Monte Vista Canal Co. v. Centennial Irrigating Ditch Co.

• Decision Date: 13 May 1912
• Citation: 22 Colo.App. 364,123 P. 831
• Parties: MONTE VISTA CANAL CO. et al. v. CENTENNIAL IRRIGATING DITCH CO.
• Court: Colorado Court of Appeals

123 P. 831

22 Colo.App. 364

MONTE VISTA CANAL CO. et al. v. CENTENNIAL IRRIGATING DITCH CO.

Court of Appeals of Colorado

May 13, 1912

Appeal from District Court, Costilla County; Charles C. Holbrook Judge.

Petition by the Centennial Irrigating Ditch Company against the Monte Vista Canal Company and others for permission to change the point of diverting water. From a judgment granting the petition, defendants appeal. Motion to transfer to the Supreme Court denied.

Corlett & Corlett, of Monte Vista, and Goudy &amp Twitchell, of Denver, for appellants.

Jesse Stephenson, of Monte Vista, for appellee.

KING J.

Motion has been made by appellants to remand this cause to the Supreme Court under the provisions of section 6 of the act creating the Court of Appeals, assigning as a reason that the decision necessarily relates to and involves a freehold. The judgment appealed from was rendered by the district court in and for Costilla county, in a special proceeding under the act of 1903 (S.L.1903, p. 278) on petition of the Centennial Irrigating Ditch Company, a corporation, owner of the Centennial Ditch, for permission to change the point of diverting the water decreed to that ditch from the present headgate to a point about 1 1/2 miles further up the Rio Grande river. The petition alleged ownership of adjudicated water rights, and that the change in point of diversion prayed for would not injuriously affect the rights of any person. The appellants (four canal companies, an irrigation district, and Malinda J. Workman for herself as an heir and as guardian of certain minor heirs) protested against the change, alleging that it would injuriously affect them, and each of them. The canal companies and the irrigation district were the owners of ditches or canals having decreed rights to the use of water from the stream junior to that of petitioner. The Workman heirs were the owners of certain shares of the capital stock of the Centennial Irrigating Ditch Company, and had been for many years receiving water through the Centennial ditch, and objected to the change, chiefly for the reason that the building of a new ditch and headgate and securing the rights of way made necessary by the change would occasion large expense, and that the cost of maintaining the same thereafter would be greater upon their shares of stock, and that if their water alone were left in the old ditch the cost to them of maintaining such ditch would be greater than if joined with the other stockholders. Upon trial, and after full hearing, the court made its findings of fact that the change prayed for would not injuriously affect any person excepting the Workman heirs, and entered a decree granting the petition, except as to the water belonging to said heirs which was ordered to be turned out as before, and the change as to them was granted upon the condition that no part of the expense of making the change and constructing the new ditch and headgate should be assessed against the shares of stock in the Centennial Irrigating Ditch Company belonging to said heirs. From this judgment the several respondents prayed their appeal to the Supreme Court as provided in the irrigation statutes. Section 2427 et seq., Mills' Ann.Stats.

The contention of appellants is that the change granted will manifestly and necessarily result in the use of water by the petitioner for a greater length of time, or in its taking a greater quantity of water from the stream because of the larger acreage and different character of the soil intended to be irrigated, than before the change, and will also result in a much less return of water to the stream from seepage, which would require a larger quantity of natural flow than before to run down the stream to supply senior appropriations, thereby depriving appellants of a material portion of the water which they otherwise might draw from the stream; that the question is as to whether appellants, by the judgment appealed from, have been deprived of a water right, or their right to the use of water materially lessened or diminished; and that therefore a freehold is involved.

The testimony tended to show that under the old ditch, after a few days' irrigation, there resulted a heavy return to the stream, which supplied to a large degree the water required by senior appropriations; that under the new line of ditch a considerable acreage of land not theretofore irrigated was intended to be put into cultivation, and a portion of the water would be carried over a divide so that the waste and seepage would not all readily or necessarily return to the stream.

The sole question for present determination is: Does the decision appealed from necessarily relate to or involve a freehold? Or, in general, is a freehold involved in a statutory proceeding for permission to change the point of diversion of a water right, under pleadings and evidence as found in this case?

The words "relate" and "involve" are synonymous as applied to the provisions of the act constituting the Court of Appeals and its jurisdiction to review causes transferred to it from the Supreme Court. Brandenburg v. Reithman, 7 Colo. 323, 3 P. 577; Wyatt et al. v. Larimer & Weld Irr. Co. et al., 18 Colo. 298, 33 P. 144, 36 Am.St.Rep. 280; McClellan v. Hurd, 21 Colo. 197, 40 P. 445; Knowles v. Lower Clear Creek Ditch Co., 27 Colo. 469, 63 P. 317; Bates v. Hall, 44 Colo. 360, 98 P. 3.

In determining this question we have to consider the peculiar nature of the property designated "a water right," and the title thereto, as distinguished from land. This "right" is said to be intangible and incorporeal. The ultimate title or ownership of the water of the natural streams of this state is, by the Constitution, vested in the public, but dedicated to the use of the people, subject to appropriation. In Wheeler v. Northern Colorado Irr. Co., 10 Colo. 582, 17 P. 487, 3 Am.St.Rep. 603, it is said that, even after appropriation, this title, except perhaps as to the limited quantity that may be flowing in the consumer's ditch, remains in the general public, while the paramount right to its use continues in the appropriator. The right is usufructuary. There is no property in the corpus of the water so long as flowing naturally. There is no property in the channel of the stream, and the water right is distinct from the right to the ditch, canal, or other structure in which the water is conveyed. The original right and title is secured by appropriation.

In this case, the evidence of title, or of the right to use the water, is the decree of the court adjudging the amount of water which the several canals or ditches may take from the stream, and fixing their relative priorities. By these decrees the right to divert the waters from a stream is fixed at and limited to a certain point or place designated as the headgate of the ditch to which the award is made. Under the decisions of our courts, the public officers charged with the control of the distribution of water may not recognize the right to change this point of diversion, or deliver the water at any other point than that named in the decree, until permission is granted by the court. New Cache La Poudre Irr. Co. v. Water Supply & Storage Co., 29 Colo. 469, 68 P. 781.

But the right to change the point of diversion existed before the statute and has always been recognized in this state. It is a property right. Union Colony et al. v. Elliott, 5 Colo. 371; Ft. Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1, 30 P. 1032, 36 Am.St.Rep. 259; Wadsworth Ditch Co. et al. v. Brown, 39 Colo. 57, 88 P. 1060; New Cache La Poudre Irr. Co. v. Water Supply & Storage Co., supra; Lower Latham Ditch Co. et al. v. Bijou Irr. Co., 41 Colo. 212, 93 P. 483; Vogel et al. v. Minnesota Canal Co. et al., 47 Colo. 534, 107 P. 1108. But it is a qualified right, and has always been made subject to the condition or provision that it can be exercised only in case it appears that such change will not impair or injuriously affect the vested rights of others. Fuller et al. v. Swan River Placer Co., 12 Colo. 12, 19 P. 836; Lower Latham Ditch Co. v. Bijou Irr. Co., supra; Session Laws 1903, § 2, p. 278.

That a water right is a "freehold" is not in doubt. Weil in Water Rights in the Western States, says: "A water right of appropriation is real estate, independent of the ditch for carrying the water, and independent of ownership or possession of any land, and independent of place of use or mode of enjoyment, whereby the appropriator is granted by the government the exclusive use of the water anywhere so long as he applies it to any beneficial purpose." Section 288. A water right has been held to be a freehold or "real estate" in the following cases: Wyatt et al. v. Larimer & Weld Irr. Co. et al., supra; Insurance Co. v. Childs, 25 Colo. 360, 54 P. 1020; Daum et al. v. Conley et al., 27 Colo. 56, 59 P. 753; Knowles v. Lower Clear Creek Ditch Co., 27 Colo. 469, 63 P. 317; Gutheil, etc., Co. v. Town of Montclair, 32 Colo. 420, ...