Crippen v. White

• Decision Date: 04 March 1901
• Citation: 28 Colo. 298,64 P. 184
• Parties: CRIPPEN v. WHITE et al.
• Court: Colorado Supreme Court

64 P. 184

28 Colo. 298

CRIPPEN v. WHITE et al.

Supreme Court of Colorado

March 4, 1901

Appeal from district court, Chaffee county.

Proceedings by J. J. Crippen against Otis White and others. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

This is an action, as designated by counsel for appellant, who instituted this proceeding in the court below, to partition the waters of the South Arkansas river for irrigation purposes between appellant, as plaintiff, and the appellees as defendants. In addition to those named, 'the general public of the state of Colorado et al., as possible claimants, who are at present unknown to plaintiff,' were made defendants. The petition filed by plaintiff states, in substance: That he is the owner in trust of certain lands situate upon the margin of this stream, which were settled upon by his remote grantor in 1872. That for the purpose of irrigating such lands a ditch was constructed, and the waters of the stream applied thereon since 1873. For a similar purpose a second ditch was taken out, and water from the stream applied on such lands since 1874. That plaintiff has succeeded to the rights so initiated, and by reason of the application of the water from this stream to the lands in question, and the situation of such lands with respect to the stream, he has become the owner, in common with the people or general public of the state of Colorado, of an undivided property right in and to the volume of water in the stream equal to the carrying capacity of the two ditches. He then proceeds to state that other named defendants have like rights to the waters of such stream, by reason of the situation of their lands, and the diversion of water, some of which are inferior and others paramount to his; that certain other defendants claim an interest in the waters of the stream; that the lands upon which they apply the same are not situate thereon, but upon the margin of another; that the people of the state, by virtue of section 5, article 16, of the constitution (quoting from the petition), 'are owners in common with plaintiff et al. of such an undivided part and portion of the waters of said natural stream as may remain unappropriated, after setting apart to plaintiff et al. such quantity of the waters of said stream as may be sufficient to irrigate their said lands along the margin thereof, as located under the provisions of said territorial statutes and no more'; that certain other defendants, naming them (again quoting from the petition), 'are each dependent for title upon the title to such remainder of the waters of said stream as may have been acquired by the general public as before stated, and from which source only they and each of them derive title, if any they have, and are lessees in common with each other from the state of Colorado, and are not parties at interest as owners in common of a property right in the waters of said stream equal in character to that of plaintiff et al., and are therefore not entitled to water rights from said stream until paramount titles are determined, partitioned, and set apart as provided by law for the partition of other property.' To this petition the defendants named (except Van Kleeck) interposed a general and special demurrer. Plaintiff then moved for a judgment on the pleadings, which was denied, the demurrer sustained, and the action dismissed. The act of the territorial legislature upon which, in a measure, at least, plaintiff relies to maintain this action, reads as follows: 'That all persons who claim, own or hold a possessory right or title to any land or parcel of land within the boundary of Colorado territory when those the organic act of said territory, when those claims are on the bank, margin or neighborhood of any stream of water, creek or river, shall be entitled to the use of the water of said stream, creek or river for the purposes of irrigation, and...