Bates v. Hall

• Decision Date: 01 June 1908
• Citation: 44 Colo. 360,98 P. 3
• Parties: BATES et al. v. HALL et al.
• Court: Colorado Supreme Court

98 P. 3

44 Colo. 360

BATES et al. v. HALL et al.

Supreme Court of Colorado

June 1, 1908

Appeal from District Court, El Paso County; Louis W. Cunningham Judge.

Special proceeding by Lucretia L. Hall and others to change two of the petitioners' water rights from one ditch to another. From an order granting the relief prayed, defendants appeal. Reversed and remanded.

G. W. Musser, W. S. Morris, and Frank J. Baker (P M. Kistler, of counsel), for appellants.

Henry McAllister, Jr., Newton S. Gandy, Branch H. Giles, Frank McDonough, Clarence J. Morley, and Vaile, Dunham &amp McAllister, for appellees.

CAMPBELL J.

In a special proceeding brought for that purpose under the statute (Sess. Laws 1903, p. 278, c. 124) of which due notice to the parties affected was given, the district court rendered a decree permitting the two petitioners to change from the Stubbs and Miller ditch, which takes water from Fountain creek in water district No. 10, El Paso county, to ditch No. 2 of the Fountain Valley Company farther up the same stream and in the same water district, the point of diversion of their right to the use of water for irrigation, each petitioner claiming a one-sixth interest in the quantity theretofore awarded to the Stubbs and Miller ditch by the general statutory decree of 1882, which settled the relative priorities of the ditches in that water district. The respondents, who are owners of the Laughlin ditch in the same district, whose head gate is between the head gates of the Stubbs and Miller and the Fountain Valley ditches, about 2 1/2 miles above the former and one-half to the three-fourths of a mile below the latter, have appealed from this permissive decree.

1. The first objection which they urge thereto is that petitioners failed to show that they are owners of the water rights whose point of diversion they asked to have changed. By many decisions of this and other courts in the arid states the right to the use of water for irrigation is regarded as real estate, and the proper method of passing title thereto is by deed of conveyance. There was no proof of a paper title in petitioner, and the specific objection which respondents make is that where, as here, title to real estate is directly involved, and is a material issue, oral testimony by a witness that one party is or is not the owner is not competent, and they cite Hite v. Stimmell, 45 Kan. 469, 25 P. 852, and Simpson v. Smith, 27 Kan. 565. It may be conceded that these cases announce the general rule. Upon the hearing the court did permit some of the witnesses to testify that petitioners were the owners of the water rights. There was, however, other and uncontradicted evidence that petitioners were in possession of the water rights, and of the lands for irrigating which the water was appropriated, and had used water for that purpose, and were recognized, by other owners of rights in the same ditch, as the owners of the respective interests which they claimed. It is matter of common knowledge that in this state many of the earlier water rights, which are acquired by appropriation, and not by grant, have not passed by deed from the original appropriators. Hence there is no record evidence or perfect chain of title in such cases. Few of the present owners could prove their title if the strict rule contended for by respondents is enforced. Proof of possession and use is prima facie evidence of right, and, if not overcome by stronger evidence, satisfies the requirement of this statute that a petitioner must establish a right to the use of water before relief is granted. Moreover, respondents themselves were obliged to resort to the same kind of evidence to establish their ownership of water rights in the Laughlin ditch, which they claim would be injuriously affected by the proposed change. Respondents have no standing in court unless they are owners of a water right. If proof of petitioners' right is, for the reason indicated, insufficient, respondents' proof is likewise defective. If respondents have no water rights to protect, they are not in a position to interpose an objection that petitioners' proof in the respect noted is insufficient. It necessarily follows that under the facts respondents cannot be heard to object to the alleged insufficiency of petitioners' evidence of ownership.

2. During the course of the hearing it developed that one of the petitioners, the Fountain Valley Land & Irrigation Company, had no interest in the water right, ownership of which it alleged in the petition, except such as is derived from a contract of sale which it had made with May L. Skinner, which contract had not then matured, and legal title was still in Mrs. Skinner. A continuance of the hearing was had for several months, and on its resumption, Mrs. Skinner having died after the contract was made, the executors of her estate and her sole heir at law and devisee under her will, under authority given them by the county court of Arapahoe county, in which the estate was being administered, filed a written statement or petition in this proceeding, wherein, after reciting the making of the contract between Mrs. Skinner and the irrigation company, and that it had been substantially complied with up to date by the latter, they stated that they consented to the proposed change in the point of diversion. Respondents protest that the court committed error in permitting this paper to be filed, and say that, as the executors and heir and devisee never asked to be made, and were not made, parties to the proceeding, it was irregular and prejudicial to respondents for the court to attach any weight whatever to such intervention. It does not clearly appear from the record why the continuance was had, but probably it was granted at the request of petitioners, in order that they might furnish additional proof of ownership, or for the substitution of parties petitioner, or that additional parties might be brought in. Whatever the object was, we cannot see how respondents were prejudiced by the action of the court in permitting the holders of the legal title to come in and give their consent. The legal owners certainly were interested in the subject-matter and the object of the proceeding, and might either consent or object to the change proposed. That they chose to join with the equitable owners in seeking the relief asked is not a matter of which respondents can complain. Neither is any supposed irregularity in allowing the paper evidencing their consent to be filed a just cause of objection.

3. Under this statute we consider it necessary that a petitioner show a right to the use of a certain quantity of water from a public stream for irrigation as a condition precedent to obtaining a decree permitting a change in its point of diversion. To decree in favor of such change where the volume is not fixed would probably lead to useless litigation between rival claimants and the water commissioner. As evidence of such right, petitioners, over respondents' objection, introduced what is referred to in the abstract as 'Exhibit A,' which on its face purports to be that subdivision of the general statutory decree of 1882 pertaining to the Stubbs and Miller ditch, the one-sixth interest in which, owned by each petitioner, they asked to have transferred. The clerk testified that he presumed the exhibit was a part of the files, as it was found in his office and afterwards bound in book form. On the back of it was the indorsement of the then presiding judge of the court, approving the findings made by the referee and the draft of the decree reported by that officer. If this exhibit was the original decree, as approved by the court the Stubbs and Miller ditch was awarded priority No. 6 on the Fountain creek for a ditch of the capacity of 1 1/2 feet by 5 feet on a grade of 9 feet to the mile. In the judgment book of the court, in which, by section 21, Act 1881 (Sess....