Hallett v. Carpenter

• Decision Date: 02 April 1906
• Citation: 86 P. 317,37 Colo. 30
• Parties: HALLETT v. CARPENTER et al.
• Court: Colorado Supreme Court

86 P. 317

37 Colo. 30

HALLETT v. CARPENTER et al.

Supreme Court of Colorado

April 2, 1906

Rehearing Denied July 2, 1906.

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

Proceedings by George A. Carpenter and others for a decree authorizing the transfer of a portion of the appropriation of water belonging to a certain ditch. From such decree, Moses Hallett appeals. Affirmed.

Macbeth & May and Jesse Stephenson, for appellant.

Ira J Bloomfield, for appellees.

BAILEY J.

In this proceeding the district court of Costilla county made a decree authorizing the transfer of a portion of the appropriation of water belonging to the Independent Ditch No. 2. This ditch was a mutual one owned in common by nine farmers, each owning one-ninth of the water. Three of the owners sold to appellees 3 1/3 cubic feet, to be deducted from their share, and it was this water which the trial court ordered transferred into the Meadow Glen ditch. Appellant contends that the court erred in rendering the decree for several reasons:

First. That the right to change the point of diversion of a portion of the appropriation cannot be obtained until some appropriate proceedings are had by which the several rights of the parties may be determined. This court has already decided that where there is a several user of an appropriation of water by the owners, the water to which either of the parties is entitled may be changed both in point of diversion and place of use unless it injuriously affects the rights of others. City of Telluride v. Davis (Colo. Sup.) 80 P. 1051. Upon rehearing it is sought to distinguish the case of the City of Telluride v. Davis because in that case it was agreed as to what the respective shares or interests of the parties in the appropriation were. While in this case it was not only sought to change the point of diversion, but to determine the pro rata interests of the parties in the water, and it is contended that this cannot properly be done in proceedings of this character. Putnam v Curtis, 7 Colo.App. 437, 43 P. 1056, is cited as authority upon that proposition. The matter there involved was a statutory proceeding for an adjudication of priorities of right to the use of water, and it was there properly held that in such proceeding the court does not have jurisdiction to determine disputes between claimants in the same ditch. The object of the proceeding under the adjudication statute is to determine the amount and date of the appropriations of water to which the ditch is entitled and the title to the ditch or the rights of any of the consumers of water from the ditch are entirely foreign to the issue, but after the appropriations have been determined and settled and the owner of any portion thereof desires to change the point of diversion or place of use of so much of the appropriation as he is entitled to, the question...