Fort Morgan Land & Canal Co. v. South Platte Ditch Co.

Citation30 P. 1032,18 Colo. 1
PartiesFORT MORGAN LAND & CANAL CO. v. SOUTH PLATTE DITCH CO. et al. [1]
Decision Date16 May 1892
CourtSupreme Court of Colorado

Appeal from district court, Weld county.

Statutory proceeding by the Platte & Beaver Improvement Company against the South Platte Ditch Company, the Ft. Morgan Land & Canal Company, and others, to determine the priorities of right to the use of certain water for irrigation. From a judgment entered on the report of a referee, the Ft. Morgan Land &amp Canal Company appeals. Reversed.

Syllabus by the Court

1. The water of every natural stream in this state is the property of the public.

2. By a diversion and use for irrigation, a priority of right to the use of the waters of the natural streams may be acquired. This priority is a property right, and, as such, is subject to sale and transfer.

3. There must be not only a diversion of the water from the natural stream, but an actual application of it to the soil to constitute the appropriation for irrigation, recognized by the constitution. A diversion, unaccompanied by an application, gives no right.

4. The awarding of priorities to ditches, in excess of the amount of water actually appropriated at the time, is error. A diversion and promise to use in the future will not support such a decree.

C. H. Foll and E. A. Reynolds, for appellant.

H. N. Haynes and J. P. Brockway, for appellee.

HAYT C.J.

This is a statutory proceeding instituted for the purpose of procuring an adjudication of priorities of right to the use of water for irrigation in water district No. 1, in Weld county. The petition was filed in the month of November, 1886, by the Platte & Beaver Improvement Company. Upon this petition, at the regular November term, 1886, of the district court of Weld county, an order was made appointing one C. A. Bennett referee. By this order the referee was directed to hear and determine such priorities in accordance with the statute regulating the procedure in such cases. Gen. St. 1883, c. 57. The referee, having duly qualified, soon thereafter proceeded to take testimony; and, this being completed, he filed his report at the regular May, 1887, term of the court. To this report the appellant, the Ft. Morgan Land & Canal Company, filed exceptions. These exceptions were, after argument of counsel, overruled by the court, and judgment was entered in accordance with the report. Twenty-four priorities of appropriation were thus established for the 20 ditches represented at the hearing. Appellant's priority appears as No. 18, and upon this appeal all those adjudged to have senior priorities are joined as appellees.

Under our constitution, the water of every natural stream in this state is deemed to be the property of the public. Private ownership of water in the natural streams is not recognized. The right to divert water therefrom, and apply the same to beneficial uses, is, however, expressly guarantied. By such diversion and use a priority of right to the use of the water may be acquired. This priority has been declared a property right, and, as such, subject to sale and transfer. Strickler v. City of Colorado Springs, 16 Colo. 61 26 P. 313. From the first this court has recognized and emphasized the idea that a priority could only be legally acquired by the application of the water to some beneficial use. Hence there must be not only a diversion of the water from the natural stream, but an actual application of it to the soil, to constitute the constitutional appropriation recognized for irrigation. Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028, and cases cited. This may now be considered as one of the fundamental principles underlying our system of irrigation. It is too well established to be open to controversy. A diversion unaccom panied by an application gives no right. This principle applied to the record in this case is fatal to the decree rendered by the district court. The capacity of the several ditches enumerated in the decree to convey water seems to have been the criterion by which the court was governed; for, although evidence was taken tending to show the amount of water actually used in irrigation, such evidence seems to have had but slight effect upon the final decree. It is apparent that the capacity of the various ditches outweighed all other considerations. Such capacity, having once been established, together with proof of diversion and the use of a limited portion of water, with a promise to increase such use up to the limit of...

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23 cases
  • Union Mill & Mining Co. v. Dangberg
    • United States
    • U.S. District Court — District of Nevada
    • May 24, 1897
    ... ... water on the grade of the ditch, 3.32 inches to the rod; the ... Vivian, April ... the land upon which the respective mills are situated, ... was inclosed two miles north and south and three miles east ... and west by a fence? A ... They first started quite a ... canal, but they didn't make it quite so large ... Southworth, 13 Colo. 111, 21 P. 1028; Platte Water ... Co. v. Northern Colorado Irrigation ... 146, 28 P. 966; Ft. Morgan Land & Canal Co. v. South ... Platte Ditch Co., ... ...
  • The Farm Investment Company v. Carpenter
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    • Wyoming Supreme Court
    • May 26, 1900
    ... ... Left Hand D. Co., 6 id., 442; Platte ... W. Co. v. Nor. Col. I. Co., 12 id., 525; ... parties thereto. ( State v. Board Land Com'rs, 7 ... Wyo., 478; Johnston v. L. H. C ... power of the State. Farmers Ind. Ditch Co. v. Agr. Ditch ... Co., 22 Colo. 513, 45 P. 444; White v. Highline ... Canal Co., 22 Colo. 191, 43 P. 1028; see also Louden ... Again, ... in Fort Morgan L. & C. Co. v. So. Platte Ditch Co., ... ...
  • Monte Vista Canal Co. v. Centennial Irrigating Ditch Co.
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    ... ... ditch a considerable acreage of land not theretofore ... irrigated was intended to be put into ... v. Elliott, 5 Colo. 371; ... Ft. Morgan Land & Canal Co. v. South Platte Ditch Co., 18 ... Colo ... ...
  • Cascade Town Co. v. Empire Water & Power Co.
    • United States
    • U.S. District Court — District of Colorado
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    ... ... Town Company, owns several hundred acres of land ... up Ute Pass, about eleven miles from ... In ... Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446, it is ... 'It ... 443, 447; ... Platte Water Co. v. Northern Colo. Irrigation Co., ... [181 F. 1019.] ... See, also, Ft. Morgan L. & C. Co. v. South Platte Ditch ... Co., 18 ... ...
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