47 Colo. 534 | Colo. | 1910
delivered the -opinion of the court:
That the right, in an owner of a water priority for irrigation, to change the point of diversion is not absolute is well settled. It is a qualified right, and its exercise is conditional upon the fact that such change will not injuriously affect the vested rights of others. Such has been the uniform holding of this court through an unbroken line of decisions, beginning with Fuller v. Swan River Co., reported in 12 Colo, at page 12, and Strickler v. Colorado Springs, reported in 16 Colo, at page 61, down to the present
It seems manifest, if the Clark & Wade priorities are diverted through the Turner ditch and the Beaver Dam ditch, as proposed, and used constantly during the irrigating season, as the court found they would be, and as petitioners admit is intended, that, after the season of low water in each year sets in, no water will remain in the stream for the use of any junior appropriator for any purpose, but on the contrary the stream will become dry. In the face of the showing that, for from fifteen to twenty years prior to the commencement of these proceedings, all junior appropriators of water on the stream have practically, at all times, been able to grow and mature crops, the result above suggested, which the proof shows is likely to occur, clearly establishes that such proposed change in the point of diversion would alter the con
The testimony shows that Minnesota Creek is a small stream; also that the loss by seepage and evaporation is large. In the past the entire flow of this stream, including the Clark & Wade priorities, has been allowed to go down past the headgate of the Clark & Wade ditch, as originally located, the full flow of the stream thus bearing a proportionate part of such loss. The Clark & Wade priorities constitute the major part of the flow thereof, even during that part of the irrigation season when the volume of water is most abundant. The bed of the stream is broad, composed of sand and gravel, obstructed by rocks and a heavy growth of vegetation, requiring a flow of eight or nine second cubic feet of water, according to the testimony, to simply cover it. The flow, at the season of the year when all appropriators are able to secure some water, is, as the testimony shows, approximately from twelve to fourteen second cubic feet. If this be diminished by the withdrawal from the stream of the entire Clark & Wade priorities, amounting to nearly nine second cubic feet, the balance of water in the stream is left to bear the entire loss by evaporation and seepage, which proportionately, because of the diminished volume, would necessarily be greatly increased; the rapidity of the flow is also naturally decreased by the diminution in volume. Under such facts the injurious effects to junior appropriators are too obvious to need elaboration or require discussion. When the flow of the stream is at so low a point that the diversion of the Clark & Wade priorities at the new point would leave it dry, then the disastrous effect upon junior appropriators is still more apparent.
Sec. 2 of the Laws of 1903, under the provisions of which petitioners seek to make the proposed change, is as follows:
“The court shall require proof that all parties who may be affected by the change have been duly notified in the proceeding, as in the case of an original adjudication, and shall hear evidence to deter*541 mine whether sneh change will injuriously affect the vested rights of others in and to the use of water, and a decree shall be entered permitting the change as prayed for, unless it appear that such change will injuriously affect'the vested rights of others; and if such injury appear, the court shall decree the change only upon such terms and conditions as may be necessary to prevent such injurious effect, or to protect the parties affected or if impossible so to do. may deny said application. ”
A review of the record satisfies us, as the trial court must have been satisfied, that the petitioners failed to establish that no injury to protestants from the proposed change would result. It further appears, when the court was about to deny this application in toto, that the attorneys of the petitioners suggested it as a duty, under the above provision,- for the court to- allow the change on terms, whereupon the judgment appealed from, allowing a change of four second cubic feet, was announced. This seems a fair composition of the matters in dispute, and we are not disposed to disturb it.
This court has often said, in substance, that a junior appropriator of water to a beneficial use has a vested right, as against his senior, in a continuation of the conditions on the stream as they existed at the time he made his appropriation. If this means anything, it is that when the junior appropriator makes his appropriation he acquires a vested right in the conditions then prevailing upon the stream, and surrounding the general method of use of water therefrom. He has a right to assume that these are fixed conditions and will so remain, at least without substantial change, unless it appears that a proposed. change will not work harm to his vested rights. This law is peculiarly applicable to the facts here, and applied to them makes it certain that the judgment
Affirmed.