Lomas v. Webster

• Decision Date: 02 February 1942
• Docket Number: 14886.
• Citation: 109 Colo. 107,122 P.2d 248
• Parties: LOMAS v. WEBSTER.
• Court: Colorado Supreme Court

122 P.2d 248

109 Colo. 107

LOMAS v. WEBSTER.

No. 14886.

Supreme Court of Colorado

February 2, 1942

In Department.

Error to District Court, Weld County; Frederic W. Clark, Judge.

Suit by Nellie S. Lomas, as executrix under the last will and testament of Thomas Lomas, deceased, against S. F. Webster for injunctive relief.To review a judgment sustaining defendant's motion for dismissal, plaintiff brings error.

Reversed.

Clay R. Apple, of Greeley, for plaintiff in error.

L. R Temple and Albert P. Fischer, both of Fort Collins, for defendant in error.

KNOUS Justice.

The alignment of the parties to this action is the same here as in the trial court and for convenience we shall refer to plaintiff in error as plaintiff and to defendant in error as defendant.The plaintiff, alleging a usufructuary right to certain seepage waters by appropriation and adverse use, sought injunctive relief in the district court against defendant, who, it was said, by an excavation and construction of a dam in the area of the origin of plaintiff's ditch, had cut off plaintiff's water supply.Upon trial, and at the conclusion of the presentation of plaintiff's evidence, the court sustained defendant's motion for a dismissal of the suit.Plaintiff prosecutes this proceeding in error to review the judgment which thereupon was entered.The motion for dismissal was grounded in general terms on the insufficiency of plaintiff's pleadings and evidence to entitle her to any relief whatsoever.The court sustained the motion without comment; hence, we have no intimation from the record concerning the specific basis for the conclusion announced.

The seepage water involved, in the language of the complaint 'percolates, collects and arises in a draw or depression' located upon premises owned by defendant and his predecessors.It appears from the evidence, as plaintiff admits in argument, that no natural stream flows through this draw or that any of the waters arising therein ever reach a natural stream.Plaintiff's appropriation of such waters was alleged to have been made by the construction of a ditch by her testator which conveyed the accumulated waters to his adjoining premises--which he occupied until his death in 1939--where such waters were applied to a beneficial use.As was alleged and proved, plaintiff's testator, on December 16, 1901, filed a statement of claim for said water with the clerk and recorder of Weld county, wherein it was recited that the ditch, as therein described, 'had been constructed and used for several years last past.'Plaintiff, on the information and belief arising from this recital, alleged that the appropriation was made 'prior to the year 1901.'Her evidence disclosed a continuous and uninterrupted use of the water conveyed through the ditch from 1914 until the spring of 1940 when defendant, as he admitted on statutory cross-examination, excavated 'a considerable sump across the swale' in which he erected a power pump and thereby secured sufficient water to irrigate some ten of fifteen acres of his farm lands.Plaintiff concedes that this excavation was on defendant's land several hundred feet up the draw from the head of her ditch.Her evidence further disclosed that following the excavation of the sump by defendant no water has flowed in her ditch and the swampy area in which it heads has dried up.Plaintiff bases her appropriation of this seepage water on section 20, chapter 90, '35 C.S.A., which reads as follows: 'All ditches now constructed or hereafter to be constructed for the purpose of utilizing the waste, seepage or spring waters of the state, shall be governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the water of running streams; provided, that the person upon whose lands the seepage or spring waters first arise, shall have the prior right to such waters if capable of being used upon his lands.'We have uniformly held that as to such waters, which are not tributary to a natural stream, the foregoing proviso means exactly what its words import.Colorado & Utah Coal Co. v. Walter,75 Colo. 489, 226 P. 864;Haver v. Matonock,79 Colo. 194, 244 P. 914;Faden v. Hubbell,93 Colo. 358, 28 P.2d 247.It is only when such seepage water would ultimately reach and become part of a natural stream that an appropriator thereof can acquire a right to the use of such superior to that of the owner of the land.This distinction is clearly set out in the opinion on rehearing in Nevius v. Smith,86 Colo. 178, 279 P. 44.See, also, Clark v. Ashley,34 Colo. 285, 82 P. 588.The waters in controversy in Town of Sterling v. Pawnee D. E. Co.,42 Colo. 421, 94 P. 339, 15 L.R.A.,N.S., 238, andOlney Springs Drainage District v. Auckland,83 Colo. 510, 267[109 Colo. 111] P. 605, came within the latter category.

Since as we have mentioned that the seepage water which plaintiff claims to have diverted if left to itself would never have reached a natural stream, it is certain, in the light of the above authorities, that, in the first instance, any appropriation of the water which plaintiff's testator might have made was subject to the superior right of the owner of the land on which the same arose to apply such waters to a beneficial use on his premises.The circumstance that in Ironstone Ditch Co. v. Ashenfelter,57 Colo 31, 140 P. 177, andNicoloff v. Bloom L. & C. Co.,100 Colo. 137, 66 P.2d 333, cited by plaintiff, that the contest over seepage waters was not between the owner of the land on which such arose and an outside appropriator, renders both cases inapplicable to the point here under discussion.Thus, under the issues here raised, if the plaintiff has a right to the use of these waters superior to the defendant landowner, it must arise from the adverse possession alleged.It is well established that individuals in whom a prior right to the use of water is...