Golden Canal Co. v. Bright

Decision Date20 February 1885
Citation6 P. 142,8 Colo. 144
PartiesGOLDEN CANAL CO. v. BRIGHT.
CourtColorado Supreme Court

Error to district court of Arapahoe county.

Wm. B. Mills, for plaintiff in error.

Benedict & Phelps, for defendant in error.

HELM J.

Two classes of questions are presented by this record for consideration: First, those involving the rights of the parties under the constitution and statutes governing the subject in controversy; and, second those relating to procedure. So far as practicable these classes of subjects will be separately considered, the former first receiving attention.

1. Our constitution (article 16, § 8) reads as follows:

'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 of corporations.'

In obedience to this constitutional command, the legislature, in 1879, designated the course to be pursued in procuring the requisite order from the respective boards of county commissioners. Gen. St. §§ 1738, 1739. No fault is claimed, from a constitutional point of view, in the substance of this legislation; none could be found with its purpose. The specific ground of objection is that the matter of fixing maximum rates is not clearly referred to in the title of the act. This title is as follows:

'An act to regulate the use of water for irrigation, and providing for settling the priority of right thereto, and for payment of the expenses thereof, and for payment of all costs and expenses incident to said regulation and use.'

It might have been wiser to abbreviate this title. In our judgment, the same would have been sufficient had it read, 'An act to regulate the use of water for irrigation.' This is the controlling purpose of the law. The rest of the title refers to nothing which is not germane to this subject. Incidental to a proper regulation of the use of water diverted from natural streams in this state, is a determination of the priorities of right in connection therewith. This court has held that in Colorado, 'in the absence of express statutes to the contrary, the first appropriator of water from a natural stream, for a beneficial purpose, has, with the qualifications contained in the constitution, a prior right thereto, to the extent of such appropriation.' Coffin v. Lefthand Ditch Co. 6 Colo. 443; Thomas v. Guiraud, Id. 530. And it requires no argument to demonstrate that a general law, intended to fully regulate the use of such water, would almost of necessity touch upon the subject of priority of right thereto; while, of course, the payment of expenses and costs in determining such priority of right, and in regulating such use, is a subject that would naturally be considered. So we do not think the title obnoxious to the objection that more than one subject is expressed therein. However involved and obscure the language used may at first appear, it is plain that the object of the law, as declared in its title, is the regulation of the use of water for irrigation.

But it is only by the outlay of large sums of money in constructing and maintaining canals or ditches that the business of agriculture, in portions of the state, can be extensively and successfully carried on. The average farmer is often too poor to make the expenditure necessary in owning and operating a main ditch of his own. Besides, it is almost always a matter of economy to convey water long distances through a single large main, and there distribute it to the consumers by means of small laterals. Consequently, individuals and corporations, like respondent, engage in the business of building and operating these mains, and furnishing water to farmers along the lines thereof. If these persons or corporations were entirely uncontrolled in the matter of prices, it requires no prophetic vision to see that injustice and trouble would follow. If allowed to speculate in that which is properly a part of the public domain, and protected in the possession thereof, it is exceedingly appropriate that they should be subjected to reasonable regulations in connection therewith. Hence the wisdom and justice of section 8 of the construction above quoted. In the law before us the legislature attempt to regulate the use of water thus furnished and sold by respondent and others who engage in such enterprises. Prominent among the matters involved in this regulation is the price to be charged. The phrase 'regulating the use' is not confined to the forbidding of injustice in the distribution, the prevention of waste, or the apportionment in times of scarcity; it is broad enough to include the frustration of unfair exactions, and the fixing of reasonable rates. To deny this would be to give the expression a narrow and restricted meaning, instead of construing it liberally, with a view to carrying out the legislative intent. The title is therefore not misleading, so far as this objection is concerned; no incongruity in this particular exists; no surprise or fraud therefore can be fairly presumed. The requirement that the subject 'shall be clearly expressed in the title' is sufficiently complied with. See Cooley, Const. Lim. *142 et seq., and cases cited.

This constitutional inhibition must receive a reasonable construction. It is enough if the bill treats of but one general object, and that object is expressed in the title. To require that each subdivision of the subject, each and every of the 'ends and means necessary or convenient for the accomplishment of the object,' must be specifically mentioned in the title, would greatly impede and embarrass legitimate legislation. Judge COOLEY asserts that it would 'actually render legislation impossible.' Cooley, Const. Lim. *144.

2. It is conceded by counsel in argument that the ditch-owner may make reasonable rules, to be observed by both himself and the consumer, in the sale and distribution of water from his ditch. But section 1740 of the General Statutes confers an affirmative right upon the prior purchaser, who has complied with the provisions thereof, to continue his purchase of water; and he cannot be required, as a condition precedent to the exercise of this right, to acknowledge the equity of all the rules adopted by the ditch-owner. To say that he could, would be in a measure to place him at the mercy of such proprietor; for he could thus be coerced into compliance with the most oppressive and unjust regulation. If the rule is fair and reasonable, and in harmony with law, his obedience thereto will probably be enforced, regardless of prior approval; but the reasonableness thereof is a matter to be determined in some proper tribunal. This ground of defense was, therefore, untenable.

3. It is not necessary for us at this time to pass upon the propriety and justice of respondent's rule, requiring application for water to be made by a prior purchaser previous to the beginning of the irrigating season. Such a regulation, proper notice thereof being given, has much to commend it; it would probably result in mutual convenience and benefit. Conceding the propriety thereof, and also the justice of a condition therein, had one been inserted, forfeiting the right of a prior purchaser, in case of non-compliance therewith, provided the water has in the mean time been disposed of to other parties, we are still of opinion that in this matter the court below committed no error. It does not appear from this branch of the answer that any such disposition had been made when relator presented his application. For aught that is stated, respondent had, unincumbered by any promise or sale, a sufficient quantity to have supplied relator; and we think that under the circumstances a fair construction of the section last above mentioned, required compliance with the latter's request. That is to say, in our judgment, though the prior purchaser has not made his application within the time prescribed by rule, yet if he do so afterwards, and while the ditch-owner is free from conflicting obligations and is able to grant his request, the statutory right is not forfeited. The declaration in respondent's answer, that other parties had, previous to relator's application, petitioned for all the water left, does not amount to an averment that respondent had sold or agreed to sell the same, or was under any obligation so to do; nor does it even justify the conclusion, as a matter of pleading, that such petition was still before respondent and subject to favorable action.

4. It is not material whether the relator in this case had any other source from which to obtain the water desired. Section 1740, above mentioned, provides that 'any person or persons, acting jointly or severally, who shall have purchased and used water for irrigation for lands occupied by him, her, or them, from any ditch or reservoir, or shall not have ceased to do so for the purpose or with the intent to procure water from some other source of supply, shall have a right to continue to purchase water to the same amount, on paying or tendering the price fixed by the county commissioners as above provided; or, if no price shall have been fixed by them, the price...

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