awarding priorities to certain ditches owned and operated by the appellee. Exceptions were taken to the report of the referee, which were overruled. The decree was rendered June 15, 1900, and an appeal was taken from the judgment to this court.

The decree, it is alleged, is not supported by the evidence. The appellee contending that, “the evidence clearly shows that the appellees were enjoying the same and equal rights at the time that they had at all prior times; that the evidence clearly shows that they only had certain waste water that was taken from said Saguache creek by. means of ditches belonging to others, and the said claimant could acquire no right by such use of water. ’ ’ The claimants claim the right to water under sec.- 2268, Mills’ Anno.tated Statutes, which, in substance, provides that all persons who shall have enjoyed the use of water for the irrigation of meadow land by the natural overflow of a stream, shall, in case of the diminishing of water supplied by such stream, for any cause, prevent such irrigation therefrom in as ample a manner as formerly, have right to construct a ditch for the irrigation of such meadow, and to take water from such stream therefor. Blit we cannot pass upon the questions presented, for the reason that no exception was taken by bill to the decree, and because the transcript does not contain a bill of exceptions, nor is there any certificate under the hand and seal of the judge that the transcript contains all the evidence. The transcript is in practically the same condition as that in the case of Means v. Gotthelf, decided at last term of court, ante, p. 168.

For the reasons assigned, the appeal must be dismissed. Appeal dismissed.