No. 5715 | Colo. | Feb 7, 1910
delivered tlie opinion of the . court:
This action by The Hoffman Milling Company, a Colorado corporation, appellee, as plaintiff, against
The complaint also shows that another milling company had, by means of the Mason & Hottel millrace, so called, theretofore made an appropriation, to the extent of sixty cubic feet of water per second, also for power purposes, from the same stream, above the city of Fort Collins, and had diverted water to operate its mills from 1868 to 1894, when the plaintiff company commenced the construction of its mill and mill-race; that the water diverted through the Mason & Hottel mill-race was returned to the river by a tail-race at a point above the location of the headgate of the Hoffman mill-race; that by reason of the return of this water to the river from the upper mill to the lower mill the plaintiff, as owner of the lower mill-race, claims the right to take the water from the tail-race of the upper mill for its use to the exclusion of all other appropriators of this water, above the tail-race of the old mill, without regard to the date of appropriation above the tail-race. And further that The Windsor Reservoir and Canal Company, being the owner of a reservoir for the storage of water for irrigation and agricultural purposes, with a decreed right as of date prior to July, 1890, had diverted and sought to divert water from the Cache la Poudre river at a point above said
The answer of The Winds.or Reservoir and Canal Company alleges that it had made an appropriation of water for filling its reservoir as of date July 8, 1890, and that from and after that date it had diverted water for such purpose from the Cache la Poudre river, whenever the same could be obtained, without interfering with the rights and use of prior appropriators, including the' first mill appropriation; that the reservoir company had used, at times, the sixty feet of water or an amount equivalent thereto, for storage purposes, when the same, for any reason, was not being used to supply the old mill appropriation; that, subjéct to the rights of the latter, and the use of water by it when actually required, the said reservoir company claimed the right to use that particular water, or any water found flowing in the Cache la Poudre river, by virtue of a prior appropriation thereto, for storage in its reservoir, at stated intervals of time, as against any right acquired by The Hoffman Milling Company under its appropriation.
At the conclusion of the trial the court found in substance that The Windsor Reservoir and Canal Company had made an appropriation out of the Cache la Poudre river, for storage purposes, of waste, nonused and winter waters as of date prior to July, 1890; that The Hoffman' Milling Company had an appropriation, for the purpose of propelling its
“The Windsor Reservoir Company with its headgate above the Hottel discharge cannot ask to have this water distributed to it on its original reser*86 voir priority to the prejudice or injury of the Hoffman priority and the appropriation of this particular water. As against such appropriators of the Hottel mill appropriation below the mill discharge, no appropriator with headgate on the stream above can ask to have this water diverted in order of their original priority; on the contrary, the appropriators of this water below the Hottel mill-race discharge may ask to have it diverted in order of their priority as against those having earlier original priorities on the stream above the point of the mill discharge.”
We waive a consideration of all other error assignments and dispose of the case upon the fundamental point involved, it being the one upon which the trial court bases its decision. The judgment and decree here is founded solely upon the interpretation, by the court below, of the opinions in the Reservoir Company v. Water Company, supra, to the effect, as above indicated, that the sixty (60) cubic feet of water appropriated by the Mason & Hottel mill-race was a segregation thereof from the general waters of the stream, which must thereafter be allowed to, whether used or not, or whether needed for use, by the Mason & Hottel mill-race, go down the river, subject to re-appropriation only by those taking water from the stream at a point below the tail of the old mill-race. That is, that this water was not subject,, and could not be subject, to appropriation by those diverting water from a point above the old mill tail-race. No such holding was ever intended by this court, and no such thing was in fact held or decided in the opinions above referred to.
The point of diversion of water for a beneficial use is a mere incident, and is in no sense a controlling factor in effecting an appropriation. This is just as true of the waters involved in the Mason & Hottel mill-race appropriation as it is generally of the waters
To the extent, both in time and volume, to which The Windsor Reservoir and Canal Company had, by diversion and application to a beneficial use, made a prior appropriation of the sixty cubic feet of water of'the old mill-race appropriation, when the same was not in use, and was not needed for use thereunder, before The Hoffman Milling Company made its appropriation, the former company is entitled, as against the latter one, to continue to divert and use the same, as theretofore diverted and used. The question of the extent of this right is purely one of fact to be determined in a proper proceeding for that purpose.
Referring briefly to the question of the right of the owner of the Mason & Hottel mill-race appropriation, which is discussed in the briefs, to sell the same to one diverting it above the tail of its mill-race, which question is only incidentally involved here, as we view the matter, the court having decided the controversy upon the point above discussed, it is proper to say that, as against a vested right of a user and appropriator of this particular water, below the tail-race of the old mill appropriation, the owner of the Mason & Hottel mill-race right cannot in any wise lawfully dispose of that right to another, to be applied to a new and different use, either above the tail of the mill-race, or at any other point on the stream, so as to adversely interfere with or injuriously affect
The judgment and decree is reversed and the cause remanded to the court below for further proceeding, in conformity with the views here expressed.
Reversed and remanded.
Chief Justice Steele and Mr. Justice White concur.