8 Colo. App. 499 | Colo. Ct. App. | 1896
delivered the opinion of the court.
The substantial controversy between the parties to this action is not presented by this record in such way that the court is at liberty to express its views respecting their legal status as it existed before this suit was begun. This took the form of condemnation proceedings to obtain title to a
Out of this grows the only question which is of sufficient consequence to disturb the judgment if it was resolved in favor of the appellant. It may be true the appellant is right in his contention that the reservoir could exist and all of
The court, then, did not err in refusing to permit the respondent to introduce this testimony, or prove any other injury save that which came from the appropriation of land of a proved value, with the resulting damage, if any, to the balance of the tract belonging to Siedler.
A great multitude of errors were assigned on the rulings of the court admitting and rejecting testimony. It would be quite impossible in the limits of any ordinary opinion to pass upon each one of these questions and sustain the court’s action by a direct expression supported by sufficient argument. The only thing we feel called upon to say is, the court tried the case on the proper theory and on the correct lines. In a proceeding to condemn land covered by water where there is no question respecting the title to the water itself other than that which comes from the ownership of the land beneath, there is no recoverable damage other than the value of the land taken and the resulting damage to the balance of what may be owned by the respondent. All waters in this state are now subject to appropriation, whether they be running waters, or waters coming from springs or derived from seepage. The appellee, so far as the record shows,
The only other matter to which we need refer is what is recited in the bill of exceptions, that at the time of the argument to the jury, counsel attempted to argue a question of damage and was restrained by the court. This action does not seem to constitute error, nor is there anything in the record wherefrom we can determine that prejudice came to the appellant. From the statement in the bill of exceptions the elements of damage which counsel was restrained from discussing were those predicated upon the loss of the right to use the water and the surface of it for purposes other than irrigation, whereby the collateral advantages referred to might be enjoyed by Siedler. We must assume this to be true, because in the court’s instructions the jury were told that the respondent was entitled to recover not only the actual value of the land taken, but also whatever damage might have been proven to accrue to the .other portions of his farm by the taking of this particular piece. The instructions were not objected to ; they fairly stated the law; put the correct and only issues before the jury for consideration, and, whatever this ruling may have been, it could not so far as we see have been erroneous.
This disposes of all matters raised by the record, and since the court committed no errors in the trial of the case, the judgment must be affirmed.
Affirmed.