51 Colo. 545 | Colo. | 1911
delivered the opinion of the court:
This case involves the same general subject and object of litigation as Johnson v. Sterling Co., 49 Colo. 482; namely, to settle the relative priorities and amounts of appropriations of ditches in different water districts of the South Platte, river. District 1, comprises that portion of the stream from the mouth of the Cache la Poudre_ river, to the west boundary of Washington county; district 64, the remainder of the stream from the west line of Washington county to the east line of the state. The priorities of all the ditches in these two water districts were settled by statutory decrees, and each district had its own independent adjudication decree long before the bringing of this suit. Logan county was settled prior to Morgan, and the ditches in district 64, for convenience called the Sterling ditches, generally speaking, are senior in priority to the ditches in district 1, for convenience
The canal was originally called the Buffalo ditch. The Buffalo Townsite Company constructed it about a mile and a half or two miles from the river, to the old1 grade of The Colorado Central Railway Company. The original plan, which was abandoned, was ■to build a ditch about fifteen miles long, to irrigate some 5,000 acres. Commencing June 22, 1882, the ditch was built or enlarged, and extended about 25 miles, by The Pawnee Ditch and Improvement Company, which constructed it in part along, over and through the ditch, route and right of way of the Buffalo ditch, to cover some 30,000 ácres of land, and named the Pawnee ditch.
In 1873 or ’74, four settlers each made entry to 160 ácres of. government land, at or near the end of the Buffalo ditch, and constructed extensions or laterals from it to irrigate their tracts. The water was beneficially applied on no other lands; these were all the lands they owned under the ditch; and they were all the land owners and users of water from the canal until after the construction of the Pawnee ditch, June 22, 1882. This beneficial use of the water by them upon these four places from 1874 to 1882, is, or should be the basis of the first appropriation of 47 cubic feet per second; and the construction of the Pawnee ditch in 1882, and the subsequent use of the . water down to the time the ditch was turned over to plaintiff, is, or should be the basis of the second appropriation of 150 second feet.
Up to 1882, these settlers had not cultivated and irrigated the whole of their tracts. Defendants contend the highest aggregate number of acres irrigated by them any year during this time, should be the basis of the first appropriation of the ditch. This undoubtedly should be considered, but it does not de
In this case, each settler could beneficially use such an amount of water that when the right ripened, he would have sufficient to irrigate all his land. He could build his ditch, or buy his water right in anticipation of this amount, and it would' be a beneficial use of the water to apply it on any portion of the land needing it. The test is not necessarily the number of acres irrigated each year. If these tracts were farmed, and all the water necessary to irrigate them was beneficially used with reasonable diligence in the improvement of the land, it is sufficient. What was a sufficient amount of water, and was it applied to a beneficial use, is the test.
The owners of the Pawnee ditch sold eighty acre water rights of 1.44 cubic feet per second, for the irrigation of the land under the ditch, and the water was accordingly divided among the consumers on that basis and applied to the lands. It is the basis of the second appropriation. Its sufficiency is not questioned. If 1.44 cubic feet per second is sufficient to irrigate 30 acres under the Pawnee ditch, it is some evidence of the amount needed for the irrigation of these lands. This is the basis upon which water rights were procured for, and applied to the land under the ditches generally, in northern Colorado, and subsequent use
The court apparently based the first appropriation upon the amount of water carried through the canal, and not the amount necessary for the irrigation of the land, applied to a beneficial use. The complaint, on thp same line, ingenuously alleges that the ditch was originally constructed twelve feet wide on the bottom, with a capacity of 10Ó cubic feet per second, and capable of irrigating 5,000 acres of land. Admitting all this, the ditch might not be entitled to any decree. We have endeavored to show these settlers could not make a beneficial use of more water on the tracts than was necessary for their irrigation. It is immaterial whether the Buffalo ditch was ten, twelve, or fifteen feet wide on .the bottom, or whether it was capable of irrigating 5,000 acres of land and was filled to its capacity. Anyone familiar with irrigation, knows that 47 cubic feet of water per second is not necessary for the irrigation of 640 acres of land. That amount, therefore, was not beneficially applied thereto.
There is evidence that the loss in distribution from seepage and evaporation will be of no consequence, while some of the witnesses put it as high as twenty-five per cent. Allowing the ditch 11.52 cubic feet per secondi, as the necessary amount, beneficially used, for the irrigation of the land, and adding-to this, twenty-five per cent for the loss in carriage, the first appropriation of the ditch should be 14.40 instead of 47 cubic feet per second.
2. The second appropriation is based on the use made by holders of eighty acre water rights, from 1882 until the ditch was taken over by the plaintiff in 1898. During this time the ditch was operated by the owners, who sold and distributed the water in rights of 1.44 ' cubic feet per second for the irrigation of an eighty acre tract. During the time mentioned, only 70 of