Crippen v. Glasgow

• Citation: 87 P. 1073,38 Colo. 104
• Parties: CRIPPEN v. GLASGOW.
• Decision Date: 03 December 1906
• Court: Supreme Court of Colorado

87 P. 1073

38 Colo. 104

CRIPPEN v. GLASGOW.

Supreme Court of Colorado

December 3, 1906

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

Proceedings by David E. Glasgow to change the point of diversion of plaintiff's right to use the water of a creek to a place higher up the stream, to which J. J. Crippen filed objections. From a decree in favor of petitioner, Crippen appeals. Affirmed.

Hodges Arlson & Hodges, for appellant.

John I Palmer, for appellee.

CAMPBELL J.

This is a special proceeding under the act of 1903 (Session Laws 1903, p. 278), having for its object a change, to a place higher up the natural stream, of the point of diversion of the petitioner's right to the use of water from San Luis creek in water district No. 25. The substantive part of this act recognizes, and gives legislative sanction to, the right which theretofore existed of changing the point of diversion if the rights of other appropriators are not injuriously affected. The exclusive method or remedy for enforcing the right is therein prescribed. If it appears upon hearing of the application that no injury has been done, the change may be made; otherwise, not. Due notice of the application was given, as required by the act, and of those affected by the proposed change some appeared, and filed their protest. Some of the protestants own lands irrigated from the same stream situate between the present and the proposed point of diversion, while appellant's lands are below the present headgate of the ditch through which petitioner's appropriation is enjoyed. At the hearing, and on evidence somewhat conflicting, the court found that nobody would be injuriously affected by the change, and, upon such finding, entered a decree permitting the same to be made. Of the parties supposed to be affected, all of whom are junior appropriators, only appellant has oppealed. He insists that the great preponderance of the evidence shows that he will be injuriously affected if the decree stands. Of the protestants, those who own lands lying between the old and the new point of diversion claimed at the hearing that their land adjacent to the stream is subirrigated, as they express it, if the water of the stream is allowed to flow unobstructed, whereas if petitioner changes his point of diversion several miles up the stream, as he proposes, the quantity of water to which he is entitled, which theretofore was...