Cache La Poudre Irr. Co. v. Larimer & Weld Reservoir Co.
| Citation | 53 P. 318,25 Colo. 144 |
| Parties | CACHE LA POUDRE IRR. CO. v. LARIMER & WELD RESERVOIR CO. |
| Decision Date | 16 May 1898 |
| Court | Supreme Court of Colorado |
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 183 P.2d 552
Error to court of appeals.
Action by the Cache la Poudre Irrigating Company against the Larimer & Weld Reservoir Company and others. From a judgment for plaintiff the Larimer & Weld Reservoir Company appealed to the court of appeals, which reversed the judgment (45 P 525), and plaintiff brings error. Affirmed.
James E. Garrigues, for plaintiff in error.
H. N Haynes, for defendant in error.
This is a writ of error to a judgment of the court of appeals reversing the judgment of the district court. To this action as tried below, there were several defendants; the causes of action alleged against those not appearing upon the review in either appellate court being entirely distinct and separate from that averred against the present defendant in error which was plaintiff in error in the court of appeals, and a defendant below. The grievance against this defendant is that in buying a water right separate from the land, and transferring the place of use to other lands, the subsequent use was thereby enlarged, to plaintiff's injury. In its decree the district court enjoined the defendant from using, in times of scarcity, a certain quantity of the water thus sought to be transferred, until the plaintiff's priority was satisfied, but refused to restrain it in the use of a certain other quantity thereof, which relief the plaintiff also asked. In the court of appeals the defendant, as plaintiff in error there, assigned as error the granting of the injunction; and the plaintiff, as defendant in error, assigned cross errors to the refusal of the district court to give all the relief prayed. Upon a hearing in the court of appeals the decree was reversed, no relief being awarded to plaintiff, and the injunction theretofore granted was dissolved. 8 Colo.App. 237, 45 P. 525.
The theory upon which this case was tried by the plaintiff is that no transfer of the right to use water for irrigation can be made, or the place of such use changed, to the injury of junior appropriators. While in the pleading it might be inferred that reliance was had upon an abandonment, there is nothing in the evidence to show any subsequent appropriation by plaintiff of the abandoned right, even if such had resulted. With much of plaintiff's argument no fault can be found, and, if the proof sustained the allegations of its pleadings, the relief prayed for should be awarded. The undisputed facts are that the Jackson ditch has a decreed appropriation under its first two priorities of 26 1/12 cubic feet; antedating any appropriation of the plaintiff's ditch, called 'Greeley Canal No. 2,' whose first two priorities of 280 cubic feet are junior to either of the defendant's. The owners of the Jackson ditch and its priorities owned them as tenants in common, and were consumers of the water thereby carried; and they organized a corporation called the Dry Creek Ditch Company (what is commonly known as a 'mutual ditch company'), to which they conveyed the ditch and the water rights; the company issuing to the several owners capital stock representing ownership in the ditch, and the quantity of water which they were entitled to use. There were 24 shares of stock issued. Of these, the defendant company, long after the water had been beneficially used, bought 3 1/4 shares from Terry, Black, and Alford, water consumers under the Jackson ditch, and stored the water thereby represented in its reservoir, and thence distributed it during the later irrigation season to its stockholders, who used it for irrigating lands belonging to them, and lying under their ditch. It will be seen that the water was thus severed from the land on which it was originally used, and applied for the purpose of irrigating other lands. The plaintiff charges that no priority was sold by the sale of ditch stock, and, if it was, then such transfer and change of use have resulted in an enlarged use of water, to plaintiff's injury.
In the first place, it is said that the Jackson ditch, its capital stock, and priority to the use of water thereby carried, are three separate and distinct things; the ditch belonging to the corporation, the priority to the water consumers, while the stock may be held by persons not using water. Upon this as a premise, the argument is that the corporation cannot transfer a priority,--only the water consumer may do this. The sale of ditch stock is not the sale of a priority. To transfer this, the water consumer must also sell the land upon which the water has been used, or, if he retains the land, and sells the water right, to be applied on other lands, such right passes to the grantee, and the grantor no longer can irrigate the land retained by means of the water right thus conveyed to another. The conclusion drawn is that in the sale of ditch stock to this defendant no priority passed, and reliance is had on Combs v. Ditch Co., 17 Colo. 146, 28 P. 966. The premise, as laid down, may be true in whole or in part, or it may be entirely false. A ditch company, organized merely as a carrier of water to those owning the appropriation, may, as a corporation, own the physical or tangible ditch. Its stock may be in the hands of A. and B., and the consumers of water may be C. and D., and the transfer of the capital stock of the company may carry only an interest in the ditch. But where, as in the case at bar, the water rights, and the ditch through which they are enjoyed, are owned by the same persons, as tenants in common, and for their mutual convenience they organize a corporation, and convey to it the ditch and water rights, and the corporation issues to the consumers its capital stock, which represents and stands for, not only the rights of the parties in the ditch, but, by a mutual arrangement, also represents the right to the use of water (or the priority right), then this stock (while not, of course, constituting the ditch, or priority to the use of water) does represent both the ditch and that priority, and a transfer of the stock operates as a transfer of both kinds of property. So that all of the plaintiff's argument, that nothing was transferred by the purchase from water consumers of the capital stock of the ditch company, and all the distinctions sought to be drawn between ditch stock, the ditch, and the priority to the use of water, are wholly inapplicable to the facts of this case. There is nothing decided in the Combs Case that is against this conclusion, and the facts of that case called for no ruling upon the question here raised. Notwithstanding the decision of this court in Strickler v. City of Colorado Springs, 16 Colo. 61, 26 P. 313, that there may be a sale of a water right, separate from the land, and an application of the water to other lands, so long as the rights of others are not infringed, plaintiff persists in the contention that its conclusion is unsound. Much of the argument might be pertinent, were the doctrine of that case an open question; but not only in this state, but in all others in which the system of appropriation prevails, the same result has been reached where the question has been raised. With the conclusion reached in that case, we are content. See, also, Fabian v. Collins, 2 Mont. 510, and Frank v. Hicks (Wyo.) 35 P. 475. The only question of importance, then, in this record, is, have the transfer of the priority, and the change of the place of use, injuriously affected the later appropriator?...
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