Snyder v. Colorado Gold Dredging Co.

• Citation: 181 F. 62
• Decision Date: 04 August 1910
• Docket Number: 2,928.
• Parties: SNYDER v. COLORADO GOLD DREDGING CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

181 F. 62

SNYDER v. COLORADO GOLD DREDGING CO. ^[1]

No. 2,928.

United States Court of Appeals, Eighth Circuit.

August 4, 1910

Syllabus by the Court.

In Colorado, the common-law doctrine in respect of the rights of riparian proprietors never has obtained, and in its stead there was adopted the doctrine of appropriation which regards the waters of all natural streams as subject to appropriation and diversion for beneficial uses and treats priority of appropriation and continued beneficial use as giving the prior and better right.

In choosing between the doctrine of riparian rights and that of appropriation, Colorado acted within the limits of her authority, first as a territory and then as a state, and her choice was recognized and sanctioned by Congress, so far as the public lands were concerned.

When a water right and a ditch right connected therewith are acquired while the lands embracing the point of diversion and a portion of the ditch are public lands, those rights are not affected by the subsequent location, entry, and patenting of such lands.

What constitutes a valid appropriation of water to beneficial uses is a question of local law, and by the law of Colorado the location of a riparian gold placer claim is not in itself such an appropriation, for the actual application of the water to a beneficial use is the true test of appropriation.

In so far as the rights and incidents of riparian proprietorship are concerned, conveyances by the United States of public lands on nonnavigable streams and lakes, when it is not provided otherwise, are to be construed and have effect according to the law of the state in which the lands are situate; and by the law of Colorado a conveyance of riparian land, even if it be a gold placer claim, does not carry any right to the unappropriated waters of the stream.

The right to appropriate the waters of a stream does not carry with it the right to burden the lands of another with a ditch for the purpose of diverting the waters and carrying them to the place of intended use, for that cannot be done without a grant from the landowner or a lawful exercise of the power of eminent domain.

An easement for a ditch used in diverting and carrying water covered by an existing appropriation does not carry with it any right to enlarge the ditch, or to change its location or to use it in diverting and carrying a largely increased volume of water under a later appropriation, but is limited to the maintenance and use of the ditch, substantially as then constructed, for the purpose of utilizing the existing appropriation.

An increased appropriation of water which is initiated and maintained by an unlawful trespass upon the lands of another in the nature of an unauthorized enlargement of an existing ditch, is of no validity against him whose property is the subject of the trespass.

E. T Wells (W. A. Guyselman, on the brief), for appellant.

William V. Hodges (Clayton C. Dorsey, on the brief), for appellee.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WILLIAM H. MUNGER, District Judge.

VAN DEVANTER, Circuit Judge.

This is an appeal from an interlocutory order granting an injunction and the ex parte affidavits and other proofs upon which the order was granted show that the case is as follows: The Colorado Gold Dredging Company, spoken of as the plaintiff, is the owner of certain placer mining claims along the Swan river, a small nonnavigable mountain stream in Summit county Colorado, and Charles M. Snyder, spoken of as the defendant, is in possession of and has the right to mine and to purchase certain other placer mining claims, including one called the Mascot, higher up the same stream. These latter claims are owned by E. T. Wells and it is through a contract with him, made in 1907, that the defendant's rights in them were acquired. The Mascot embraces the bed of the Swan river and some of the valley land on either side. It probably was located in 1870, was entered by Wells at the local land office in 1895, and was patented to him in 1898. Prior to its location-- that is, while it was still public land-- a ditch, called the Galena, was constructed from a point on the Swan river well within the limits of the claim to a point lower down the valley and for several years a portion of the waters of the river was diverted therefrom and carried through this ditch to the vicinity of the claims first mentioned where it was used in mining operations. Some of the proofs strongly suggest that this ditch and water right were abandoned before Wells' entry at the local land office, but it will be assumed, for present purposes only, that their abandonment is not established. After the issuance of the patent to Wells, the North American Gold Dredging Company, claiming to be the owner of the old ditch and the water right acquired thereby, materially enlarged and partially reconstructed the ditch, including the portion upon the Mascot, and since then that company and its successors in title, the American Gold Dredging Company and the plaintiff, have carried through the ditch at irregular intervals a greatly increased portion of the waters of the river, and have used the same in mining operations on the claims now owned by the plaintiff. Wells had no knowledge of the enlargement and reconstruction of the ditch until after the work was done, has not consented thereto or acquiesced in the enlarged use of the ditch, and has not been compensated in any wise for the enlarged taking and use of his land.

At the hearing upon the application for the injunction, the plaintiff claimed something by reason of another old ditch, called the Delaware, but counsel for the plaintiff now say:

'The Delaware ditch need not be considered at all. For the purposes of this argument we will admit that the Delaware ditch is abandoned.'

After acquiring an interest in the Mascot, the defendant, for the purpose of working the claim and extracting the placer gold therein, as authorized by his contract with Wells, began the construction within the limits of the claim of a tunnel along and under the bed of the Swan river in the direction of the head of the Galena ditch. The tunnel is nearly parallel to the ditch, is over 120 feet distant therefrom, and has some tendency, by reason of the induced seepage through the adjacent porous soil, to diminish the natural superficial flow of the river and to lessen the amount of water which can be diverted therefrom by the ditch as enlarged and reconstructed. But this tendency, according to the present proofs, is not sufficient to justify the belief that the tunnel does now or ever will interfere with or injuriously affect the enjoyment of the water right acquired through the original construction and use of the ditch.

The injunction granted by the interlocutory order challenged by this appeal is directed against the prosecution of the work upon this tunnel, and the question to be considered is: Was the injunction improvidently granted? The common-law doctrine in respect of the rights of riparian proprietors in the waters of natural streams never has obtained in Colorado. From the earliest times in that jurisdiction the local customs, laws, and decisions of courts have united in rejecting that doctrine and in adopting a different one which regards the waters of all natural streams as subject to appropriation and diversion for beneficial uses and treats priority of appropriation and continued beneficial use as giving the prior and superior right. Yunker v. Nichols, 1 Colo. 551; Coffin v. Left Hand Ditch Co. 6 Colo. 443, 447; Platte Water Co. v. Northern Colo. Irrigation Co., 12 Colo. 525, 531, 21 P. 711; Crippen v. White, 28 Colo. 298, 64 P. 184. In so choosing between these inconsistent doctrines, Colorado acted within the limits of her authority, first as a territory and then as a state, and her choice was recognized and sanctioned by Congress, so far as the public lands of the United States were concerned. United States v. Rio Grande Irrigation Co., 174 U.S. 690, 702-706, 19 Sup.Ct. 770, 43 L.Ed. 1136; Gutierres v. Albuquerque Land & Irrigation Co., 188 U.S. 545, 552-554, 23 Sup.Ct. 338, 47 L.Ed. 588; Clark v. Nash, 198 U.S. 361, 370, 25 Sup.Ct. 676, 49 L.Ed. 1085; Kansas v. Colorado, 206 U.S. 46, 94, 27 Sup.Ct. 655, 51 L.Ed. 956; Boquillas Land & Cattle Co. v. Curtis, 213U.S. 339, 29 Sup.Ct. 493, 53 L.Ed. 822.

Congress also by its first enactment upon the subject, now embraced in Rev. St. Sec. 2339 (U.S. Comp. St. 1901, p. 1437), granted the right of way over the public lands for ditches employed in so appropriating and applying water to beneficial uses, and by another enactment, now embraced in Rev. St. Sec. 2340 (U.S. Comp. St. 1901, p. 1437), declared that all patents subsequently issued for public lands should be subject to any vested rights to such ditches.

As the Mascot placer was still public land when the Galena ditch originally was constructed thereover and was made the means of diverting and applying to a beneficial use a portion of the waters of Swan river, and as there is no suggestion of any prior conflicting appropriation, it is altogether plain that, to the extent of that diversion and use, a valid appropriation of those waters was effected thereby, and that coincidently there was acquired the right to maintain and use the ditch, substantially as then constructed, for the purpose of continuing that diversion and use. And it is equally plain that neither the right to the use of the water nor that to the use of the ditch was lost or diminished by the subsequent location, entry, and patenting of the Mascot. If these rights were not abandoned and now are held by the plaintiff, it is entitled to have them recognized and protected by an injunction if necessary; but...