Schilling v. Rominger

• Decision Date: 01 April 1878
• Citation: 4 Colo. 100
• Parties: SCHILLING et al. v. ROMINGER.
• Court: Colorado Supreme Court

4 Colo. 100

SCHILLING et al. v. ROMINGER.

Supreme Court of Colorado

April, 1878

Appeal from District Court of Saguache County.

THE complainant's bill states in substance:

That complainant on the 26th of June, 1874, settled upon the west half of north-west quarter, the south-east quarter of north-west quarter and the south-west quarter of north-east quarter of section twenty-one, township forty-five, north range 10, east New Mexican Meridian, as a homestead and that he has continued to reside thereupon. That theretofore on the 29th of April, 1874, the defendant Schilling settled upon the west half of south-east quarter and the east half-of south-west quarter of section twenty-one, township forty-five north, range 10 east New Mexican Meridian, adjoining complainant's lands, and that Schilling, the defendant continues to reside thereon. That the said land of defendant Schilling is occupied and cultivated by him and the defendant Albers as tenants in common. That in July, 1874, complainant and defendant Schilling and Albers agreed to construct an irrigating ditch from a point on Major creek, in said county of Saguache, four or five miles distant from their said lands, by the terms of which agreement the complainant was to have one-half of the water to be run in said ditch from said creek, and defendants Schilling and Albers the other half. That pursuant to said agreement, complainant and defendants Schilling and Albers constructed said ditch to and upon their said lands and thereby took all the available water from Major creek and prevented the same from wasting. That said Major creek is a small stream without more water than is necessary to irrigate the lands of complainant and defendants Schilling and Albers, and otherwise than from said creek their said lands are without irrigating facilities. That at the time of their said appropriation of the water of Major creek, the same was not owned or claimed by any other person than complainant and defendants Schilling and Albers. That on or about November 31, 1874, defendants E. W. Bennett and Ira S. Bennett settled upon lands over which said ditch was constructed, and knowing of the said appropriation of the water in Major creek on the 1st of June, 1876, they began to claim and use water from said creek and obstructing the flow of the water therein by shutting off the same and constructing other ditches from said creek, and now continue so to do, and, aided and encouraged by defendants Schilling and Albers, totally deprived complainant of the use of any part of said water. That complainant has planted upon his lands fifteen acres of oats which have failed to grow and mature by reason of the said interference, in consequence of which he has lost said crop and is damaged not less than $300. That complainant has applied frequently to said defendants, Schilling, Albers, E. W. and Ira S. Bennett, to allow him the use of the water in said ditch and to desist from further obstruction of the flow of the water therein, but confederating together to injure him, the said defendants refuse to allow him any part of said water, or to desist from obstructing the same in said ditch, and sometimes denying and at other times admitting the interest of complainant in the water of said ditch, but at same time deny and prohibit him by force and threats from the use of any part of said water; prays that defendants be decreed to make satisfaction to complainant for all damages done by them; that said defendants by injunction of said court be restrained from obstructing the flow of water in said ditch, and from using more than one-half of same and from interfering with complainants in the use and enjoyment of one-half of said water; that defendants be compelled to fill up the new ditches cut by them, and to re-open those made by complainant and defendants Schilling and Albers, and to restore them to same condition as when filled up by said defendants. Prays for writ of injunction therefor and for summons.'

The only material averment in the answer necessary to be inserted here is in reference to the agreement alleged in the bill and to which the defendant answered:

'That in July, 1874, complainant proposed to defendants Schilling and his tenant, Albers, that they vacate a portion of their said ditch, adjacent to said Major creek, and that complainant and defendants (Schilling and Albers) would take out a ditch near the mouth of the canon, two miles further up said creek, and by so doing they would furnish a new channel for the flow of said water and save the same from sinking as it did in the old bed of said creek; and by so doing they would have two heads of water reaching the said land of defendant Schilling. That it was agreed between defendants Schilling and Albers and the complainant, that if by so constructing said ditch there was not more water than was necessary to irrigate the lands of said Schilling, and for his domestic uses, then complainant would not claim any interest in either ditch or the water flowing therein.' And that the ditch was constructed in accordance with this agreement. Replication was filed and the cause was referred to a master to take proofs. Upon the coming in of the master's report, the cause was heard upon the bill, answer, replication and report, and a decree rendered in favor of the plaintiff in accordance with the prayer of the bill, and damages were awarded in the sum of $187.50. The defendants prayed an appeal. In this court the appellants assign for error: '1. That the agreement between the appellants and appellee was within the statute of frauds and void. 2. The decree is not sustained by the evidence taken before the master. 3. The court had no jurisdiction of the subject-matter.'

Mr. CHAS. W. TANKERSLY, for appellants.

Messrs. CHARLES & DILLON, and LOVE & VAN LIEW, for appellees.

STONE J.

That the first appropriator of the water of a natural stream has a prior right to such water, to the extent of his appropriation, is a doctrine that we must hold applicable, in all cases, respecting the diversion of water for the purpose of irrigation. Hence, the prior appropriation of the water of Major creek by Schilling, by the construction of the ditch for the irrigation of his land, secured to him a prior right to the use of such water to the extent of such appropriation. But when under a subsequent agreement with Rominger, the appellee, a new acequia was constructed by Schilling, Albers and Rominger, whereby all the water of the stream was appropriated at another point higher up the stream, for the purpose of procuring a greater supply of water, sufficient for all three, and upon the agreement that Rominger should share and enjoy the use of the water thus obtained in common with the other two, the prior right which had theretofore been acquired by Schilling and enjoyed by him and his co-tenant Albers, was waived by them, and a new right then accrued to the parties simultaneously, to use the water in common to the full extent of their joint appropriation. The right thus acquired by the appellee accrued to him in virtue of the joint acts of the parties in thus appropriating the water whereby they acquired a common right unaffected by the statute of frauds, inasmuch as such right is not only given by statute, but in a country with a climate like ours, this right arises ex necessitate rei, and hence the statute may be regarded as declaratory merely of the law of necessity in this respect, and as regulating the right thus acquired. Yonker v. Nichols, 1 Col. 551.

If Schilling and Rominger had both settled on the stream at the same time, and for mutual advantage in the saving of expense had, by agreement, constructed the ditch together, and thus appropriated the water jointly for irrigating their respective lands, it certainly could not be contended that the respective rights to the water thus acquired could be asserted by either as against the other, on the ground that the mutual assent or agreement to thus appropriate the water was not in writing. So in this case, there was no more a license or grant from one than from the other. Schilling could abandon his first acequia and waive his right of prior appropriation as effectually by words and acts...