Sternberger v. Seaton Mountain Elec. Light, Heat & Power Co.

• Decision Date: 05 April 1909
• Citation: 102 P. 168,45 Colo. 401
• Parties: STERNBERGER et al. v. SEATON MOUNTAIN ELECTRIC LIGHT, HEAT & POWER CO.
• Court: Colorado Supreme Court

102 P. 168

45 Colo. 401

STERNBERGER et al. v. SEATON MOUNTAIN ELECTRIC LIGHT, HEAT & POWER CO.

Supreme Court of Colorado

April 5, 1909

Rehearing Denied June 7, 1909.

Appeal from District Court, Clear Creek County; A. H. De France Judge.

Action by Samuel Sternberger and another against the Seaton Mountain Electric Light, Heat & Power Company. Judgment for defendant and plaintiffs appeal. Affirmed.

Hersey & Ponsford, for appellants.

E. M Sabin and J. B. Hutchinson, for appellee.

CAMPBELL J.

The object of this action is to enjoin defendant from diverting the waters of South Clear creek, a natural stream. Plaintiffs are owners of land through which, they say, the waters of the stream have hitherto always been accustomed to flow in their natural channel, until defendant, by its wrongful acts, diverted them into an artificial course. Before defendant's rights, if any, accrued, plaintiffs' grantor acquired by patent the lands from the United States government under the public land laws of Congress as of date July 1, 1868, while our territorial form of government was in existence and before the formation of our state. Plaintiffs do not claim that they or their grantor ever made an appropriation of water from the stream for any purpose reconized as lawful under the laws of this state, and their complaint contains no such statement. True, that pleading recites that the waters were at one time used in placer mining; but it also states that such use has long since been abandoned, and while there is another, but defective, averment that a diversion was once made for the purpose of irrigating their agricultural lands, plaintiffs in no way connect themselves, either as appropriators or grantees of the appropriators, with either of such uses. Not only from the complaint, but from the briefs of plaintiffs' counsel, it is entirely clear that they relied below solely upon their assumed common-law rights as riparian owners, which, since title thereto was acquired anterior to the adoption of our state Constitution and before the appropriation of defendant was made, they assert are superior to the latter. We are entirely satisfied that the sole question argued and submitted to the trial court by counsel on both sides was whether the common-law doctrine of continuous flow under the facts disclosed by this record exists in Colorado. At this late day it would seem to us, as it evidently did to the trial court, idle to make such contention in this state. The matter has long ago been set at rest. The authorities relied upon by plaintiffs are those which sustain the so-called California doctrine, first clearly and definitely announced by the Supreme Court of California in Lux v. Haggin, 69 Cal. 255, 4 P. 919, 10 P. 674, in which, inter alia, it was held that the common law as to riparian ownership was not abolished by any law of that state, but still existed there side by side with the doctrine of appropriation. The states whose courts accept, and those whose tribunals reject, the California doctrine, and adhere to the so-called Colorado rule, are enumerated, and the various decisions collated in Water Rights in the Western States by Weil at sections 16 and 17. The Supreme Court of the United States in several cases has approved and indicated its satisfaction with the decisions of the state courts which hold that the common-law doctrine has been abolished and has said that each state, without interference by the federal courts, may for itself, and as between rival individual claimants, determine which doctrine shall be therein enforced. Atchison v. Peterson, 20 Wall. 507, 22 L.Ed. 414; Basey v. Gallagher, 20 Wall. 670, 22 L.Ed. 452; U.S. v. Rio Grande, etc., Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136; Clark v. Nash, 198 U.S. 361, 370, 25 S.Ct. 676, 49 L.Ed. 1085; Kansas v. Colo., 206 U.S. 46-94, 27 S.Ct. 655, 51 L.Ed. 956.

There is no departure therefrom in Hartman v. Tresise, 36 Colo. 146, 84 P. 685, 4 L.R.A. (N. S.) 872. Under the facts of that case, in a controversy between one who asserted a private, and one who relied on a public right of fishery in the waters of this state, it was held that the right of the former was superior; but the court expressly recognized that both such rights yielded to the superior right of appropriation as it has existed in this state from the beginning, saying: 'As between those claiming either a public or private right of fishery in our natural streams and those asserting the superior constitutional right of appropriation, the latter in case of conflict must prevail.' The doctrine in this state, that the common-law rule of continuous flow of natural streams is abolished, is so firmly established by our Constitution, the statutes of the territory, and the state, and by many decisions of this court that we decline to reopen or reconsider it, however interesting discussion thereof might otherwise be, and notwithstanding its importance. Perhaps the leading case in this state is Coffin v. Left Hand Ditch Co., 6 Colo. 443. Others to like effect are Thomas v. Guiraud, 6 Colo. 530; Crippen v. White et al., 28 Colo. 298, 64 P. 184. A recent case--Willey v. Decker, 11 Wyo. 496, 73 P. 210, 100 Am.St.Rep. 939--is in harmony with the Colorado doctrine, and therein Potter, Justice, in an able and exhaustive opinion reviews the important cases from the various states and territories.

At the oral argument plaintiffs were represented by counsel whose first appearance in the cause was then entered. Doubtless perceiving that to uphold plaintiffs' cause of action as made by their complaint and as tried and submitted below would necessitate the reversal of an unbroken line of decisions of this court from the beginning to the present time, result in tearing up, root and branch, the statute law of the territory and of the state, and the nullification of the provisions of the Constitution itself on the subject of appropriation, this counsel advances the theory that if all the allegations of the complaint relating to...