Rominger v. Squires

• Decision Date: 12 November 1886
• Citation: 9 Colo. 327,12 P. 213
• Parties: ROMINGER v. SQUIRES.
• Court: Colorado Supreme Court

12 P. 213

9 Colo. 327

ROMINGER v. SQUIRES.

Supreme Court of Colorado

November 12, 1886

Appeal from district court, Saguache county.

Arthur & Vosburg, for appellant Rominger.

E F. & C. A. Allen, for appellee, Squires.

ELBERT J.

We have carefully examined and considered the evidence in this case and are of the opinion that it does not warrant the decree rendered. The three owners of what is called the 'Saalfeldt Ditch,' and the four owners of what is called the 'Wittmayer Ditch,' entered into a contract in 1874 to construct what is called the 'New Ditch,' which was to supersede, either in whole or in part, the two old ditches as a water-way, by means of which their respective lands were to be irrigated. The terms and extent of this contract were the leading questions in the trial below. The court found, in substance that it was an agreement that each of the parties to the contract (except Zeibig) was to own one-seventh of the ditch and one-seventh of the water to be conveyed through it. Zeibig, as representing two water-rights in the old ditches, was to have two-sevenths in the new ditch, and two-sevenths of the water. This view of the agreement was the basis of the decree adjusting the rights of the plaintiff and defendant, who held as grantees of parties to the agreement. This finding is undoubtedly correct as to the rights the respective parties were to have in the new ditch, as a water-way. With respect to the division of water, however, we think it plainly against the weight of evidence. The weight of evidence is to the effect that nothing was said, in the agreement to construct the new ditch, about the division of the water; that each party was to bring through the new ditch the water which he claimed to have theretofore appropriated and used in the old ditches; that, while the agreement provided for a change of the water-way, it in nowise contemplated or provided for a change of water-rights. Having reference to their rights in the old ditches, the evidence shows priority of appropriation on the part of several of the original constructors of the new ditch, and, among others, Saalfeldt, the grantor of the defendant, Rominger. Water-rights in this state, where agriculture is almost exclusively carried on by means of irrigation, are valuable properties. In this case the stream from which the water was taken was small, and a scarcity of water therein for the purpose of irrigation was by...