34 Colo. 485 | Colo. | 1905
delivered the opinion of the court.
In order to carry to its ice plant water from springs situate on defendant Baker’s land, the defendant ice company, under an agreement with its codefendant, dug a trench and therein laid a pipe which traversed the lands between the springs and the ice plant, including a strip 40' feet wide which plaintiff had theretofore acquired as a right of way for its canal. To this the plaintiff canal company objected, claiming as its own exclusive property the water of the springs by appropriation, and from long continued use, and the strip of land in fee resulting from a condemnation thereof for ditch purposes, while defendant Baker claimed exclusive ownership of the water as an essential part of his own land, and from use thereof, and an easement or right of way across the 40 foot strip for transporting'the same.
Just before the defendant ice company had finished the trench and laid the pipes plaintiff applied
There are two distinct branches of the case: First, which party owns the waters of the springs? Second, has defendant Baker an easement or right of way over the strip of land to conduct the water of the springs ?
1. As to the first question, plaintiff’s ease as made by the complaint, to which its evidence was directed, was that by appropriation and use the waters of natural springs arising upon its own lands which, in well defined natural surface channels, flow into its canal, now belong to it, as such owner,- and that defendants were wrongfully trying to divert the same to their own use. Defendants’ case, both by pleading and evidence, is that these waters did not constitute springs or natural water courses, but percolated through and by artificial means had been collected into bodies or artificial springs on defendant Baker’s own land, which, by artificial surface channels, flowed into plaintiff’s canal, and was, with his consent, used by plaintiff only when he did not choose to use the same for his own lawful purposes, which he often did.
The object for which the plaintiff company was formed is not stated in the complaint, though it appears from the record that it constructed a canal across the 40 acre tract of land then owned by defendant Baker’s grantor, and thus diverted and carried water from a natural stream (Platte river) and used it as motive power to propel the machinery of a mill. No part of the water thus taken from the river is involved in this case, but only certain water
The trial court found, in accordance with the defendants ’ claim, that these waters originally existed as percolating waters in defendant Baker’s land, and by artificial means were developed and collected by him into artificial basins in the semblance of springs, and as such therefore belonged to him as an integral part of his own land, which ownership has never been divested. It also found that, if these waters are diverted from plaintiff’s canal by defendants, it would not substantially interfere with the operation of plaintiff’s mill, as the supply from the river is, so far as the evidence shows, adequate for that purpose.
The plaintiff insists that these findings are not supported by the evidence, which, it claims, shows that these waters have, ever since its canal was dug, flowed in well defined surface channels from natural springs into its artificial waterway, and by appropriation and use thereof for many years it has acquired title thereto.
If the common law doctrine as to- ownership of percolating waters prevails, without qualification, in this state, and if the character of the waters in dispute is the sole test of the rights of the parties, then the decree for defendants must stand, because the trial court’s findings, which are binding upon us, were in favor of their contention that these are the percolating waters of their own land artificially collected thereon. Though the judgment of the trial
The controversy here is not between owners of the overlying lands the percolating waters beneath which have been intercepted or collected by one to the injury of the other; nor is it a dispute between a senior and a junior appropriator of water from a natural stream, where the senior complains of a diversion of water which, flowing in a well defined channel or by percolation reaches the common source of supply; neither is the question one between the appropriator of water from a natural stream and the owner of land constituting a part of its natural watershed who intercepts, as his own percolating waters, those which otherwise would ultimately reach the channel or supporting bed of the stream. All questions therefore as to whether the water is percolating water or water of a natural spring are immaterial. The law, under the facts, makes these waters, arising as they do on defendant Baker’s lands, whether they be artificially collected percolating waters, or the waters of a natural flowing stream or spring, his property, as against the plaintiff in this case, unless the latter, has acquired them in some way known to the law. We wish to repeat that plaintiff’s rights, if any, are not to he measured by rules which determine
The doctrine of appropriation, as understood in the arid states, may or may not under the facts of the case apply to these waters. That we need not decide; for it is clear that, according to the findings, the plaintiff has not made a valid appropriation. Certainly, it took no affirmative or positive steps with that end in view, and its passive acceptance of the waters that flowed into its canal, which was acquiesced in by the original owner, when he did not wish to use it for purposes of his own, does not constitute a valid appropriation. It is also equally clear that no right by prescription or adverse use has been established, for the findings were that whenever defendant Baker wished to use these waters for his own domestic purposes, for irrigating lands or for filling fish ponds or for sale as merchandise or otherwise, he did so under claim of ownership. We think
In order that there may be no misapprehension, as to what, is decided in this action, it is not inappropriate again to say that herein are in nowise-involved the rights of either of the three classes of claimants above mentioned. Bruening v. Dorr, 23 Colo. 195; Platte Valley I. Co. v. Buckers Co., 25 Colo. 77; Buckers I. Co. v. Farmers D. Co., 31 Colo. 62, and Wilson v. Ward, 26 Colo. 39, cited and relied on by both parties, are not in point, even if the kind of water here was material. The law of percolating waters 'was not involved in any of them. The questions were between senior and junior appropriators of waters of a natural stream which were attempted to be withdrawn directly therefrom or from springs which formed their tributaries. The law regulating ownership of percolating waters in the arid states is now of great, as time passes will be of still greater, importance, and until a proper case is presented calling for it we decline to announce the rule applicable to our local conditions. We make this observation in view of the fact that after the briefs on this appeal were in, the supreme court of California in a series of cases has considered this important question and established for that jurisdiction the rule that the right of an owner of land to use water percolating therein is the right only to a reasonable use thereof for the benefit and enjoyment of his land. To what extent, if at all, the common law doctrine of ownership of percolating water shall be modified, was held to depend upon the particular facts of the case, but in any controversy of this nature the general doctrine cujus solum might be, the court said, qualified by the maxim sic utere tuo, etc. — Katz v. Walkinshaw, 141
In these California cases the controversy was between owners of overlying lands, one of whom complained that waters naturally percolating in his own soil had been unlawfully intercepted by another owner, or between appropriators of water from a natural stream, or between them and adjacent or riparian land owners, who had intercepted percolating waters which naturally reached and formed part of the stream itself. But here, as already stated, the controversy is between an owner of water, either percolating or from springs and which comes to the surface on his lands, and the owner of an artificial waterway who claims as the direct appropriator and by adverse use thereof.
2. The second specific question for determination is whether defendants have the right to build the trench and lay the pipe line across the strip of land for the purpose of carrying water to the ice plant. This depends upon whether defendant Baker has a right of way across this strip for utilizing the tract of land across which the canal was built. The canal was dug in such a way as to leave part of the tract on either side of it, the larger part lying to the west. The slope of the land was in that general direction, and after the waters were collected into springs east of the canal they would thence naturally flow down to the land on the west were it not for the intervening artificial waterway. Defendant’s land, thus cut into two parts, could not be fully or completely utilized unless the water could be carried across this barrier. The right to do this, Baker says, was reserved to him, notwithstanding the strip of land was condemned by plaintiff for the purpose of building its ditch along the same. Baker concedes that
The petition in the condemnation proceeding says that the land sought to be taken was for a right of way for a ditch, and in its complaint here plaintiff states that in such proceedings it procured and obtained a right of way, and it's estate in this strip is thus designated more than once. Possibly it is not necessary that the rule itself should so provide, and the order here which was entered by the probate court did not purport to specify the title or interest which the petitioner sought to acquire. The language quoted is susceptible of the meaning that two sorts of estates are contemplated — one a fee, the other a mere right of way or easement. It is also susceptible of the meaning that the kind of fee contemplated is not a technical fee; or, by reason of the words following the word “fee,” merely an estate or interest which gives to the party seeking to condemn the exclusive right .or possession of the strip sought to be held during its continuance as a corporation, only for the purposes of constructing and operating a ditch; if so, an easement or mere right of way would satisfy that purpose. Considering the statute, then, as we should, as passing only such estate or interest as is reasonably necessary to accomplish the purpose in view, and bearing in mind that the petitioner asked only for a right of way, and taking the construction which, in its complaint, the plaintiff itself has made of its own right, we are of opinion that merely a right of way or easement was acquired, and such we hold is the extent of plaintiff’s interest in this strip.
Such being plaintiff’s interest or estate in this strip, we think that, according to the weight of authority, the owner of the land across which the ditch was built — who, as against the owner of the easement, is permitted to put his property to any lawful use for which it is adapted — has, to its complete enjoyment, a right of way across this condemned parcel. This right of Baker, as the owner of land on both sides of the canal, is not incompatible and must not interfere with the superior easement or use of plaintiff. It must be in strict subordination to it. The testimony in this case shows without any serious contradiction that the trench was so built and the pipe laid that it would interfere, in some degree at least, with the superior right of plaintiff to carry water through its canal. It may possibly be true that the interference was so slight and inconsequential that plaintiff might have been relegated to its remedy at law, but since jurisdiction in equity was properly invoked at least upon one branch of the case, the trial court should have retained jurisdiction to settle all the rights of the parties in one action, and it ought not to require the plaintiff to bring another to have determined the relative rights of the parties in and to this strip of land.
Remanded.
Chief Justice Gabbert and Mr. Justice Steele concur.