Larimer County Reservoir Co. v. People ex rel. Luthe

• Decision Date: 29 January 1886
• Citation: 8 Colo. 614,9 P. 794
• Parties: LARIMER CO. RESERVOIR CO. v. PEOPLE ex rel. LUTHE, Dist. Atty.
• Court: Colorado Supreme Court

9 P. 794

8 Colo. 614

LARIMER CO. RESERVOIR CO. v. PEOPLE ex rel. LUTHE, Dist. Atty.

Supreme Court of Colorado

January 29, 1886

Appeal from district court, Larimer county.

Haynes, Dunning & Annis, for appellant.

T M. Robinson, for appellee.

HELM J.

This action is upon an information in the nature of a quo warranto. It was brought in the court below for the purpose of procuring a forfeiture of the appellant company's corporate franchise.

1. The important question presented by the pleadings for determination in this court relates to the right to utilize the bed of a non-navigable natural stream, upon the public domain, as a reservoir for the purpose of storing and preserving water that would otherwise run to waste. The theory of relator is that such act is illegal per se, and that whether or not injury results to other persons therefrom is a matter of secondary importance. He concedes that the constitution and statutes recognize the right to construct and maintain reservoirs, and thereby preserve water at certain seasons of the year for use at other seasons; but contends that this right can only be exercised by the construction of such reservoirs at a distance from the stream, and a diversion of water into the same by means of ditches or other contrivances adequate for the purpose. In the absence of any written law upon the subject, a person would have the legal right to construct his dam in a non-navigable stream upon the public domain, and thus preserve water for useful purposes, so long as he did not in any way encroach upon the superior rights or interests of others. The government alone could complain. But in this part of the country the policy of the governments, state and federal, has always been to encourage the preservation of water for irrigation and other useful purposes. The rainfall is comparatively light, the soil, without additional moisture, generally unproductive, and therefore a peculiar necessity exists for carefully husbanding water. There is nothing in the unwritten law which countenances interference by government with the application of the foregoing principle.

But it is said that our constitution modifies this doctrine. Section 6 of article 16 is relied upon. The language thereof is as follows:

'The right to divert unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose. * * *'

The maxim expressio unius est exclusio alterius is here invoked. It is claimed that when the constitution recognizes the right to appropriate water by diversion, in excludes the appropriation thereof in any other manner. Further, that the word 'divert' means to take or carry it away from the bed or channel of the stream; that therefore respondent's act of utilizing a natural reservoir in the bed of the stream, and thus storing surplus water for future use, not being a diversion in the sense of the constitutional provision cited, is in conflict therewith. We are not prepared to concede the correctness of counsel's position. It is our opinion that the above is not the most natural and reasonable view to adopt concerning the meaning of the constitution. The word 'divert' must be interpreted in connection with the word 'appropriation,' and with other language used in the remaining sections of that instrument referring to the subject of irrigation.

We think there may be a...