Coffin v. Left Hand Ditch Co.

• Decision Date: 01 December 1882
• Parties: COFFIN ET AL. v. THE LEFT HAND DITCH COMPANY.
• Court: Colorado Supreme Court

6 Colo. 443

COFFIN ET AL. v. THE LEFT HAND DITCH COMPANY.

Supreme Court of Colorado

December, 1882

Appeal from District Court of Boulder County.

THE facts are stated in the opinion.

Messrs CARR and KIME, for appellants.

Mr RICHARD H. WHITELEY, for appellee.

HELM J.

Appellee who was plaintiff below, claimed to be the owner of certain water by virtue of an appropriation thereof from the south fork of the St. Vrain creek. It appears that such water after its diversion, is carried by means of a ditch to the James creek, and thence along the bed of the same to Left Hand creek, where it is again diverted by lateral ditches and used to irrigate lands adjacent to the last named stream. Appellants are the owners of lands lying on the margin and in the neighborhood of the St. Vrain below the mouth of said south fork thereof, and naturally irrigated therefrom.

In 1879 there was not a sufficient quantity of water in the St. Vrain to supply the ditch of appellee and also irrigate the said lands of appellant. A portion of appellee's dam was torn out, and its diversion of water thereby seriously interfered with by appellants. The action is brought for damages arising from the trespass, and for injunctive relief to prevent repetitions thereof in the future.

The answer of appellants, who were defendants below, is separated into six divisions.

First. A specific denial of all the material allegations of the complaint.

Second. Allegations concerning an agreement made at the date of the construction of appellee's ditch; by this agreement the parties constructing such ditch were to refrain from the diversion of water there through when the quantity in the St. Vrain was only sufficient to supply the settlers thereon.

Third, fourth, fifth and sixth are separate answers by individual defendants, setting up a right to the water diverted, by virtue of ownership of lands along the St. Vrain, and in some instances also by appropriations of water there from. But it nowhere appears by sufficient averment that such appropriations of defendants making the same were actually made prior to the diversion of water through appellee's ditch.

Demurrers were sustained to all of the above defenses or answers except the first, and exceptions to the rulings duly preserved; trial was had before a jury upon the issues made by the complaint and answer as it then remained, and verdict and judgment given for appellee. Such recovery was confined, however, to damages for injury to the dam alone, and did not extend to those, if any there were, resulting from the loss of water.

We do not think the court erred in its ruling upon the demurrers, and we believe the verdict and judgment sustained by the pleadings and evidence.

Were we to accept appellants' views upon the subject of water rights in this state, it would yet be doubtful if we could justify the trepass. And if the agreement were actually made, as stated in the second defense, that fact would not excuse their act in forcibly destroying appellee's dam without notice or warning. It is sufficient upon this subject for us to say, that even if such agreement were legal and binding, and included subsequent settlers on the St. Vrain, yet appellee was entitled to notice of the insufficiency of water to supply the demands of appellants; it it might then, perhaps, have complied with the agreement without serious injury to its property.

But two important questions upon the subject of water rights are fairly presented by the record, and we cannot well avoid resting our decision upon them.

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 it 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 the public domain; and it is immaterial whether or not it be mentioned in the patent and expressly excluded from the grant.

The act of congress protecting in patents such right in water appropriated, when recognized by local customs and laws, 'was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.' Broder v. Notoma W. & M. Co. 11 Otto, 274.

We conclude, then, that the common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that, in the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior right thereto, to the extent of such appropriation. See Schilling v. Rominger, 4 Col. 103.

The territorial legislature in 1864 expressly recognizes the doctrine. It says: 'Nor shall the water of any stream be diverted from its original channel to the detriment of any miner, millmen or others along the line of said stream, who may have a priority of right, and there shall be at all times left sufficient water in said...