86 F. 41 | U.S. Circuit Court for the District of Colorado | 1898
Complainant is the owner ot seven placer-mining claims on the north fork of the San Miguel river, in the county of San Miguel, called “Boston,” “Keystone,” “Keystone Extension,” “Washington,” “Colorado,” “Pekin,” and “San Miguel.” All of the claims are traversed by the river, excepting the Keystone Extension, to which water from the river is conducted by means of a flume. The several claims were located prior to the year 1882, and patents were issued in that year to complainant’s grantors. Some of tiie claims were worked as placers, and the waters of- the river were used for that purpose prior to the year 1889. In that year the waters of the river were diverted near the east end of the Keystone placer for the purpose of hydraulic mining upon several of the claims, and work was carried on extensively in the years 1889 to 1892. From 1892 to 1897 but little was done in the way of mining, but there was always an agent in, charge, and some effort was made to keep up the flume, and to use water therefrom at different times. The testimony as to what was done upon the property in those years is highly conflicting, and leads to the result that complainant and his grantors were in actual possession, and that work was not done with a view io profit or development. In the month of August, 1897, respondents localed the Yukon placer in the valley of the San Miguel river, at a point: somewhat south of the Pekin placer, owned by complainant. The south fork of the river unites with the north fork on the Pekin placer. The Yukon placer may touch the south fork of the river, but it does not extend to the united streams, or to the north fork, which traverses the Pekin placer from end to end. Afterwards, and in
Respondents rely very much on section 6, art. 16, of the constitution of the state of Colorado, which declares: “The right to divert unappropriated waters of any natural stream for beneficial uses shall never be denied.” Tills language, it will he observed, is applicable to (he unappropriated waiters of a natural stream. If. as we assume, the location of complainant’s placer claims on the Han Miguel river was an appropriation of the waters of that river so far as it runs through the several claims, this section cannot control the question under consideration. The waters were appropriated when the claims were located, and the owner of the claims is entitled to have them ut currere solehat, without diminution, subject to the reasonable use of other riparian owners higher up on the course of the stream. No question arises under tin1 last clause of section 6 of the constitution of the state, cited above, because complainant and respondents are each of the manufacturing class, within the meaning of that section. Counsel for respondents suggested in argument that electric lights were to be classed as a domesl ic use, hut he was unable to say much in support of that conslruction. Clearly enough, the business of making electric lights and power is a sort’of manufacture, and of the same class as mining, or oilier use of water power. Therefore the parties are upon an equal footing in respect to the use which they intend to make of the waters of the San Miguel river. In this connection it may be observed that washing gravel by hydrostatic press
Many authorities cited by counsel expound the law relating to the irrigation of agricultural. lands in arid regions. An early advocate of the right to appropriate water for irrigating lands, as always understood and maintained in this state, the author of this opinion desires to recognize and enforce the principle on which it stands in every case to which it may be applicable. It is believed that the chief purpose of article 16 of the constitution of the state of Colorado is to maintain and establish the wise principle of appropriation and continual use, which was fully understood by the makers of that instrument. But nothing in the constitution of the state or in the law relating to irrigation in any way modifies or changes the rules of the common law in respect to the diversion of streams for manufacturing, mining, or mechanical purposes. In Colorado, as elsewhere in the United States* the law is now, as it has been at all times, that for such purposes each riparian owner may use the waters of running streams on his own premises, allowing such waters to go down to subjacent owners in their natural channel. The injunction will be allowed according to the prayer of the bill.