Lamar Canal Co. v. Amity Land & Irr. Co.

• Citation: 26 Colo. 370,58 P. 600
• Parties: LAMAR CANAL CO. v. AMITY LAND & IRRIGATION CO. et al.
• Decision Date: 17 July 1899
• Court: Supreme Court of Colorado

58 P. 600

26 Colo. 370

LAMAR CANAL CO. v. AMITY LAND & IRRIGATION CO. et al.

Supreme Court of Colorado

July 17, 1899

Appeal from district court, Bent county.

Action by the Lamar Canal Company against the Amity Land &amp Irrigation Company and others to establish priority to the use of water for irrigation in district No. 67. There was a decree in favor of defendants, and plaintiff appeals. Reversed.

Under the procedure provided for that purpose in the act of 1881 the district court of Bent county, in adjudicating the priorities to the use of water for irrigation in district No 67, rendered a decree which, inter alia, awarded to the canal owned by the appellant priority No. 9, as of date December 3 1887, and to the canal of appellee the Amity Land &amp Irrigation Company priority No. 7, as of date February 21, 1887. From the findings of fact as made by the referee and approved by the court, it appears that the work of construction on the appellant's canal was begun November 4, 1886, and on that of appellee's February 21, 1887; but as the appellant did not file its map and statement, as prescribed in the act of the general assembly hereinafter set out, within the 90 days after the beginning of the work of construction, as therein required, and not until December 3, 1887, the date of the priority was fixed as of the date of the actual filing, and not, under the doctrine of relation, as of the inception of the work. And, as the appellee filed its map and statement within said period of 90 days, the date of priority awarded to its canal under the authority of the statute was fixed as of the time when the work was begun. To set aside the findings and decree pertaining to the canal of appellant is the object of this appeal. The decision turning upon the construction of the title of the act, that and the sections of the act involved in the controversy are given in full:

'An act to provide for the extension of the right of way for ditches, canals and feeder [feeders] of reservoirs in certain cases, and requiring registration of all such hereafter made or enlarged.

'Section 1. In case the channel of any natural stream shall become so cut out, lowered, turned aside or otherwise changed, from any cause, as to prevent any ditch, canal or feeder of any reservoir from receiving the proper inflow of water to which it may be entitled from such natural stream, the owner or owners of such ditch, canal or feeder shall have the right to extend the head of such ditch, canal or feeder to such distance up the stream which supplies the same as may be necessary for securing a sufficient flow of water into the same, and for that purpose shall have the same right to maintain proceedings for condemnation of right of way for such extension as in case of constructing a new ditch, and the priority of right to take water from such stream, through such ditch, canal or feeder as to any such ditch, canal or feeder shall remain unaffected in any respect by reason of such extension; provided, however, that no such extension shall interfere with the complete use or enjoyment of any other ditch, canal or feeder.

'Sec. 2. Every person, association or corporation hereafter constructing or enlarging any ditch, canal or feeder for any reservoir, for irrigation, and taking water directly from any natural stream, and of a carrying capacity of one cubic foot per second of time as so constructed or enlarged, shall within ninety days after the commencement of such construction or enlargement, file and cause to be recorded in the office of the county clerk of the county in which such ditch, canal or feeder may be situated, or if such canal, ditch or feeder be situated in any water district, in the office of the county clerk of such county into which such water district may extend, a sworn statement in writing, showing the name of such ditch, canal, or of the reservoir supplied by such feeder, the point at which the head gate thereof is situated, (if it be a new construction) the size of the ditch, canal or feeder, in width and depth, and the carrying capacity thereof in cubic feet per second, the description of the line thereof, and the time when the work was commenced, and the name or names of the owner or owners thereof, together with a map showing the route thereof, the legal subdivisions of the land, if on surveyed lands, with proper corners and distances, and in case of an enlargement, the depth and width, also the carrying capacity of the ditch enlarged, with the width and depth of the ditch, canal or feeder as enlarged, and the increased carrying capacity of the same thereby occasioned, and the time when such enlargement was commenced, and no priority of right for any purpose shall attach to any such construction or enlargement until such record is made.' Sess. Laws 1881, pp. 161, 162.natural stream, shall within 90 days after the commencement of such work record with the county clerk of the county in which such ditch or feeder may be situated, or, if it be situated in any water district, with the county clerk of the county into which such water district may extend, a sworn statement in writing describing the line of the canal or feeder, and the time work was commenced, and the names of the owners, with a map of the route, and, in case of an enlargement, the capacity of the ditch as enlarged, and the increased carrying capacity of the same, and the time such enlargement was commenced. Held, that section 2 is void, under Const. art. 5, § 21, providing that no bill, except general appropriation bills, shall be passed, containing more than one subject, which shall be clearly expressed in its title, but, if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.

C. C. Goodale and James W. McCreery, for appellant.

Rogers & Shofroth, for appellee.

Charles H. Toll, Goudy & Twitchell, Ira J. Bloomfield, Wm. R. Barbour, and C. M. Corlett, amici curiae.

CAMPBELL, C.J. (after stating the facts).

Several important and difficult questions of irrigation law have been elaborately argued, but the disposition we make of one that goes to the heart of the controversy and settles it, so far as concerns this review, renders unnecessary a consideration of the others. The date of priorities was established in accordance with the supposed direction of the concluding sentence of section 2 of the foregoing act. Not having made the record required in that section until after appellee's rights became thereby, as it is said, perfected, appellant's priority was fixed as of the date when its record was made, though the beginning of the work of construction antedated that of appellee. Appellant now contends that the subject-matter of section 2 is not clearly, or at all, expressed in the title of the act, and consequently it is void, under the concluding clause of section 21 of article 5 of the constitution, providing: 'No bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.' To the consideration of this proposition we address ourselves.

If it be granted, as appellees maintain, that the matters contained in sections 1 and 2 are but subordinate branches of one general subject that might be comprehended in a single title and treated of in one act, the concession would not be controlling in this cast; for the question before us is not whether these are only subdivisions of some general subject or whether a good title might be drawn to cover them, but, rather, does the title which the legislature has adopted clearly express the subject embraced in section 2 of the act? The rule for determining that question has perhaps never been better expressed than in Re Breene, 14 Colo. 401, 24 P. 3, wherein it is said: 'The matter covered by legislation is to be 'clearly,' not dubiously or obscurely, indicated by the title. Its relation to the subject must not rest upon a merely possible or doubtful inference. The connection must be so obvious as that ingenious reasoning aided by superior rhetoric will not be necessary to reveal it. Such connection should be within the comprehension of the ordinary intellect as well as the trained legal mind. Nothing unreasonable in this respect is required, however, and a matter is clearly indicated by the title when it is clearly germane to the subject mentioned therein.' Appelle...