Clark v. Ashley

• Citation: 34 Colo. 285,82 P. 588
• Parties: CLARK et al. v. ASHLEY et al.
• Decision Date: 02 October 1905
• Court: Supreme Court of Colorado

82 P. 588

34 Colo. 285

CLARK et al. v. ASHLEY et al.

Supreme Court of Colorado

October 2, 1905

Appeal from District Court, Saguache County; Chas. C. Holbrook Judge.

Suit by William T. Ashley and others against Zachary T. Clark and others. From a decree in favor of complainants, defendants appeal. Affirmed.

Ira J. Bloomfield, for appellants.

John W Davidson, for appellees.

STEELE J.

An adjudication of priorities to the use of water in water district No. 26 was had in the district court of Saguache county; the final decree being entered in the year 1889. This decree confirmed to Ashley and his associates appropriations made by them of the water of Saguache creek and its tributaries. The appropriations were made during the years 1871 and 1872. In the year 1877 John F. Schaller entered certain lands in Saguache county, on which springs known as the 'Schaller Springs' rise. In the adjudication Schaller appeared, offered proof, and obtained decrees for the ditches known as the 'Schaller Ditch No. 1' and the 'Schaller Ditch No. 2.' He also claimed the water of the Schaller springs, but no adjudication was made with reference thereto. The decrees granted Schaller are later than those granted Ashley and his associates. The Clarks are owners of the lands where the springs rise, through mesne conveyances from Schaller. Claiming that the water of these springs has always flowed in a well-defined channel from where they rise into Saguache creek, and that the water flowing from the springs is known as the 'Schaller Spring Branch' of Saguache creek, and is one of the tributaries of Saguache creek, and that the Clarks were using the water without right or authority of law and in violation of prior rights, Ashley and his associates secured a temporary injunction in the district court of Saguache county. Demurrer to the complaint was overruled. In the answer the defendants aver that the water that flows from the vicinity of the springs is composed partly of water from the springs and partly of seepage water coming from irrigated lands above the springs; that, if the water from the springs were turned into the channel of the creek, no part thereof could or would flow to or enter the headgates of plaintiffs or either of them, because persons other than the plaintiffs would be entitled to use the water; that for more than 20 years they have been using all of the water flowing from the springs for irrigating land owned by them; and that their possession has been open, notorious, and well known to the defendants; and in a separate defense they set up that for more than 7 years prior to the commencement of the suit the defendants and their grantors have openly, notoriously, and exclusively, with the full knowledge of the plaintiffs owned, used, and had the actual possession of the lands mentioned, including the water so rising from such springs and seepage, under claim and color of title thereto made in good faith, and have continuously, with the knowledge of plaintiffs, used the said water for the irrigation of their lands, and have, during said time, paid all taxes legally assessed upon said land, water, and water rights so constituting a part of said land, being the same spring and spring water mentioned in plaintiff's complaint. A demurrer was interposed to the separate defense, and was sustained. The defendants elected to stand by the separate defense.

The court, it is alleged, erred in overruling the demurrer to the complaint, and in sustaining the demurrer to the separate defense, and in holding that the plea of 20 years' possession had not been sustained, and in rendering judgment for plaintiffs, when it appeared that the plaintiffs were not injured and could not be benefited by the granting of the injunction. It was shown that priorities ahead of the plaintiffs' exhausted the entire water of the stream, but it does not follow that plaintiffs would not receive benefit from the issuance of the injunction. If the defendants were wrongfully appropriating water, they should not have been permitted to continue to do so, because, although the priorities senior to the plaintiffs' call for more water than went into the stream, if the water taken by the defendants was allowed to flow into the stream, plaintiffs would receive water much sooner than they otherwise would.

Many cases are cited by the appellant in support of his contention that 'the right to use water for irrigation may be acquired, not only by original appropriation or by...