45 Colo. 401 | Colo. | 1909
delivered the opinion of the court:
The object of this action is to enjoin defendant from diverting the waters of South Clear Creek, a natural stream. Plaintiffs are owners of - land through which, they say, the waters of the stream have hitherto been accustomed to flow in their natural channel, until defendant, by its wrongful acts, diverted them into an artificial course. Before defendant’s rights, if any, accrued, plaintiffs’ grantor acquired by patent the lands from the United States government under the public land laws of congress, as of date July 1st, 1868, while our territorial form of government was in existence and before the formation of our state. Plaintiffs do not claim that they or their grantor ever made an appropriation of water from the stream for any purpose recognized as lawful under the laws of this state, and their complaint contains no such statement. True, that pleading recites that the waters were at one time used in placer mining; but it also states that such use has long since been abandoned, and while there is another, but defective, averment that a diversion was once made for the purpose of irrigating their agricultural lands, plaintiffs in no way connect themselves, either as appropriators or grantees of the appropriators, with either of such uses. Not only from the complaint, but from the briefs of plaintiffs’ counsel, it is entirely clear that they relied below solely upon their assumed common-law rights as ri
There is no departure therefrom in Hartman v.
At the oral argument, plaintiffs were represented by counsel whose first appearance in the cause was then entered. Doubtless perceiving that, to uphold plaintiffs ’ cause of action as made by their complaint, and as tried and submitted below, would necessitate the reversal of an unbroken line of decisions of this court from the beginning to the present time, result in "tearing up, root and branch, the statute law of the territory and of the state, and the nullification of the provisions of the constitution itself
Not only tbe name of the corporation, but certain allegations of the complaint, indicate that defendant corporation was organized for a legitimate purpose, and can lawfully acquire, by making an appropriation in its own behalf, or by purchase, a valid appropriation of the waters of a natural stream in this state, by using which, as an agency, it may produce and sell light, heat and power. The mere allegation in the complaint that defendant proposes to make use of its diversion for speculative purposes, is not a statement of fact, but a mere conclusion of the pleader, and that, too, without pleading the facts on which such conclusion is based. It is not to be taken as a proper allegation of fact showing that defendant’s object is purely speculative. The complaint should state the facts as to what particular use defendant has made, or proposes to make, of its diversion from the stream, and it is for the court to determine therefrom whether or not the use is a lawful one. It is not the province of the pleader to determine for himself, from facts not disclosed in his pleading, what is and what is not a beneficial use. For aught that appears to the contrary in the complaint, defendant has made a valid appropriation of the waters of this stream. It is therefore not a trespasser, and the doctrine of the case cited that plaintiffs, as riparian owners merely, are entitled to restrain the acts of a mere trespasser, does not apply.
Again, learned counsel says, since there are allegations in the complaint that defendant, without authority from them, entered upon their lands and thereon constructed its ditch, the complaint states a cause for relief on account of such trespass. There
We repeat, and desire to emphasize, that plaintiffs’ cause of action, as tried and submitted below, was for defendant’s appropriation from a natural stream of waters, which they claim by virtue of their riparian ownership. It would be contrary to established practice, as well as unfair to the trial court, to permit plaintiffs upon appeal thus to shift ground, and here to ask for relief upon a ground which they did not urge and upon which they did not rely below. If defendant has wrongfully taken plaintiffs’ lands for a right-of-way, they may obtain appropriate relief therefor in another action, as no such-question is here, nor below, was any such matter determined.
This judgment, being in effect that the common-law doctrine of continuous flow of a natural stream is inapplicable to- conditions in this state, and that, by necessary construction of our local customs, statutes and constitution, it is abolished, is affirmed.
Affirmed.