Mohl v. Lamar Canal Co.

• Decision Date: 14 March 1904
• Docket Number: 4,448.
• Citation: 128 F. 776
• Parties: MOHL v. LAMAR CANAL CO. et al.
• Court: U.S. District Court — District of Colorado

128 F. 776

MOHL v. LAMAR CANAL CO. et al.

No. 4,448.

United States Circuit Court, D. Colorado.

March 14, 1904

Rogers Shafroth & Gregg, for complainant.

Clarence F. Mead, for respondents.

HALLETT District Judge.

The bill charges that complainant bought from the Amity Land Company, October 1, 1895, a tract of land in Prowers county and one water right in the Amity Canal for irrigating the land. The Amity Canal was begun February 21, 1887, and was constructed pursuant to section 2339, Rev. St. U.S. (U.S Comp. St. 1901, p. 1437), and acts of Assembly of the state of Colorado approved February 11, 1881 (3d Sess., p. 161) nad an amendment of that act approved April 20, 1887 (6th Sess., p. 314). These acts of Assembly are set out in the bill. March 30, 1887, a plat of the Amity Canal was filed in the office of the county clerk and recorder, as required by the act of 1881, claiming an appropriation of 850 cubic feet per second of time of the waters of the Arkansas river. Complainant then gives the history of the Home Ranch Ditch, which was begun November 4, 1886, and not recorded pursuant to the act of Assembly of 1881 until December 3, 1887. The Home Ranch Ditch was acquired by the respondent the Lamar Canal Company, and was an important factor in the controversy which arose between the Amity Canal Company and the Lamar Canal Company concerning their respective appropriations of the waters of the Arkansas river. Complainant further charges that the acts of 1881 and 1887 were universally accepted, and in 1887, when the Amity Canal was begun, a custom and practice prevailed of recording appropriations as required by the act of 1881. Reference is then made to certain acts of Assembly of the state of Colorado, under which the relative rights of appropriators of water for irrigating lands could be determined in district courts of the state, and the charge is made that in some proceedings under such acts the acts of 1881 and 1887 respecting the record of titles were recognized and enforced. November 24, 1893, the Lamar Canal Company, respondent in this suit, brought suit against the Amity Land & Irrigation Company and others to determine the rights of takers of water in District No. 67, where their respective canals were located. In that suit respondent claimed that the Home Ranch Ditch was begun November 4, 1886, and that maps and plats of that ditch were filed as required by the acts of February 11,1881, and of April 20, 1887. In that suit the Amity Land & Irrigation Company, which then owned the Amity Canal, appeared and claimed that the Amity Canal was begun February 21, 1887, and a plat thereof was filed March 30, 1887, as required by the acts of 1881 and 1887. After further proceedings in the district court, a decree was entered July 1, 1895, in which the acts of 1881 and 1887 were recognized as valid and effectual, and the appropriation of the Home Ranch Ditch was postponed to that of The amity Canal because of the earlier record of the latter under the acts of 1881 and 1887. The case was taken to the Supreme Court, and the result is stated in the seventeenth paragraph of the bill as follows:

That from the decree of said district court the said Lamar Canal Company took an appeal to the Supreme Court of the state of Colorado, and on the 17th day of July, 1899, said Supreme Court held said statutes of 1881 and 1887 unconstitutional, because the title thereof was not in compliance with section 21, art. 5, of the Constitution of the state of Colorado, and remanded said proceedings to said district court of Bent county for further proceedings in accordance with said opinion.

Other averments are made to show the quantity of water allowed to the Amity Canal in times of scarcity, which is not sufficient for all its customers. If augmented by the appropriation of the Home Ranch Ditch, which was 72.09 cubic feet of water per second of time, complainant and other shareholders in the Amity Canal would be much better supplied.

The prayer of the bill is that complainant be given the water to which he is entitled in priority and preference to the respondent the Lamar Canal Company.

In the first paragraph of his brief, counsel for complainant states his case in this language:

The theory upon which the plaintiff claims that the facts set forth in the bill constitute a right of action is that the title to the use of water for irrigation from the natural streams of the arid region is deraigned from the general government by virtue of its original ownership and control of said streams, and that one who, in appropriating water, complies with the acts of Congress concerning the use of said streams, and the laws, customs, and usages of the state in which the appropriation is made which regulate or prescribe the manner of making appropriations and acquiring priority of right to the water, thereby establishes certain contract rights, which cannot be impaired either by subsequent legislation or judicial action. Said acts of Congress, and the laws, customs, and usages of Colorado prevailing at the time the appropriation set out in the bill was made, therefore enter into a statement of the plaintiff's cause of action; they being in fact elements of a contract, the impairment of which by the defendants it is sought to prevent in this action.

And on page 7 is this further statement:

In this discussion we start with the proposition that, under the acts of Congress of 1866 (Act July 26, 1866, 14 Stat. 251) and 1870 (Act July 9, 1870, 16 Stat. 217), the said statutes of 1881 and 1887, the plaintiff, by reason of the appropriation of water theretofore made through the Amity Canal, and his purchase of an interest therein, obtained the benefit of a contract, which would be impaired if the decision of the Supreme Court in the adjudication proceedings in District 67 is to prevail.

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