43 Colo. 184 | Colo. | 1908
delivered the opinion of the court:
Surface creek and Milk creek are natural streams in Delta county, the latter being a tributary of the former. The Alfalfa ditch, having its head-gate in Surface creek about four miles below the mouth of Milk creek, has the first priority to take water for irrigation therefrom. In the latter part of thé irrigating season the combined waters of the principal and tributary streams are insufficient to supply that priority. The natural flow of Milk creek then becomes so far reduced that there is no surface flow in its channel where it empties into Surface creek and for some distance above, but farther up the stream there is' always some water visible, the quantity varying from one-half of one cubic foot to one and one-half cubic feet per second of time.
After the owner of the Alfalfa ditch had perfected its appropriation, the plaintiff, Mrs. Petterson, built an irrigating ditch called the Cross ditch, which taps Milk creek several miles above its junction with Surface creek, and through this ditch she proposed to convey water across the intervening divide and into Surface creek, and run the same down that stream with the other waters therein for a distance of about seven miles and then take it out through the Bruner ditch, whose point of intake is on Surface creek about three and a half miles below the junction of the two streams, but above the head-gate of the Alfalfa ditch, and thus convey the water to her lands.
The case is not one where an appropriator seeks to divert from a natural stream a quantity of water
Manifestly the burden of establishing such a case rests upon the plaintiff, and her proof should be satisfactory. The trial court found against plaintiff, and her assignment is that prejudicial error was committed in that a heavier burden was put upon her than the law authorizes. In the course of its opinion, or findings of fact, the court remarked that a party who makes such a claim should conclusively prove it; whereas, plaintiff says, she is required to prove her case only by a preponderance of the evidence. Whether the degree of proof indicated by the observation referred to is, or is not, essential in this sort of case, is not properly before us, as the trial court immediately proceeded to say that the preponderance of the evidence was against plaintiff. No possible harm, therefore, was done to her, even on her own theory.
The testimony in the case was conflicting. If we take that of plaintiff’s witnesses alone, eliminating their conclusions and opinions, it is doubtful if there is enough definite or satisfactory evidence upon which to base a finding in her favor. The presumption is that the water of a tributary of a stream, less the evaporation, if not interfered with, will naturally reach the main stream either by surface or subter
So here, when the plaintiff, by means of the Cross ditch, diverted waters of Milk creek, a tributary of Surface creek, to which, if the waters of the tributary reach the main stream, the defendant had prior right, it was incumbent upon plaintiff to show that none of the waters thus diverted, if permitted naturally to flow down the natural channel of the streams, would reach the headgate of the defendant’s ditch.
Water should be conserved as much as possible in the arid region, so as to get the greatest amount of benefit that can he derived from it; yet, where one appropriator thus enters upon a stream and diverts water from it to which rights of others have already attached, it is incumbent upon him to show that his proposed diversion will not injuriously affect the prior vested rights.
Chibe Justice Steele and Mr. Justice Gabbert