55 Colo. 386 | Colo. | 1913
delivered tire opinion of the court:
By a decree adjudicating water priorities for irrigation purposes, of date November 17th, 1891, in the district court of Costilla County, certain ditches were awarded priorities for the use of water in water district No. 20, taking water from the Bio Grande river. Among them was one to the Alamosa Town Ditch for 12.8 cubic feet per second of time of date September 30th, 1882.
On the 7th of October, 1909, the plaintiffs, appellants here, all of whom had been decreed junior priorities to the Alamosa Town Ditch out of the river, filed complaint in the district court of Costilla County, by which they sought to obtain a decree declaring an abandonment of the water right decreed to the Alamosa Town1 Ditch, and to enjoin the water commissioners from delivering water thereunder. The defendant, appellee here, the San Luis Valley Irrigated Land Company, filed answer admitting most of the averments of the complaint, however putting in issue the alleged abandonment of the right. All other defendants joined in disclaiming any interest in the water right under consideration. The case was tried to the court upon the complaint, as amended, and the answer of the defendant, the San Luis Valley Irrigated Land Company. The trial resulted in a dismissal of the complaint, to review which judgment the plaintiffs bring the case here on appeal.
The record discloses the following practically undisputed facts. The Alamosa Town Ditch tabes its water
The foregoing are the main facts upon which the plaintiffs rely to establish abandonment by the town of the water right in question. The only matter offered in evidence to overcome the effect of these facts, on the part of the defendants, is evidence of so-called loans of water made by the officers of the toym to owners of various other ditches from time to time during the intervening years. So it appears that the sole question for determination is whether the town has in fact abandoned this decreed water right. The finding of the court, upon which the judgment of dismissal of the action is based, is as follows:
"In this case it is asked that the court declare that the appropriation of water decreed to the Alamosa Town Ditch has been abandoned; under the evidence it appears that that ditch has not been-in use for many years; yet, it further appears, from the evidence, that the owner of the water right decreed to that ditch has been loaning the water, or allowing it to be carried through other ditches and canals for use in irrigation a number of years, and thus indicating that there was no intention of abandonment of the water right, though the ditch itself seems to have been abandoned. The court is of the opinion that the water right was not abandoned and that it was not the intention to abandon it. Therefore, the court finds the issues for the defendants,”
It becomes necessary, therefore, to consider the nature and character of these alleged water loans, and to determine by whom they in fact were made. An examination of the record fails to disclose a syllable of testimony showing that they were ever authorized by the town acting through its proper authorities; On the contrary, the evidence shows that the loans were made by individual officers, alderman, water commissioner, and the like, for which acts the town was in no manner responsible, and from which certainly it cannot lawfully claim a benefit of any sort. The use of the water under these circumstances can in no proper or legitimate sense be held to be a use under loan of the priority decreed to the Alamosa Town Ditch. Under such conditions, in our view of the matter, the so-called loans are wholly without legal effect or bearing upon the question of abandonment. The acts of loaning- were the acts of mere strangers, not' the acts of the town at all, and it is clear that the unauthorized acts of outsiders cannot be relied upon to establish the fact of non-abandonment by the town.
. It follows, therefore, that the finding of the trial court, that because of these loans there had been no abandonment, and these facts were the only ones upon which the dismissal of the action was based, is without legal support or warrant, and cannot be upheld.
The facts which convince this court that there was a clear, intention to abandon this water right are: First. There was a practical non-user by the town for more than twenty years; Second. There was never any use of this right by the town from the date of the decree awarding the priority to it; Third. The town had obtained and installed an absolutely new and different source of water
Upon the uncontroverted facts, therefore, we are irresistibly impelled to the conclusion that the town, when it made its quit-claim deed to the water right in question, had abandoned it, had nothing whatever to convey, and that its grantee took nothing by such conveyance.
The judgment is reversed and the cause remanded, with instructions to the trial court to enter a perpetual injunction against the defendant herein, as prayed in the complaint.
Reversed and remanded.
Chief Justice Musser and Mr. Justice White concur.