Cascade Town Co. v. Empire Water & Power Co.

• Decision Date: 03 October 1910
• Citation: 181 F. 1011
• Parties: CASCADE TOWN CO. v. EMPIRE WATER & POWER CO. et al. BIGGER v. SAME.
• Court: U.S. District Court — District of Colorado

181 F. 1011

CASCADE TOWN CO. v. EMPIRE WATER & POWER CO. et al.

BIGGER v. SAME.

United States Circuit Court, D. Colorado.

October 3, 1910

E. F Ware, for complainants.

R. L Holland, for respondents.

LEWIS District Judge.

Complainant the Cascade Town Company, owns several hundred acres of land up Ute Pass, about eleven miles from Colorado Springs. Fountain Creek flows through Ute Pass in an easterly direction, and as it passes the lands of the complainant company its waters are augmented by those of Cascade Creek-- short in length of flow but precipitous-- which comes down from the watershed on the northerly slope of Pike's Peak to the westerly. The said complainant company and its predecessors in title have owned these lands for many years and they began improving them as a summer resort more than twenty years ago, and have maintained them as such ever since and have not sought to utilize them otherwise. For that purpose they have constructed hotels there and built cottages, roads and trails on its lands extending up through Cascade Canon, through which the stream of the same name flows, and on beyond into the mountains, laid out, dedicated to the public and improved a small park in said canon, made a lake and fountain, built a pavilion or auditorium for conventions, and otherwise improved its grounds, thereby adding to the attractions of the place as left by nature. The complainant company and its predecessors are not, and were not, municipal corporations, but business ventures created for the purpose of maintaining their property as a resort for tourists during the summer season. The place is known as Cascade. The Midland Railway, which traverses Ute Pass, has a station there. The complainant company has sold some of its property to persons who desired to improve the same as summer homes, and the complainant Bigger has spent about $15,000 in improving his home on land bought from the company, lying on both sides of Cascade Creek just below the canon. The company obtains an income from those who stop at its hotels and enjoy other accommodations which it offers. It has spent a large amount of money in improvements. The roads and trails up Cascade Canon and on into the mountains were constructed at an expense of fifteen or twenty thousand dollars. It also built a small waterworks to supply the cottages and its hotels. It advertises the place for the purpose of inducing the public to go there, and for the past quarter of a century it has been visited annually by twelve or fifteen thousand people. It has a permanent population of fifty or sixty people. Among other attractions held out in its advertisements are Cascade Canon and the falls of Cascade Creek through the canon. The canon and falls are rare in beauty and constitute the chief attraction. Without them the place would not be much unlike any other part of Ute Pass. The canon is about three-quarters of a mile long and very deep; its floor and sides are covered with an exceptionally luxuriant growth of trees, shrubbery and flowers. This exceptional vegetation is produced by the flow of Cascade Creek through the canon and the mist and spray from its falls. Some of these falls are as much as thirty feet in height, but the difference in elevation between the foot and the head of the canon is so great that the falls are almost continuous from the head down. The volume of water is the greatest during the summer season. It comes from the melting snows on the north slope of Pike's Peak. But the flow is fairly even, due to the fact that the upper stretches of the watershed are composed of disintegrated granite into which the water first sinks and gradually percolates until gathered into the bed of the stream. The volume is said to be equivalent to a stream about eight feet wide and six to eight inches in depth. The vegetation in the canon and up its sides consists, in part, of pine, spruce, fir, balsam, aspen, black birch, Japanese maple, thimble berry, wild cherry, choke cherry, and aster, columbine, larkspur, wild rose, the red raspberry, wild gooseberry, ferns, mosses, and many other kinds of trees, shrubs and flowers. The stream is annually stocked with trout. The birds which are found in the canon, some grouse, a few squirrels, and perhaps a few other wild animals there, are protected by the complainant company. The complainant called a florist of twenty-five years experience and a landscape gardener of thirty-five years experience as witnesses. They tell us that the native flora of the country is quite extensive in Cascade Canon, that the evergreen features are perfect, that there are three or four varieties of pines, three of juniper and three of spruce, probably twenty-five varieties of native shrubs, about fifty varieties of native perennials, and several varieties of moss growth, and a large variety of wild flowers and flowering shrubs, that the waterfalls create a spray and mist which, together with the underground seepage down the sides of the canon, produce this very luxuriant growth, there being at least two hundred varieties of vegetation, and that it is far superior in that respect to any other canon in the neighborhood, and exceptional. The seepage and the mist and spray give life to the foliage.

The defendant was incorporated for the purpose, among other things, of generating electricity by water power, and to dispose of the same as a commodity; and to execute that purpose it sent its agents on to the watershed of Pike's Peak, above the head of Cascade Canon, and located a reservoir site and did some acts, at small expense, looking to the execution of that purpose, whereby it intended and expected to impound the waters in such reservoir and later conduct it in pipes down the mountain to and beyond the property of the complainant company. And thereupon these complainants filed their several bills asking that the defendant be enjoined from so doing,-- as a threatened injury to their vested rights.

It is found as a fact that if the defendant do impound the waters of Cascade Creek above the falls and conduct it therefrom in pipes as aforesaid, the falls in the canon and the vegetation on its floor and sides will be largely, if not wholly, destroyed and the canon hence become a dry gulch, and that all the waters flowing in said stream are needed by complainant company, and are necessary for the aforesaid purposes to which they have been applied by said complainant.

II.

1. The first contention of both complainants is that the government, while it was the owner of the lands on which the canon and the falls are situate, had riparian rights in the stream and that those rights were conveyed by patent from it, and through mesne conveyances, to the complainants.

This contention cannot be accepted. There are no riparian rights in Colorado as against a valid appropriation of water.

In Sternberger v. Seaton Co., 45 Colo. 401, 404, 102 P. 168, 169, it is said:

'The doctrine in this state that the common law rule of continuous flow of natural streams is abolished, is so firmly established by our constitution, the statutes of the territory and the state, and by many decisions of this court, that we decline to reopen or reconsider it, however interesting discussion thereof might otherwise be, and notwithstanding its importance.'

And again, page 403 of 45 Colo., page 169 of 102 Pac.:

'The Supreme Court of the United States, in several cases, has approved and indicated its satisfaction with the decisions of the state courts which hold that the common law doctrine has been abolished, and has said that each state, without interference by the federal courts, may for itself, and as between rival individual claimants, determine which doctrine shall be therein enforced.'

In Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446, it is said:

'It is contended by counsel for appellants that the common law principles of riparian proprietorship prevailed in Colorado until 1876, and that the doctrine of priority of right to water by priority of appropriation thereof was first recognized and adopted in the constitution. But we think the latter doctrine has existed from the date of the earliest appropriations of water within the boundaries of the state. The climate is dry, and the soil, when moistened only by the usual rainfall, is arid and unproductive; except in a few favored sections, artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate, or right of property. It has always been the policy of the national, as well as the territorial and state governments, to encourage the diversion and use of water in this country for agriculture; and vast expenditures of time and money have been made in reclaiming and fertilizing by irrigation portions of our unproductive territory. Houses have been built, and permanent improvements made; the soil has been cultivated, and thousands of acres have been rendered immensely valuable, with the understanding that appropriations of water would be protected. Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.

'The right to water in this country, by priority of appropriation thereof, we think is, and has always been, the duty of the national and state governments to protect. The right itself, and the obligation to protect it, existed prior to legislation on the subject of irrigation. It is entitled to protection as well after patent to a third party of the land over which the natural stream flows, as when such land is a part of

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