Lamson v. Vailes

• Decision Date: 05 February 1900
• Citation: 27 Colo. 201,61 P. 231
• Parties: LAMSON et al. v. VAILES et al.
• Court: Colorado Supreme Court

61 P. 231

27 Colo. 201

LAMSON et al. v. VAILES et al.

Supreme Court of Colorado

February 5, 1900

Appeal from district court, La Plata county.

Action by Edwin Lamson and others against Wiliam T. Vailes and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

S.W. Carpenter, B. W. Ritter, and Talbot, Denison & Wadley, for appellants.

Richard McCloud and Reese McCloskey, for appellees.

CAMPBELL C.J.

This is an appeal from a portion of a decree of the district court of La Plata county rendered in a proceeding instituted under the irrigation statutes of 1879 and 1881 for the adjudication of the priorities to the use of water for irrigation in water district No. 33. The questions argued by counsel are one of fact and two of law.

The question of fact is embraced within an assignment of error that a less quantity of water was awarded to the ditch of appellants than that to which the evidence entitled it; but, as will be seen later in the opinion, this is eliminated from the present discussion.

The material facts out of which spring the legal propositions are these: The point of diversion of the ditch of appellants is in the state of Colorado, and the lands for the irrigation of which the ditch was constructed as a carrier are situate partly in the state of Colorado and in part in the territory of New Mexico. The legal questions discussed are: First. Can water be appropriated by diversion in Colorado for use in New Mexico? In other words, may one owning land in the territory of New Mexico, whether he be a citizen of the state of Colorado or of some other state or territory of the Union make a diversion in this state from the waters of a nonnavigable stream, and convey the same into the territory of New Mexico for the irrigation of lands therein? Second. Has the district court of La Plata county, under the so-called 'Irrigation Statutes,' jurisdiction in the statutory proceeding to award priorities to a ditch which though having its headgate in this state, was intended to and does, carry water outside of this state, and into the territory of New Mexico, for the irrigation of lands there?

The first is a very important question, and one which, so far as we are advised, has not been passed upon by a court of last resort, though it is claimed that, in principle, the decision in Howell v. Johnson (C. C.) 89 F. 556, is authority for the contention. Certain it is that it is a case of first impression in this jurisdiction. In the view we take of the second legal proposition, it is not necessary to a decision of this appeal to determine the first.

It is clear that the court below, in deciding that it had not jurisdiction to award a priority to the ditch of appellants for the irrigation of lands in New Mexico, but only to the extent that the appropriation was made for lands in Colorado was right under the statutes governing this special proceeding. The appellants contend that sections 2399, 2403, Mills' Ann. St. (Gen. St. 1883, §§ 1762, 1766), contemplate an adjudication for settling the priority of rights for irrigation for all ditches whose points of diversion are within the state, even though the lands to be irrigated are, in whole or in part, beyond its territorial limits. These sections provide for an adjudication of priorities for ditches drawing water for irrigation from the same stream or its tributaries within the same water districts. If driven to that extremity, it would not be difficult, from the language used, to demonstrate that the adjudication was limited to ditches, etc., used for irrigating lands in this state only, though the language does not in terms so provide. We do not, however, rest our conclusion solely upon the language of these sections. We cannot presume that the general assembly intended to enact a law to operate beyond the territorial limits of the state. The distinction sought to be made by appellants, that the point of diversion of the ditch is the sole factor determining the jurisdiction of the court, is not good. The statutes under which this proceeding was instituted--those creating the various water districts, and our entire irrigation law--must be taken together, and, if possible, the different...