Hammond v. Rose

• Decision Date: 16 October 1888
• Citation: 19 P. 466,11 Colo. 524
• Parties: HAMMOND v. ROSE et al.
• Court: Colorado Supreme Court

19 P. 466

11 Colo. 524

HAMMOND v. ROSE et al.

Supreme Court of Colorado

October 16, 1888

Commissioners' decision Appeal from district court, El Paso county.

J B. Cochrane, for appellant.

John Campbell, for appellees.

RISING, C.

The appellees, who were defendants below, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, the plaintiff standing on his complaint judgment dismissing the action and for costs was entered. It is alleged in the complaint that the plaintiff is the owner in fee-simple of certain lands lying on both sides of Cheyenne creek, which lands were granted to Marcus A. Foster by patent from the United States, December 1, 1865 and that plaintiff claims title as a remote grantee of said Foster; that in 1882 certain parties, under whom defendants claim the water-rights in question, diverted the water from said creek for irrigation purposes; that the water so diverted would naturally flow through and across said lands that defendants are daily diverting all the water from the bed of said stream at a point on the same above his said lands, and that the lands irrigated by defendants, with the water so diverted, are not situated on the banks of said stream, or in the neighborhood thereof, but on the banks of the Fountain river, which is a different stream. The patent issued to said Foster is set out in the complaint, and it does not contain any reservation or exception of vested water-rights. Error is assigned upon the ruling on the demurrer, and two questions are presented: (1) Can an appropriation of all the water of a stream be sustained, as against a riparian owner of lands situated on the stream from which the water is diverted, who obtained a patent for such lands from the United States after such appropriation had been made, and before the amendment of July 9, 1870, to the act of congress of July 26, 1866, went into operation, which amendment requires that patents to public lands, thereafter to be issued, shall be subject to any vested or accrued water-rights? (2) Under the statutes of this state, can the water of a stream be diverted by appropriation, to the exclusion of any owner of lands on said stream, if the lands to be irrigated therewith are not located on the banks, margin, or in the neighborhood of such stream?

Since the commencement of this action the questions presented...