Thomas v. Guiraud

Citation6 Colo. 530
Case DateApril 01, 1883
CourtSupreme Court of Colorado

6 Colo. 530

THOMAS
v.
GUIRAUD ET AL.

Supreme Court of Colorado

April, 1883


[6 Colo. 531]

Error to District Court of Park County.

THE facts are sufficiently stated in the opinion.

Mr. A. W. BRAZEE and Mr. WEBSTER BALLINGER, for plaintiff in error.

Mr. C. A. WILKIN and Mr. R. D. THOMPSON, for defendants in error.

HELM, J.

The pleadings and evidence in this case fairly sustain the following conclusions of fact, viz.: That in 1862, Adolph Guiraud, ancestor of defendants in error, settled upon lands adjacent to Trout creek; that by means of dams and other contrivances, he then turned or diverted water from said stream sufficient to irrigate a portion of said lands, and cultivated hay and other crops thereon; that during or before the year 1870, he made a second diversion of water by means of a ditch, and cultivated another tract of land therewith; that these diversions included all of the water ordinarily flowing in said stream, but were not greater in quantity than was reasonably necessary for the purpose designed; and that they have been continued since the dates thereof, either by said Guiraud or by defendants in error, who are his heirs at law; that in August, 1873, plaintiff in error begun the construction of a ditch above the said lands of defendants in error, and in May, 1874, completed the same and diverted water from Trout creek therethrough for the purpose of irrigating lands claimed by him under a preemption filing; that said lands were not upon Trout creek, but were adjacent to another stream.

That in the year 1879, plaintiff in error was diverting through his ditch aforesaid from one-half to two-thirds of the whole volume of water in Trout creek; that defendants in error were unable to procure water from said stream to the extent of their ancestor's diversion thereof, and in consequence were damaged and were threatened with irreparable injury. [6 Colo. 532]

We have recently held that the doctrine of priority of right to water by priority of appropriation thereof for a beneficial purpose, with the modifications declared in the constitution, is and always has been in force in this state. We have also decided that the locus of its application does not in any way affect the doctrine; and that a prior appropriator of water is entitled to it as against a subsequent settler upon the stream from which it is taken, although he carries it over an intervening divide and uses it to cultivate lands adjacent to another...

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32 practice notes
  • Campbell v. Wyoming Development Co., 2141
    • United States
    • United States State Supreme Court of Wyoming
    • March 12, 1940
    ...by the record in this case on behalf of plaintiffs. An appropriation may be made without constructing a ditch. Thomas v. Guiraud, 6 Colo. 530; Hagie v. Lincoln Land Company, 18 F.Supp. 637; Snyder v. Colorado Gold Dredging Co., 181 F. 62; Simons v. M & P Co. (Cal.) 192 P. 144; Steptoe Lives......
  • Application A-16642, In re, A-16642
    • United States
    • Supreme Court of Nebraska
    • November 30, 1990
    ...to point to earlier cases which indicated that the need to divert was not of constitutional import. Id., citing Thomas v. Guiraud et al., 6 Colo. 530 (1883), and Larimer Co. R. Co. v. People ex rel., 8 Colo. 614, 9 P. 794 (1885) (Thomas involved a dam which caused overflow irrigation of a m......
  • State of Wyoming v. State of Colorado, No. 3
    • United States
    • United States Supreme Court
    • June 5, 1922
    ...it. Yunker v. Nichols, 1 Colo. 551; Schilling v. Rominger, 4 Colo. 100; Coffin v. Left Hand Ditch Co., 6 Colo. 443; Thomas v. Guiraud, 6 Colo. 530; Strickler v. Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am. St. Rep. 245; Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 Pac. 854; Wy......
  • IN RE ADJUD. OF EXIST. RIGHTS TO USE WATER, No. 00-100.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 24, 2002
    ...touchstone of the appropriation doctrine. See, e.g., A. Stone, Selected Aspects of Montana Water Law 30 (1978); Thomas v. Guiraud (1883), 6 Colo. 530, 533 ("[t]he true test of appropriation of water is the successful application thereof to the beneficial use designed, and the method of dive......
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32 cases
  • Campbell v. Wyoming Development Co., 2141
    • United States
    • United States State Supreme Court of Wyoming
    • March 12, 1940
    ...by the record in this case on behalf of plaintiffs. An appropriation may be made without constructing a ditch. Thomas v. Guiraud, 6 Colo. 530; Hagie v. Lincoln Land Company, 18 F.Supp. 637; Snyder v. Colorado Gold Dredging Co., 181 F. 62; Simons v. M & P Co. (Cal.) 192 P. 144; Steptoe Lives......
  • Application A-16642, In re, A-16642
    • United States
    • Supreme Court of Nebraska
    • November 30, 1990
    ...to point to earlier cases which indicated that the need to divert was not of constitutional import. Id., citing Thomas v. Guiraud et al., 6 Colo. 530 (1883), and Larimer Co. R. Co. v. People ex rel., 8 Colo. 614, 9 P. 794 (1885) (Thomas involved a dam which caused overflow irrigation of a m......
  • State of Wyoming v. State of Colorado, No. 3
    • United States
    • United States Supreme Court
    • June 5, 1922
    ...it. Yunker v. Nichols, 1 Colo. 551; Schilling v. Rominger, 4 Colo. 100; Coffin v. Left Hand Ditch Co., 6 Colo. 443; Thomas v. Guiraud, 6 Colo. 530; Strickler v. Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am. St. Rep. 245; Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 Pac. 854; Wy......
  • IN RE ADJUD. OF EXIST. RIGHTS TO USE WATER, No. 00-100.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 24, 2002
    ...touchstone of the appropriation doctrine. See, e.g., A. Stone, Selected Aspects of Montana Water Law 30 (1978); Thomas v. Guiraud (1883), 6 Colo. 530, 533 ("[t]he true test of appropriation of water is the successful application thereof to the beneficial use designed, and the method of dive......
  • Request a trial to view additional results

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