18 Colo. 142 | Colo. | 1892
delivered the opinion of the court.
St. Yrain creek takes its rise on the eastern slope of the Rocky mountains near the summit of the continental divide. Thus it has a good supply of water from the regions of perpetual snow. The general course of the stream is eastward through the' mountainous regions of Boulder county, and thence across the plains, until it becomes a tributary of the South Platte river.
Left Hand creek is a tributary of the St. Vrain from the south; its general course is, also, eastward, until it forms a junction with the former stream some miles out upon the plains.
. James creek, a still smaller stream, takes its rise between the St. Yrain and Left Hand creek, and makes a junction with the latter stream before it emerges from the foothills. Neither Left Hand creek nor James creek has as good natural water supply as the St. Yrain, their sources, respectively,
Early in the ’sixties certain settlers upon the plains, along the valley of Left Hand creek, made appropriations of water from said stream for the irrigation of the lands occupied by them respectively; but as there was not enough water in the natural stream to supply their wants, they undertook to increase the supply by artificial means. At a certain point in the mountains, James creek and the south fork of the St. Vrain are but a short distance apart. Taking, advantage of this proximity of the two streams, a channel or ditch was cut through the narrow strip of land separating them. Thus water from the St. Vrain was carried into James creek, thence down the channel of the James to Left Hand creek, thence down Left Hand creek and out upon the plains to supply the settlers with water for irrigation.
The artificial channel thus uniting the St. Vrain with James creek was first constructed in 1863, and since that time said channel, including the natural channels of the James and the Left Hand below the junction, has been called the Left Hand ditch. This will not appear so strange when it is understood that the volume of water flowing in the channel of Left Hand creek was more than doubled by the original construction of the artificial channel, and that by an enlargement thereof in 1870 the stream was increased to about ten times its original size.
It appears that George F. Oppenlander first settled upon the land about 1860, and by means of certain small ditches appropriated water from Left Hand creek for the irrigation of a few acres during the years 1861, ’62 and ’63. Oppenlander also assisted in constructing Left Hand ditch in 1863, whereby the volume of water was increased as above stated, but he never acquired the government title to the land. He testified that he sold and turned over the place in 1863 to one Frederick Baun, his brother-in-law, by verbal agreement, explaining to his successor how the water irrigated the land. Baun continued thereafter to occupy and irrigate the land, and subsequently obtained the government patent for it.
In 1871 Baun conveyed the laud by warranty deed to one Stockdorf, and on the same day Stockdorf by similar deeds conveyed an undivided half thereof to Baun’s wife and the remaining half to Baun’s children, Mary, Ida, Emma and Julia, plaintiffs herein. Not long after this, Mrs. Baun having died, Mr. Baun in 1874 undertook to convey his interest in his deceased wife’s estate to his said children. Baun, however, continued in possession and control of the land until shortly before the commencement of this action. In the meantime, the land having been sold for taxes, the plaintiff Oppenlander purchased the tax certificates and holds them, as he testified, for the benefit and protection of his nieces and coplaintiffs herein.
Oppenlander also in March, 1889, purchased at sheriff’s sale all the right, title and interest of Baun in said premises. The plaintiff Goyn claims no interest in the land except as the lessee in possession under Oppenlander since April, 1889. The complaint alleges that Oppenlander in his lease to Goyn agreed, among other things, to furnish water sufficient to irrigate said farm, if within his power.
The evidence shows that the Left Hand Ditch Company distributed water to its -stockholders in proportion to the number of shares owned by them respectively; and there is nothing in this record indicating that such mode of distribution in any way conflicts with the “ better right ” of prior appropriators. See Combs v. Agricultural Ditch Co., 17 Colo. 146.
In the course of time shares of stock in the Left Hand Ditch Company became very valuable. Baun assigned one of his shares in 1883, and the other in 1885, as collateral to secure certain loans. Failing to pay these loans, the shares were afterwards, and before the commencement of this action, sold for nearly $1,600 in the aggregate, and passed into the hands of third parties. Thereupon the ditch company shut off the supply of water to plaintiffs.
The St. Vrain and its tributaries “except the Boulder, its tributaries, and Coal creek,” constitute Irrigation District, No. 5. See Session Laws 1879, p. 98.
It appears that in November, 1882, decrees were rendered
In respect to this claim it may be said that decrees rendered under the acts of 1879 and 1881, determining the priorities and the amount of the appropriations of the several ditches in an irrigation district, are not intended to designate the person or persons entitled to. the use of the water thus appropriated. Such a decree is not res judicata as to the party or parties entitled to the control of a particular ditch or to the use of water conveyed through the same, but only as to the priority and amount of appropriation of such ditch.
Furthermore, it appears without contradiction that for a period of more than twenty years from and after the construction of the Left Hand ditch, while it was owned and controlled by individuals as well as after it passed into the hands of an incorporated company, Oppenlander and Baun successively claimed and enjoyed the right to the use of water by and through the Left Hand ditch, and asserted no claim as original appropriators from Left Hand creek. Such was their attitude after the rendering of the decrees in 1882 as well as before, and so continued until about the time of the bringing of this action in 1889. It must be held, there
• At common law the riparian owner is vested with certain .rights in the water of a natural stream flowing through his land, and such rights pass by a conveyance of the land to his grantee, unless specially reserved. It is seriously claimed that this familiar.principle of the common law in reference to natural streams applies also to artificial streams designed for purposes of irrigation.
Let us see what legal basis there is for such claim. Upon examination we find few points of analogy and many points of difference between water rights at common law and water rights under the constitution of this state. For illustration, note the following:
1 At common law the water of a natural stream is an incident of the soil through which it flows ; under the constitution the unappropriated water of every natural stream is the property of the public. At common law the riparian owner is, for certain purposes, entitled to the exclusive use of the water as it flows through his land; under the constitution the use of the water is dedicated to the people of the state subject to appropriation. ^ The riparian owner’s right to the use of water does not depend upon user and is not forfeited by nonuser; the appropriator has no superior right or privilege in respect to the use of water on the ground that he is a riparian owner; his right of use depends solely upon appropriation and user; and he may forfeit such right by abandonment or by non user for such length of time as that abandonment may be implied. ^ A riparian propriétor own
Thus it appeal’s that the constitution has, to a large extent, obliterated the common law doctrine of riparian rights and substituted in lieu thereof the doctrine of appropriation. Sieber v. Frink, 7 Colo. 148; Fuller v. The Swan River Mining Co., 12 Colo. 12; Strickler v. Colo. Springs, 16 Colo. 61; Combs v. Agricultural Ditch Co., 17 Colo. 146. See, also, opinions in Farmers’ High Line Co. v. Southworth, 13 Colo. 111, and cases there cited.
In Yonkers v. Nichols, 1 Colo. 551, it was held that the right to convey water over the land of another for purposes of irrigation may be conferred by verbal agreement, notwithstanding such right was, at common law, an interest in real estate, and so subject to the statute of frauds. In Burnham v. Freeman, 11 Colo. 606, it is said of a private irrigating ditch belonging to individuals, and not to an incorporated company, that “ The law recognizes but two ways of acquiring, by purchase, an ownership interest in such a ditch. One is by deed or prescription, which presupposes a grant, and the other is by condemnation. An interest in such a ditch is an interest in realty. It cannot pass by a mere verbal sale.” These two cases may, perhaps, be reconciled or distinguished. It is claimed that the later case is decisive of the present controversy. But we do not rest the decision of this case- upon the ground that the right to the use of water in this state for irrigation may not, under some circumstances, be acquired by parol, nor upon the ground that such right may not pass to the grantee of land under certain circumstances without special words in the deed conveying the land, or other deed for that purpose.
In the present case it is clear that appellants have never acquired a valid title to the water rights in controversy. Not even a verbal agreement therefor is established by the evidence. Such water rights did not pass to appellants as an appurtenance to the land by virtue of their several deeds of conveyance. Even if such rights could under some circumstances be considered appurtenances to the land, the evidence in this case clearly shows that Frederick Baun, as the original owner, had severed such rights long before the inception of appellants’ title.
In the first place, all the water rights acquired by Oppenlander and Baun as original appropriators from Left Hand creek, as a natural stream, were by their own voluntary con
■ In the next place,.Baun’s rights to water from Left Hand ditch were dependent upon, and evidenced by, his two. shares of stock. These he could legally transfer only by assignment on the books of the corporation. While Baun caused the land to be conveyed to his wife and children, he did not convey the stock, nor does it appear that he entered into' any contract or received any consideration for the conveyance of the stock. On the contrary, he retained the stock and continued to act as a stockholder of the company in his own name.
It is true, Baun used the stock as a means of procuring water for the benefit of the land which had been conveyed to his children; but he continued to occup3r the land for his own benefit, while he pledged the stock as collateral security and thereby lost it. With the loss of the stock he lost all title to the water rights dependent thereon, so that neither he nor his grantees of the land can have any water rights by means of such stock. Whether the purchasers of such stock are so situated that they are entitled to receive and apply the water represented by such stock to beneficial use, is a question not involved in this litigation. See Combs v. Agricultural Ditch Co., supra.
Water rights acquired by appropriation for purposes of irrigation in this state cannot be held to be inseparably annexed to the land in connection with which such rights were acquired. Even though under certain circumstances such rights may be considered appurtenant to the land — a point we do not decide — they may undoubtedly be severed from the land; and may be sold and conveyed separate and apart therefrom; and where such severance, sale and conveyance have taken place, as by the assignment and sale of stock representing water rights in an incorporated ditch company, a subsequent sale and conveyance of the land does not pass the title to such water rights.
The Montana cases cited by appellants’ counsel are readily
The judgment of the district court must be affirmed.
Affirmed.