58 Colo. 516 | Colo. | 1915
delivered the opinion of the court:
1. This is an appeal by C. M. Snyder, from a final general adjudication decree rendered by the district court of Summit county in Water District No. 36, in a proceeding under the statute to settle the priority of water rights on Swan river, acquired by appropriation and use for beneficial purposes other than irrigation. The court entered a decree finding the Gralena ditch, No. 6, according to the date of construction (The Colorado Cold Dredging Company, appellee, claimant) was entitled to priorities Nos. 5 and 30 for hydraulic placer purposes; that under priority No. 5 by construction, it was entitled to 15.63 cubic feet per second, to date from June 1, 1863,
2. In 1863 the Galena ditcb was originally constructed in part, if not wholly, over tbe government domain, and across territory subsequently patented to E. T. Wells as the Mascot placer. In 1892 Wells made entry of tbe Mascot placer location, crossed then by tbe ditcb, which was patented to him June 17, 1897. In September, 1898, tbe parties claiming to own tbe ditcb and tbe right to use tbe water, enlarged it to carry what was decreed as priority No. 30 for 44.37 cubic feet. In doing so, they enlarged tbe ditcb across tbe Mascot placer without tbe knowledge, consent or acquiescence of tbe owner of tbe premises, whom it appears has never been compensated for the extra right of way required or taken for tbe enlargement of tbe ditcb across bis placer location. In this adjudication proceeding it is claimed that ’ because the enlargement across tbe placer was a trespass, no priority of appropriation was acquired thereby and that tbe court erred in decreeing to tbe ditch" any appropriation on account of this enlargement. It is also urged that tbe claimant of tbe Galena ditcb in tbe adjudication proceeding did not own tbe ditcb or tbe water right, and that tbe appropriations awarded to it are excessive. Tbe assignments of error are: 1st. That tbe Galena ditcb ought to have been awarded an appropriation of only 4 second feet in respect of original construction and no amount in respect of enlargement, and ought' to have been awarde,d no priority at all as against tbe Swan River ditcb; 2nd. That tbe original Galena ditcb
. 3. The purpose of a statutory adjudication proceeding is to settle the volume or amount of water entitled to be diverted by, and the relative priorities of the ditches on the natural stream. The court in its inquiry is confined to this purpose and is without jurisdiction to hear or determine other matters. In the proceeding no evidence should have been received or considered relative to the enlargement being a trespass upon the placer location. The title to the canal, its right of way, or whether it owns its right of way, of how it may have acquired it, are matters that cannot be gone into or determined in a statutory adjudication proceeding.—Haines v. Fearnley, 56 Colo. 243, 138 Pac. 544, and cases there cited.
4. Claim is also made that the original Galena ditch and water right were abandoned, and that appellee should have been awarded no right by virtue of original construction; also that the amount awarded the ditch upon each priority is excessive. The testimony as to these matters was conflicting. We have gone carefully over the record and find sufficient evidence to amply sustain the decree.
Judgment affirmed.
Affirmed.
Decision en banc.