Armstrong v. Larimer County Ditch Co.

• Decision Date: 07 July 1891
• Parties: ARMSTRONG, Water Commissioner, v. LARIMER COUNTY DITCH CO.
• Court: Colorado Court of Appeals

27 P. 235

1 Colo.App. 49

ARMSTRONG, Water Commissioner, v. LARIMER COUNTY DITCH CO.

Court of Appeals of Colorado

July 7, 1891

Error to district court, Larimer county; T.M. ROBINSON, Judge.

The right to the use of water secured by legal appropriation is property, and a proper construction of the various provisions of the constitution on the subject harmonizes that instrument with the declaration of the Bill of Rights, "that private property shall not be taken or damaged for public or private use without just compensation."

Defendant in error is a corporation operating under the general incorporation law of the state for constructing, operating and maintaining a ditch for irrigation, agriculture domestic, and manufacturing purposes. In April, 1881, it commenced the construction of its ditch from the Cache la Poudre river, at a point near the foot of the mountains, to run in an easterly and south-easterly direction. There were also seven contemplated or projected reservoirs for the storage of water. The ditch was in process of construction for several years, and some time during the year 1888 was 60 miles in length, having at its head a carrying capacity of about 470 cubic feet of water per second. At the time of the institution of this suit very few, if any, of the contemplated reservoirs along the line of the ditch for storing the supply of water had been built. By an adjudication in April, 1882, to establish the priorities to the use of water in the district where the ditch was located in which a decree was entered, and by subsequent and supplemental proceedings, one in April, 1884, and one in October, 1885, in which the decree was amended, it was finally adjudicated and decreed that the ditch of the defendant in error should be ditch No. 63, with priority No 100, with capacity computed at 463 cubic feet per second. Between the time of the commencement of the construction of the ditch and the bringing of this suit a large number of settlers, estimated at near 200, many with families, settled under the ditch, dependent upon the defendant for water for irrigating and domestic purposes to be supplied from its ditch under contracts made with the corporation. It is shown in evidence that the large extent of country through which the ditch was excavated was an arid, alkaline waste,--a veritable desert. Before the supposed appropriation of water to the ditch in question there had been from the Cache la Poudre river 99 appropriations of water, dating from the earliest settlement of the country down to that time, and each and all had been decreed priority over the ditch in question. Priorities from 1 to 78 inclusive were for water appropriated prior to January 1, 1876, and aggregated over 2,300 cubic feet of water per second. On the 4th day of May, 1888, as shown by the evidence, there was but 360 cubic feet of water per second in the river. From that time on to the close of the irrigating season, with the exception of two short freshets, lasting but a few hours, the water varied from 250 to 800 cubic feet per second. The plaintiff in error, during the year 1888, was water commissioner of the district in which defendant's ditch was situated, and, in his official capacity, charged with the apportionment and distribution of water according to the appropriations and priorities, as adjudicated and decreed. Early in the season, by reason of the scarcity of water in the stream, and its inadequacy to supply earlier appropriations, he ordered the head-gates of defendant's ditch closed, and the water was shut out.

This suit was instituted against the water commissioner, plaintiff in error, by filing a complaint on the 4th day of May, 1888 for an injunction restraining him from closing the ditch, and for a decree that the ditch be entitled to water sufficient for the domestic use of those who were alleged to be dependent upon it. On the day the complaint was filed the following order was made: "Upon the filing of this complaint in the office of the clerk of the district court of Larimer county, Colorado, and also upon the filing of an undertaking in the sum of one thousand dollars, conditioned as required by law, with good and sufficient sureties, to be approved by the clerk, that a writ of injunction issue commanding the defendant, his associates and employes, immediately to raise the head-gate of the ditch or canal mentioned in the complaint, so that a sufficient amount of water may enter and flow into said ditch to supply the consumers of water therefrom with water for domestic purposes, according to its priority No. 100, as heretofore determined by the decree of the court, and also commanding him and them to keep said head-gate raised until further order in the premises. Allowed at Fort Collins this 4th day of May, 1888,"--and a preliminary writ of injunction was issued and served. A trial was had, and, on November 5th, the following final decree was entered: "This cause having heretofore come on to be finally heard upon the pleadings and the evidence, as well that on part of the defendant as that in behalf of the plaintiff, and the court having heard the same and the argument of counsel thereon, and having taken the matter under consideration for further advisement, and having duly considered the same, and being now fully advised in the premises, doth find the issues for the plaintiff. And the court doth specially find from the pleadings and evidence aforesaid that, at the time of the commencement of this action, the plaintiff was, and still is, a corporation duly organized for, and, among other things, engaged in, the business of conveying and distributing from the Cache la Poudre river, to and for the use of persons residing along the line of its canal, water for domestic purposes; that the plaintiff's said canal is situate in water district No. 3, and is some sixty miles in length; that the persons aforesaid residing along the line of said canal, at the time of the commencement of this action, were and still are, to a great measure, dependent upon the plaintiff and its said canal for water suitable and fit for domestic purposes, and, in many instances, are wholly dependent thereon for water for such purposes; that, at the time of the commencement of this action, there was flowing in and down said river sufficient water to supply the reasonable needs and demands of all appropriators and users of water therefrom for domestic purposes, if carefully distributed, and with no more waste than is naturally incident to the customary manner of distributing water through open ditches and canals, but the water of said river was insufficient for the service of all desiring the use of the same for various other beneficial uses; that the plaintiff has and controls a large reservoir for the storage of water situate upon the said river above the head-gate of its said canal, wherein it is wont, from time to time, to store a large amount of surplus water, to be afterwards drawn off and turned into its canal for beneficial uses; that the defendant, as water commissioner of water district No. three, (3,) had shut down and closed, and threatened to keep shut down and closed, the head-gate of the plaintiff's said canal, and had thereby deprived the plaintiff of the means of obtaining water wherewith to supply the same to the persons so dependent upon it for water for domestic purposes, save at such times when, by reason of increased flow of water in the river, the plaintiff may be entitled to take water therefrom under and by virtue of its appropriation thereof for agricultural purposes. And the court doth further find, as a matter of law, that, when the waters of said river are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes are entitled to divert and take the same, according to their respective priorities of appropriation thereof, for such purposes, notwithstanding any appropriation thereof by persons using the same for any other purpose. And the court doth further find and declare, as a matter of law, that the uses to which water may be applied, which are comprehended by the term 'domestic purposes,' hereinbefore employed and occurring in the constitution of this state, are as follows, and none other, that is to say: Household purposes, including water for drinking, washing, bathing, culinary purposes, and the...