Platte Water Co. v. Northern Colo. Irr. Co.

• Decision Date: 03 May 1889
• Citation: 12 Colo. 525,21 P. 711
• Parties: PLATTE WATER CO. v. NORTHERN COLORADO IRRIGATION CO.
• Court: Colorado Supreme Court

21 P. 711

12 Colo. 525

PLATTE WATER CO. v. NORTHERN COLORADO IRRIGATION CO.

Supreme Court of Colorado

May 3, 1889

Appeal from district court, Douglas county.

In February, 1860, the governor and legislative assembly of Kansas territory passed an act constituting certain persons and their legal associates a body corporate and politic under the name of the 'Capitol Hydraulic Company,' with power, inter alia, to sue and be sued, to have perpetual succession, etc. One section of the act was as follows: 'Sec. 2. Said company shall have the power and exclusive right to direct the water from the bed of the South Platte river, at any point they may select between the Platte canon and the mouth of Cherry creek, and also to direct the water from the bed of Cherry creek, at any point within six miles of its mouth, and to conduct the water from both said streams by canal or ditch across the plains or intervening lands, to the cities of Auraria, Denver, and Highland, in the county of Arapahoe, territory of Kansas, and have the exclusive privilege of using and controlling the same for mechanical, agricultural, mining, and city purposes.' Colorado was organized as a territory in 1861, and Arapahoe county, Kan., became Arapahoe county, Colo. In January, 1867 the territorial legislature of Colorado passed an act by which the name the 'Capitol Hydraulic Company' was changed to the 'Platte Water Company;' and providing further, that the 'said Platte Water Company shall be liable, at law and in equity, on all contracts, obligations debts, claims, or demands of the Capitol Hydraulic Company, and the said Platte Water Company shall have the right to sue, and may be sued, by that name, plead and be impleaded, and generally shall have authority to do such acts as like corporations are authorized to do by law.' In 1879 and 1881 the general assembly passed certain acts, the purpose of which was to provide for the determination of all questions concerning the priority of appropriation of water between the owners of ditches, canals, and reservoirs, drawing water for irrigating purposes from the same natural stream, and all other questions of law and questions of right growing out of or in any way involved or connected therewith. The proceedings under these acts are by application in writing by one or more parties interested as owners of any ditch, canal, or reservoir in any water district, praying the district court to proceed to an adjudication of such priorities. Notice is required to be given to each and all parties having an interest in any ditch, canal, or reservoir in such water district to appear and file their statement of claim to priority under oath. The testimony is then taken, each party having opportunity to present proofs in behalf of such claim, as well as for or against any priority of right to water by appropriation, sought to be shown by any other party, by or through such ditch, canal, or reservoir, either as owner or consumer of water drawn therefrom. In adjudicating the priorities between the several ditches, canals, and reservoirs, the decree is required to show the priority of appropriation made by the original construction, as well as by any subsequent extension or enlargement of the same. Appellant and appellee herein being severally parties to this proceeding under the acts aforesaid, the court found and adjudged the priorities of appellant's ditch as follows: 'By construction (priority No. 1) so much water as will flow in said ditch on a grade or fall of four and one-half feet to the mile, with width on bottom of ten feet, width on top thirteen feet, with depth of water flow of eighteen inches,--the appropriation of the water took effect on and the said priority thereof dates from the 28th day of November, 1860; and that there be further allowed to flow into said ditch, from said river, under and by virtue of said appropriation of water by said first enlargement thereof, (priority No. 75,) so much additional water as will amount to forty-three cubic feet of water per second of time,--said appropriation took effect on and dates from November 1, 1873; and, further, that there be allowed to flow into said ditch from said river, for the use and benefit aforesaid, under and by virtue of said appropriation of water by second enlargement thereof, (priority No. 130,) so much additional water as will amount to 85 95-100 cubic feet of water per second of time,--the appropriation of which last-mentioned water took effect on and said priority thereof (No. 130) date from the 7th day of March, 1882.' The priority of appellee was adjudged as follows: 'Number 111, with carrying capacity of said ditch, so far as constructed, grade of twenty-one inches to the mile width, on bottom forty feet, slope of banks one to one, with a berme of six feet wide, slope of embankment two to one width, on top or surface of water fifty-eight feet, depth of water flow of eight feet, estimated at 1,184 cubic feet per second of time.' Appellee's ditch being unfinished, the adjudication was conditional, subject to the completion of the ditch by the exercise of due diligence within a reasonable time. Appellant, feeling itself aggrieved by these adjudications, brings this appeal, and assigns error, in substance, as follows: That the court erred in not adjudging appellant entitled to the exclusive use and a prior vested right to all of the waters of the South Platte river, through and by its ditch or canal, necessary for all the uses of the city of Denver, agricultural and otherwise, according to the terms of the acts of the Kansas and Colorado legislatures, respectively, and for the irrigation of lands on the line of said ditch or canal, as the same were at the time of the passage of said acts, or ever might be for all times thereafter; and that, instead of adjudging that appellant was limited therein, the court should have limited the claims and rights of all other claimants, and especially the said the Northern Colorado Irrigation Company and its said canal.

John C. Stallcup and John T. Shaffroth, for appellant.

Hugh Butler, for appellee.

ELLIOTT J., ( after stating the facts as above.)

The irrigation acts of 1879 and 1881 were intended as a system of procedure for determining the priority of rights to the use of water for irrigation, between the owners of ditches canals, and reservoirs taking water from the same natural stream. The proceedings under said acts are purely statutory, and cannot be resorted to for the purpose of determining the claims of parties to the use of water for domestic or other purposes not fairly included within the meaning of the term 'irrigation.' The word 'irrigation,' in its primary sense, is defined 'a sprinkling, or watering;' yet, according to the best lexicographers, it has an agricultural or special signification: 'The watering of lands...