Strickler v. City of Colorado Springs

• Decision Date: 03 April 1891
• Citation: 16 Colo. 61,26 P. 313
• Parties: STRICKLER v. CITY OF COLORADO SPRINGS.
• Court: Colorado Supreme Court

26 P. 313

16 Colo. 61

STRICKLER v. CITY OF COLORADO SPRINGS.

Supreme Court of Colorado

April 3, 1891

Error to district court, El Paso county.

This is an agreed case submitted for decision without suit, under chapter 24 of the Code. The section permitting the submission reads as follows: 'Parties to a question in difference which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought; but it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment thereon, as if an action were depending.' Section 278, Code 1887. The present controversy has reference to an attempted increase by the city of Colorado Springs of its water supply, such increase becoming necessary on account of the growth of the city; the city being about to purchase from the owners of water-rights for agriculture such rights, to the end that the water may be diverted to the use of the city. The plaintiff a citizen and tax-payer of the city, and an owner of a water-right for irrigation purposes upon Fountain creek hereinafter mentioned, seeks to restrain the city authorities from its contemplated action. The agreed statement of facts is as follows: '(1) That the defendant is a municipal corporation, being a city of the second class of this state and has and maintains a system of water-works for the purpose of furnishing, and through which it furnishes, its inhabitants with water. (2) That the plaintiff is a citizen and tax-payer of the city of Colorado Springs, and an owner of a water-right for irrigation purposes, upon the Fountain creek, hereinafter mentioned, that is prior in right to any appropriation of water made by the defendant, and which is impaired by the defendant's appropriations of water. (3) That heretofore, in the year 1878, defendant constructed a pipe-line and reservoir, and supplied and still supplies them with water, from Ruxton creek, above the town of Manitou; and that in the year 1889, to supply the increased wants of its inhabitants, defendant greatly enlarged the capacity of said pipe-line, reservoir and water-works system, and to supply them now requires about * * * million gallons of water daily and exceeding the flow of water in said Ruxton creek; that the waters of the Ruxton and the Fountain creeks flow together in the town of Manitou, and that the waters of said creeks at their junction are naturally of about equal volume; that said Ruxton creek is about five miles in length, and is fed and formed by a number of streams coming together above the place of intake of defendant's pipe-line, all of which is substantially shown by the map here with filed. (4) That defendant has, for the purpose of supplying its said water-works, the first priority of water-rights upon said Ruxton creek, but that there are upon the Fountain creek, below the point where said Ruxton creek and Fountain creek flow together, a great number of water-rights for irrigation and ranch purposes, prior to defendant's right, upon said Ruxton creek, sufficient to take all the waters of Fountain creek, after receiving the waters of Ruxton creek. (5) That defendant takes, and will continue to take, for its said use, substantially all of the waters of Ruxton creek, so that no water of Ruxton creek will reach Fountain creek. (6) That, in addition to the said pipe-line, said defendant is the owner of a certain ditch or canal, known as the 'El Paso County Canal,' which takes water directly from the said Fountain creek, for the use of its inhabitants. (7) That defendant requires both the said pipe-line and the said ditch to furnish the necessary supply of water for the use of its inhabitants. (8) That the water taken from Ruxton creek aforesaid, through defendant's pipe-line, is continuously used by its inhabitants, through its hydrants, for culinary, drinking, general household purposes, sprinkling lawns and streets, in business houses, livery stables, etc., while the water taken through said ditch or canal is used by defendant to irrigate lawns, parks, trees upon its streets, small gardens, truck patches, etc., continuously from April to October of each year. (9) That the defendant's said ditch was by the district court of El Paso county, in the year 1882, in the adjudication of the priorities of water-rights of water district No. 10, adjudicated to be No. 32, and said original pipe-line was then in like manner adjudicated to be No. 1 on Ruxton creek, and that there are 31 appropriations of water upon said Fountain creek that are prior to the defendant's said ditch, which are of capacities sufficient, in times of scarcity, to take all of the waters of said creek for agricultural purposes; so that, in order that defendant have the use of water when it needs it, it must to a great extent interfere with said appropriations that are prior to its ditch and pipe-lines, and including the said water-rights of plaintiff. (10) That the defendant has continuously, including the months from April to October of each year, since the year 1871 to the present year, taken from the waters of said Fountain creek, through its said El Paso county canal, water to the capacity of said canal; and also has taken continuously, through its said original pipe-line, of the water of said Ruxton creek, continuously since the year 1878, waters to the full capacity of said original pipe-line, claiming it had a right so to do; and though the plaintiff and other prior appropriators of water of said Fountain creek have been to a greater or less degree, for and during each of said periods, injuriously affected thereby, they have failed to object thereto, and to assert any prior rights of appropriation he or they had to the water so taken by the defendant; yet said persons, including the plaintiff, now claim damages therefor of the defendant, and the full amount of their respective original appropriations, without diminution of the amounts so taken and appropriated by the defendant, which defendant will pay to them unless enjoined by this court. (11) That many of the persons holding priorities upon said Fountain creek over the defendant, and who are injuriously affected by defendant's said appropriation of water, do not take, and never have taken, through their respective canals or ditches, water to the amount decreed to them in and by the decree aforesaid, because either that their said ditches are not of sufficient capacity to carry such decreed appropriation, or that sufficient water has not been contained in the said creek to supply the amounts so decreed, or that such person has not had under cultivation sufficient land to receive such decreed amount of water; yet, nevertheless, such persons demand of the defendant damages upon the full decreed amount of their respective appropriations, and, unless restrained by this honorable court, the defendant will settle their damages upon such basis. (12) That the defendant has been negotiating for and is about to purchase some of the water-rights for agricultural irrigation purposes that are prior to the defendant's ditch and pipe-line, with the view of taking the water belonging to such prior water-rights, through its said ditch and pipe-line, for the use of its inhabitants. (13) That defendant is about to negotiate for such of said water-rights as are prior to its pipe-line and its ditch, under and pursuant to subdivision 73 of section 3312 of the General Statutes, upon the basis that such priorites as it so settles for, either by consent or condemnation, deprives such prior appropriator of all his right, title, claim, and priority in and to the waters of said Fountain creek, and by such settlement defendant will pay to such prior appropriators sums of money greatly in excess of what it would pay by settling with such prior appropriators upon the basis that by such settlement or condemnation the said rights remain intact, subject only to diminution to the extent of defendant's uses.' Plaintiff prays that defendant be enjoined from purchasing water-rights from said Fountain creek, etc., and for general relief. The court below, upon a final hearing, denied the relief sought by the plaintiff, and entered judgment accordingly.

Syllabus by the Court

1. The fundamental principle of our system of water-rights is that priority in point of time gives superiority of right among appropriators for like beneficial purposes.

2. The rights of a prior appropriator from a stream cannot be impaired by subsequent appropriations of water from its tributaries.

3. A prior appropriator of water from a stream may change the point of diversion and the place of use without losing his priority, provided the rights of others are not injuriously affected by such change.

4. A priority to the use of water for irrigation is a property right, and may be sold and transferred separately from the land in connection with which the right ripened.

5. Rights acquired to the use of water for irrigation, prior to the adoption of our state constitution, cannot be taken by a city for the domestic use of its inhabitants, without compensation.

6. The provisions of the constitution operate prospectively only, unless a contrary intention clearly appears from the words employed.

T. A. McMorris, for plaintiff in error.

Wm. Harrision, for defendant in error.

HAVT, J., ( after stating the facts as above.)

The points upon which a decision is asked, as given upon the oral argument, may be stated as follows: (1) Are the rights of a junior appropriator of water from a...