Means v. Gotthelf

• Decision Date: 02 March 1903
• Citation: 71 P. 1117,31 Colo. 168
• Parties: MEANS et al. v. GOTTHELF.
• Court: Colorado Supreme Court

71 P. 1117

31 Colo. 168

MEANS et al. v. GOTTHELF.

Supreme Court of Colorado

March 2, 1903

Appeal from District Court, Saguache County.

Proceeding by Isaac Gotthelf against Horace B. Means and others. From a decree for plaintiff, defendants appeal. Appeal dismissed.

John W Davidson, for appellants.

W. E Cox, for appellee.

CAMPBELL C.J.

This is an appeal from a decree of the district court of Saguache county, rendered in a special statutory proceeding, the object of which was to obtain an adjudication establishing petitioner's right to water for irrigating meadow land through certain ditches taking their supply from Saguache creek, which theretofore had been enjoyed by him as the result of the natural overflow of the stream. Mills' Ann St. § 2268. A number of errors have been assigned, but the only one argued by counsel for appellants is that the evidence is not sufficient to sustain the decree.

The evidence was taken by a referee, who made findings of fact and reported a decree, and upon final hearing these findings were approved, and the decree recommended was made the decree of the court. The specific contention of counsel for appellants, as we understand it, is that in a former statutory proceeding, in the same water district, whose object was to establish the priority of rights therein to the use of water for irrigation, to which petitioner was a party participating, a general decree was made which, inter alia, awarded to him a priority for the same rights which he is here asserting; and that the object of the pending proceeding is not what the petition declares, but, under the guise of seeking to secure by judicial decree through the medium of ditches that which theretofore he has enjoyed as a result of the natural overflow of a stream, in reality petitioner is attempting to have enlarged and extended the identical rights given him by such former decree, to the injury of the decreed rights of respondents. And this attempt, they say, should fail: First, because the time for a re-examination or review of such former decree, which measures the rights of these parties, expired before the pending application was made; second, the evidence herein taken is not sufficient to uphold the findings of fact or the decree here attacked.

The appellant is not in a position to be heard upon these objections. Neither the decree sought to be reviewed, nor the former decree, nor the proceedings in...