Combs v. Agricultural Ditch Co.

• Decision Date: 11 January 1892
• Parties: COMBS v. AGRICULTURAL DITCH CO.
• Court: Colorado Supreme Court

28 P. 966

17 Colo. 146

COMBS v. AGRICULTURAL DITCH CO.

Supreme Court of Colorado

January 11, 1892

Appeal from district court, Arapahoe county.

Application of Charles J. Combs for a writ of mandamus to the Agricultural Ditch Company to compel it to supply him with water for irrigation purposes. From a judgment denying the application he appeals. Reversed.

The other facts fully appear in the following statement by ELLIOTT, J.:

Appeal from a judgment denying an application for a writ of mandamus. The following provisions of the constitution are referred to in the opinion: Article 16 'Sec. 5. The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public; and the same is dedicated to the use of the people of the state subject to appropriation as hereinafter provided. Sec. 6. The right to divert unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right, as between those using the water for the same purpose. * * *' 'Sec. 8. The general assembly shall provide by law that the board of county commissioners, in their respective counties, shall have power, when application is made to them by either party interested, to establish reasonable maximum rates to be charged for the use of water, whether furnished by individuals or corporations.'

Syllabus by the Court

1. The writ of mandamus is an appropriate remedy to compel the delivery of water for purposes of irrigation.

2. A ditch company carrying water for general purposes of irrigation cannot arbitrarily refuse to supply an actual bona fide consumer.

3. A ditch company diverting water for general purposes of irrigation cannot, by any provision of its by-laws, rules, or regulations, exempt itself or its stockholders from the operation of the constitution in respect to priority of appropriation.

4. Those who actually construct an irrigating ditch may thereby acquire a prior right to the water diverted therein, provided they apply the same to beneficial use within a reasonable time.

5. A mere diversion of water is not an appropriation of it, within the meaning of the constitution. A diversion without application to beneficial use is unlawful.

6. The ownership of a prior right to the use of water is essentially different from the ownership of stock in an irrigating company. The ownership of the stock may be acquired by descent or purchase. The ownership of the prior right can be acquired originally only by the actual beneficial use of the water, and can be acquired by transfer only by some one who will continue such use. The very birth and life of a prior right to the use of water is actual user.

7. The privilege of diverting water extends only to uses truly beneficial, and not to purposes of speculation.

8. An excessive diversion of water cannot be regarded as a diversion to beneficial use.

9. In determining a controversy in respect to water-rights, not only the actual prior appropriations of water, but the quantity of land and the character of the soil to be irrigated, are to be considered. The amount of stock or interest which the parties have in the irrigating ditch is not decisive of such a controversy.

10. Though it may not be practicable to attain mathematical exactness in measuring the flow of water, yet a reasonable approximation to substantial accuracy should be aimed at in determining controversies relating to water supply.

11. A question to a witness upon his examination in chief embracing the very substance of the issue on trial, and calling for an answer which, if accepted, amounts to a determination of such issue, is an improper question.

Leiper & Johnson and T. J O'Donnell, for appellant.

Markham & Carr, for appellee.

ELLIOTT, J., ( after stating the facts.)

The writ of mandamus had been held to be an appropriate remedy to compel the delivery of water for purposes of irrigation. In the case of Canal Co. v. Bright, 8 Colo. 144, 6 P. 142, a judgment awarding the writ was reviewed upon error in this court, and affirmed. In the case of Wheeler v. Irrigation Co., 10 Colo. 582, 17 P. 487, a judgment denying the writ was reviewed upon appeal by this court, and reversed. In the latter case, however, the appeal was prosecuted under the special appeals act of 1885, (Sess. Laws, p. 350.) Whether judgments in cases of this kind are appealable under the Code of 1887 may in some cases be a matter of such practical importance. Upon reaching this cause for consideration, we suggested a hearing in limine upon the question of the right of appeal, but counsel for appellee did not present any brief or argument upon the point. Under the circumstances we have concluded to consider the case as though the judgment related to a franchise. Code, § 388. The decision, however, is not to be taken as a precedent upon that question. There may be good reasons why appeals in cases of this kind should not be allowed which could not be urged against a review by writ of error.

Upon this review the vital questions are: (1) Was such a state of facts established upon the trial as entitled the petitioner, Combs, to have the defendant ditch company supply him with water for the irrigation of his land, as demanded in his petition? (2) Was any substantial error committed upon the trial by which the petitioner may have been prevented from establishing his claim to the relief demanded?

Under the constitution and laws of this state a ditch company carrying water for general purposes of irrigation cannot arbitrarily refuse to supply water to an actual and bona fide consumer, making seasonable application and offering proper compensation therefor. A refusal to supply water by the carrier, to be justifiable, must rest upon something more substantial than the mere will of the carrier. The constitutional rule that 'priority of appropriation shall give the better right as between those using the water for the same purpose' must never be overlooked, though a variety of circumstances and conditions may have to be taken into consideration in determining the claim of an applicant for water in a given case.

That the petitioner, Combs, was in the occupancy of certain agricultural lands, so located as to be conveniently supplied with water from the defendant's ditch; that he requested the defendant to supply him with water necessary for the irrigation of said lands for the season of 1888, and tendered therefor the price fixed by the board of county commissioners; and that the defendant refused to deliver the water,--are matters that were either admitted or practically undisputed on the trial. The defendant attempted to justify its refusal to deliver the water upon the ground that, by the declared objects of its incorporation, it was a mutual company; that it was not organized for the purpose of carrying water for others, for hire; that its only obligation in the matter of carrying water was to supply its stockholders. An inspection of the certificate by which the Agricultural Ditch Company was incorporated, as introduced upon the trial, does not sustain this ground of defense. The certificate shows that the company was organized under the general incorporation act by certain settlers living in the arid district of Jefferson and Arapahoe counties, territory of Colorado, unprovided with water, for the purpose of irrigation, stock-raising, aiding the industrial interests of the country, and other purposes. The certificate further shows 'that the objects for which this company is incorporated are to irrigate lands situate in range sixty-nine, townships three and four, and other lands in Jefferson and Arapahoe counties, and territory of Colorado, and for farming, stock-raising, and other purposes;' 'that the capital stock of said company shall be twenty thousand dollars, to be divided into two hundred shares of one hundred dollars each.' There is nothing in the certificate to indicate that it might not be the legitimate business of the defendant company to carry and supply water for irrigation generally to those occupying lands within the vicinity of the ditch. Hence, we do not have to consider whether a purely mutual company might or might not stand on a different footing.

The defendant offered to introduce in evidence certain of its by-laws, as follows: '(1) No water shall be sold from the company's ditch, except to stockholders. (2) The price of water shall always be as low as is consistent with the permanent maintenance of the ditch. (3) No cash dividend shall be declared on the stock of the company.' Such testimony, if it had been admitted, would not have been controlling. A ditch company diverting water from a natural stream for general purposes of irrigation cannot, by any provision or declaration of its by-laws rules, or regulations, exempt itself or its stockholders from the operation of the state constitution. The unappropriated waters of every natural stream belong to the public, and are subject to appropriation by the people to beneficial use. Priority of appropriation to actual beneficial use, and not mere ownership of stock in a ditch company, gives the better right to such use. Individuals may organize a company, either by or without incorporation, for the construction of an irrigating ditch, and may by such means divert the unappropriated waters of a natural stream. They may provide that their several interests in such enterprise shall be represented by shares of stock. But neither the company nor any stockholder of the company can thus...