43 Colo. 268 | Colo. | 1908
delivered the opinion of the court:
Plaintiffs and defendant were owners of the Bolles and Manney ditch, taking water from the Uncomp ahgre river. During the year 1890 there was-an adjudication of water rights in Water District No. 41, being the district in which the TJncompahgre river is located. Plaintiffs and the grantor of defendant filed their statement of claim for a priority in such proceeding, and a decree was rendered awarding the Bolles and Manney ditch an appropriation of water ■ amounting to 123] statutory inches. This present action is brought to determine the respective rights of each of the water consumers tailing water from this ditch.
It was contended by the plaintiffs that the interest of each consumer was measured by the amount
The plaintiffs, to maintain the issues on their part, offered in evidence “all of the papers, evidence and exhibits relating to the Bolles and Manney ditch that are now on file in this court in the matter of the petition of John H. Garren et al., in the adjudication of water rights in Water District No. 41, state of Colorado.” This was objected to because of its being immaterial and incompetent; that there was nothing to show that it was all of the testimony taken in the proceeding before the referee; that there was nothing to show that the decree was based upon this
The original decree awarding the priority, of course, does not determine the rights of the several owners of the ditch to the water as between themselves. It. does not, and could not, determine the amount of the appropriation of each individual. The only authority which the court had in the premises was to render a decree fixing the amount of the appropriation to which the ditch was entitled, and the date of its-priority. — Evans v. Swan, 38 Colo. 92; Putnam v. Curtis; 7 Colo. App. 437; Oppenlander v. Left Hand D. Co., 18 Colo. 142.
In order to constitute an appropriation of water, there must not only be a diversion of the water from the stream and a carrying of it to the place of use, but it must be beneficially applied, and the measure of the appropriation does not depend alone upon the amount diverted and carried, but the amount which is applied to a beneficial use must also be considered. For instance, in the ease of New Mercer Ditch Company v. Armstrong, 21 Colo. 307, it was determined by the decree that the ditch had a carrying capacity of about 33 cubic feet of water per second of time. It was constructed to irrigate 120 acres of land, and it was determined that the appropriator was entitled to only so much water as he could beneficially apply upon that land. In this case the proof taken before the referee shows that the ditch had a carrying capacity of something like fourteen cubic feet of water per second of time, but the proof shows that there was only about 130 acres' of land irrigated from the ditch. The court did not render the decree for the amount of the carrying capacity of the
The evidence of witnesses who testified at that time, while the matter was fresh in "their minds, would be more apt to be correct than those who, at the time of the trial, testified as to conditions existing fourteen years before. That this testimony was pertinent, see 1st Greenleaf on Evidence, sections 551 and 553.
It is also contended that the defendant was not a party to the original action and consequently is not bound by the testimony introduced in that proceeding. Defendant’s grantor was a party to the proceeding, was one of the petitioners for the adjudication ; the grantor’s rights in this water were measured by the adjudication proceedings and the defendant could procure from his grantor no greater rights than the grantor himself possessed. We think the court did not err in the overruling of the objection to this testimony.
The other assignments of .error all go to the assertion that the findings and judgment of the court are not supported by the evidence. While the oral testimony introduced at the trial was somewhat conflicting as to the number of acres which the plaintiffs and defendant irrigated at the time of the rendition of the decree, there was no conflict in the testimony taken by the referee in the original proceedings and the whole testimony is amply sufficient to sustain the findings and judgment of the district court.
There being no other errors assigned, the judgment will be affirmed. Affirmed.
Chibe Justice Steele and Mr. Justice Goddaed . concur.