Means v. Stow

• Citation: 31 Colo. 282,73 P. 48
• Parties: MEANS et al. v. STOW et al.
• Decision Date: 05 May 1903
• Court: Supreme Court of Colorado

73 P. 48

31 Colo. 282

MEANS et al. v. STOW et al.

Supreme Court of Colorado

May 5, 1903

Appeal from District Court, Sagauche County.

Proceedings between Horace B. Means and others and John F. Stow and others. The former appealed from the decree of the district court. Appeal dismissed.

See 66 P. 881.

John W Davidson, for appellants.

Ira. J Bloomfield, for appellees.

STEELE J.

In a proceeding begun for the purpose of procuring an adjudication of priorities of right to the use of water for irrigation in Water District No. 26, in Sagauche county statements of claim were filed by the appellees for an enlargement of certain ditches in said water district. The claim was that the said ditches were constructed for the purpose of taking the place of irrigation by overflow from Sagauche creek, which overflow had become depreciated by reason of natural causes near the headwaters and along said stream. A referee took the testimony and made findings of fact, which were approved by the court, and a decree was entered awarding priorities to certain ditches owned and operated by the appellees. Exceptions were taken to the report of the referee, which were overruled. The decree was rendered June 15, 1900, and an appeal was taken from the judgment to this court.

The decree, it is alleged, is not supported by the evidence, the appellees contending that 'the evidence clearly shows that the appellees were enjoying the same and equal rights at the time that they had at all prior times; that the evidence clearly shows that they only had certain waste water that was taken from said Sagauche creek by means of ditches belonging to others; and the said claimants could acquire no right by such use of water.' The claimants claim the right to water under section 2268, Mills' Ann. St., which, in substance, provides that all persons who shall have enjoyed the use of water for the irrigation of meadow land, by the natural overflow of a stream, shall, in case of the diminishing of water supplied by such stream, for any cause prevent such irrigation therefrom in as ample a manner as formerly, have right to construct a ditch for the irrigation of such meadow, and to take water from such stream therefor. But we cannot pass upon the questions presented, for the reason that no exception was taken by bill to the decree, and because the transcript does not contain a bill of exceptions, nor is there any certificate under the...