Farmers' High Line Canal & Reservoir Co. v. Southworth

• Decision Date: 17 June 1889
• Citation: 21 P. 1028,13 Colo. 111
• Parties: FARMERS' HIGH LINE CANAL & RESERVOIR CO. et al. v. SOUTHWORTH.
• Court: Colorado Supreme Court

21 P. 1028

13 Colo. 111

FARMERS' HIGH LINE CANAL & RESERVOIR CO. et al. v. SOUTHWORTH.

Supreme Court of Colorado

June 17, 1889

Appeal from district court, Arapahoe county.

The facts in this case necessary to a correct understanding of the opinions are sufficiently stated therein. The constitutional and statutory provisions considered at length by the court, are as follows: Const art. 16, § 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; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes.' Gen. St. § 1722: 'If at any time any ditch or reservoir from which water is or shall be drawn for irrigation shall not be entitled to a full supply of water from the natural stream which supplies the same, the water actually received into and carried by such ditch, or held in such reservoir, shall be divided among all the consumers of water from such ditch or reservoir, as well as the owners shareholders, or stockholders thereof, as the parties purchasing water therefrom, and parties taking water partly under any by virtue of holding shares, and partly by purchasing the same, to each his share pro rata, according to the amount he, she, or they (in cases in which several consume water jointly) shall be then entitled, so that all owners and purchasers shall suffer from the deficiency arising from the cause aforesaid each in proportion to the amount of water to which he, she, or they should have received in case no such deficiency of water had occurred.'

B. F. Harrington and C. J. Hughes, for appellants.

I. E. Barnum, for appellee.

HAYT J.

It is alleged in the complaint that the ditch through which all the parties to this action receive water for irrigation 'is composed of two ditches, the upper one formerly known as the 'Golden Canal' and the lower one formerly known as the 'Extension ditch." It does not, however, appear that these two ditches were constructed at the same time, nor whether water was diverted from the natural stream, which is the common source of supply through both ditches, the same season or upon different seasons. If, as the language seems to indicate, the lower ditch is merely an extension of the upper one, formerly known as the 'Golden Canal,' it may be that those cultivating lands under the latter had acquired priorities to the use of water for the purpose of irrigation many years senior to those taking water out of the Extension ditch, and certainly the consolidation of these two ditches under one management did not operate to place such rights upon an equality in the absence of an agreement to that effect. Rominger v. Squires, 9 Colo. 327 12 P. 213. The statute in reference to a pro rata distribution of water among all the consumers from the same ditch, in times of scarcity, when there is not sufficient for all, was certainly never intended to apply to such a case, and if such had been the legislative intent in passing the act it would, in my judgment, be clearly in conflict with the constitutional provision, 'that priority of appropriation shall give the better right as between those using water for the same purpose.' It was said by this court in Thomas v. Guiraud, 6 Colo. 533: 'The true test of the appropriation of water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same, or making such application, is immaterial.' In the light of these decisions, it seems clear that, at least under some circumstances, different users of water, obtaining their supply through the same ditch, may have different priorities of right to the water; that the appropriations do not necessarily relate to the same time. In this case, therefore, although all the parties receive water through the same ditch, if plaintiff has alleged facts showing that he has a prior right to the use of water which the defendants are causing to be prorated among those having subsequent rights, the demurrer was properly overruled; otherwise it should have been sustained. It is well established that no mere diversion of water from a stream will constitute the constitutional appropriation. To make it such it must be applied to some beneficial use, and in case of irrigation it must be actually applied to the land before the appropriation is complete. Schilling v. Rominger, 4 Colo. 100; Thomas v. Guiraud, supra; Sieber v. Frink, 7 Colo. 149, 2 P. 901; Wheeler v. Irrigation Co., 10 Colo. 582, 17 P. 487. In the case of Wheeler v. Irrigation Co., supra, Mr. Justice HELM says: 'But to constitute a legal appropriation, the water diverted must be applied within a reasonable time to some beneficial use; that is to say, the diversion ripens into a valid appropriation only when the water is utilized by the consumer, though the priority of such appropriation may date, proper diligence having been used, from the commencement of the canal or ditch.' It is apparent from these decisions that the priority of appropriation which gives the better right is a legal conclusion, resulting from certain facts--the diversion of water from the stream, and its application to a beneficial use. Under the Code provision, requiring the complaint to contain 'a statement of the facts constituting the cause of action in ordinary and concise language, without necessary repetition,' these facts should have been stated in the complaint, and not in the legal conclusion. An examination of the pleading under consideration discloses the plaintiff's claim to be that he has a priority from the natural stream, and that he has heretofore employed the owners of said ditch of convey said water, etc.; but the pleading fails to state the facts upon which such priority must rest if it exists. The complaint contains no averment as to the time at which appellee first diverted the water, and nothing is alleged in reference to the application thereof to his lands. It is entirely silent in reference to these important matters. The only allegations in reference thereto occur in the fifth and eighth paragraphs of the complaint, which paragraphs are as follows, to-wit: ' Fifth. That the plaintiff has a priority to the use of such an amount of water from said creek that, after evaporation and leakage in the carriage, there shall be and remain one hundred inches thereof when turned from said ditches into the lateral ditch leading to said land, for the purpose of irrigating said land, dated from about the 1st of April, A. D. 1881, and that he has heretofore employed the owners of said ditch to convey said water through said ditches to the head-gate of the lateral ditch leading from said Extension ditch to the lands of said plaintiff.' ' Eighth. That there is plenty of water in said creek that is unappropriated on any priority antedating said priority of the plaintiff to fully furnish said one hundred inches of water to the plaintiff, but said defendant wrongfully and fraudulently refuses to furnish the same, and threatens that it will not furnish the same, during said season, in case there is not water enough for all priorities, and that it will make the plaintiff prorate the water in said ditch with a large number of priorities that are subsequent in time to the said priority of the plaintiff; and that said subsequent priorities are for the purpose of irrigating, except a very small amount that may be used for domestic purposes; and that he will have to abandon the same if that is done.' In view of this pleading I am unable to agree with the deduction drawn by the chief justice, which, as stated by him, is: 'The question propounded in this case resolves itself into the following: May the legislature provide that in times of scarcity water shall be prorated among consumers having priorities of the same date?' Of course, there can be but one answer to this question; but in my judgment, no such question is presented by the pleadings. On the contrary, the plaintiff expressly alleges that he has a priority, and that the defendants' right is subsequent in point of time to such priority. This is either a good allegation, or it is not. If the averment 'that the plaintiff has a priority,' etc., is to be treated as the statement of a fact, rather than as a conclusion of law resulting from certain facts, it stands confessed as against this demurrer, and the plaintiff has shown such a superior right in himself as is expressly recognized by the constitution, and one that neither the courts nor the legislature can take away or impair. In my opinion, however, it is an averment of a mere legal conclusion, and as it is well settled that the statement of a legal conclusion, resulting from certain facts, without stating the facts, will not meet the Code requirement, the complaint should be held insufficient. The rule requiring the facts relied upon by the plaintiff to entitle him to a recovery to be stated in the complaint contains the fundamental and most important principle of the reformed system of pleading. It is not technical, but substantial; not a useless requirement, but necessary to advise the opposite party and the...