Burkart v. Meiberg

• Decision Date: 07 May 1906
• Citation: 86 P. 98,37 Colo. 187
• Parties: BURKART et al. v. MEIBERG.
• Court: Colorado Supreme Court

86 P. 98

37 Colo. 187

BURKART et al. v. MEIBERG.

Supreme Court of Colorado

May 7, 1906

Appeal from District Court, Delta County; Theron Stevens, Judge.

Suit by Alvine Meiberg against J. M. Burkart and another. Decree for plaintiff. Defendants appeal. Reversed and remanded, with instructions.

King &amp Stewart and R. M. Logan, for appellants.

Milton R. Welch, for appellee.

CAMPBELL J.

The plaintiff and defendant own adjoining tracts of land; that of the plaintiff lying to the west of the defendants, the natural slope of which is in that direction. The defendants own valid water rights in several ditches which have their headgates in a natural stream, and with the water thus diverted they had for a number of years irrigated their tract of land in question. In the process of spreading water upon it, some of it, by surface drainage, has passed across, and escaped therefrom, and reached the land owned by the plaintiff, and is there collected by her, and by means of an irrigating ditch, running parallel with the common boundary line, she has used this water in raising crops. Plaintiff first began such use about the year 1890 and so continued until the year 1903, when the defendants dug a parallel ditch, entirely upon their own land, a short distance from the boundary line, and thus intercepted the water which had been spread upon their land further to the east, but which, in the process of irrigation, had not soaked into or passed beneath the surface, and the water thus intercepted by the defendants they carried by means of a ditch around the plaintiff's body of land, and irrigated other lands owned by them to the west of plaintiff's tract. The question for decision is whether the plaintiff has made a valid appropriation of waste water as against the defendants, or whether the defendants have a right, as against plaintiff, to intercept upon their own land, and before it passes therefrom, water which has been spread upon the same, but not entirely consumed, in the process of irrigation. It will be observed from the foregoing statement that it is only to such water as has actually escaped from defendants', and reached her own, lands that plaintiff makes claim. Her ditch is built entirely upon her own lands, and the point of diversion of the waste water is also situate thereon, and not on defendants' property. She does not claim water which, by seepage or percolation, first arises upon her own lands after having been applied to the irrigation of other lands; hence section 2269, Mills' Ann. St., does not apply.

It is manifest that, as against the defendants, the plaintiff has not made a valid appropriation of this alleged waste water. Just what constitutes waste water in every instance we do not decide, but it is unquestionably true that, so far as concerns the right to make a valid appropriation of it, this water is not waste water so long as it remains upon the lands of the defendants, and does not, in any event, become such until it has escaped and reached the lands of others. The plaintiff certainly has acquired no vested right to compel the defendants to apply the waters, the right to the use of which they own, in such a way as that some of it will not soak into their own ground, but escape and pass from the surface on to her lands. The defendants have the right to change the place and manner of use, or reduce the quantity applied to their lands, so that no water whatever will escape and reach the lands of plaintiff. Whether the waste water which the plaintiff for a series of years has utilized has reached her land as a result of an improper or extravagant use which the defendants have made of their own appropriation, or whether it is the result of a proper method of irrigation due to the topography of the county, or some peculiar local condition, does not appear from the evidence and is a matter of no material moment, so far as concerns the rights of the parties litigant. So long as, and while, the water which is applied by defendants to the irrigation of their lands remains upon the same, it is, as against the plaintiff, their exclusive property, whatever may be the rights of plaintiff as against some other claimant to it as waste water. Certainly, defendants could turn into their laterals from the main ditch, lying further to the east, less water than they have been wont to do, or apply it in such a way that all of it will sink into the ground before it reaches the boundary line of the two tracts; or th...