Ripley v. Park Center Land & Water Co.
| Decision Date | 06 May 1907 |
| Citation | 90 P. 75,40 Colo. 129 |
| Parties | RIPLEY et al. v. PARK CENTER LAND & WATER CO. |
| Court | Colorado Supreme Court |
Appeal from District Court, Fremont County; M. S. Bailey, Judge.
Petition by the Park Center Land & Water Company against Aaron Ripley and others to obtain an adjudication to the petitioner of a priority of right to the use of water for irrigation. From a decree for petitioner, defendants appeal. Affirmed.
James T. Locke, for appellants.
Charles E. Waldo and Clyde C. Dawson, for appellee.
This is a special proceeding under the statute to obtain a decree adjudicating to the petitioner a priority of right to the use of water for irrigation. In 1903 appellee, as petitioner below, filed its statement with the clerk of the district court of Fremont county, claiming to have made an appropriation of water for irrigation. In 1904 it filed in the district court of that county its petition in the pending proceeding, alleging, inter alia, that after the rendition of a final decree of that court, which, in appropriate proceedings under our irrigation acts, established the relative priority of rights to the use of water for irrigation in water district No. 12, petitioner made an appropriation of water for irrigation which in no way interfered or conflicted with those adjudicated by the former decree, and prayed for a decree establishing its rights in accordance with the statute in such cases provided. The alleged right pertains to artificial waters, which, by petitioner's exertions and those of its grantors, have been produced and added to the natural flow of the stream as the result of the drainage of various mines in the Cripple Creek mining district, and which, after they reach the bed of the stream, were by it appropriated. This proceeding was conducted according to the statute. Some of the respondents appeared and denied petitioner's claims. A large volume of evidence was taken, and the court found in favor of petitioner and rendered a decree accordingly. Therefrom certain of the respondents have brought the case here by appeal.
The court specifically found, from the mass of evidence: That the petitioner was not a party to the former decree; that the waters in controversy were, by its exertions artificially produced as the result of draining mines, and by a tunnel discharged into the natural stream called 'Oil Creek,' or 'Four Mile Creek,' which is the appellants' source of supply, all of whose natural waters had previously been appropriated by them and others. The court found that such waters were subject to appropriation and had been first appropriated by the petitioner, after having been produced and raised to the surface, all of which had thus been contributed to the stream since the former statutory decree was rendered, and formed no part of its natural flow, and never would have come into the stream in any way had it not been for the efforts of petitioner, except to the extent of four cubic feet of water per second of time which is the amount of water which directly or indirectly, as the court found from the evidence, would naturally have reached the bed of the stream, had not the mines been drained. Since four cubic feet per second would have naturally found its way into the stream, had not the mines been drained, and since the court further found that, of the volume of additional water to which petitioner was entitled as it passed from the portal of the tunnel, 10 per cent thereof would be lost from evaporation, seepage, and other natural causes between the portal and the headgate of its ditch, petitioner was allowed to withdraw from the stream only 90 per cent. of all waters discharged from the tunnel, in excess of four cubic feet per second of time. Upon such findings, the court, in virtue of its contribution of artificial water to the stream, and the fact that in October, 1895, it made appropriation thereof before the rights of any other person attached decreed that petitioner has the exclusive...
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