Town of Sterling v. Pawnee Ditch Extension Co.

• Decision Date: 02 March 1908
• Citation: 94 P. 339,42 Colo. 421
• Parties: TOWN OF STERLING et al. v. PAWNEE DITCH EXTENSION CO.
• Court: Colorado Supreme Court

94 P. 339

42 Colo. 421

TOWN OF STERLING et al. v. PAWNEE DITCH EXTENSION CO.

Supreme Court of Colorado, En banc.

March 2, 1908

Error to District Court, Logan County; E. E. Armour, Judge.

Petition by the Pawnee Ditch Extension Company against the town of Sterling and another. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions.

Munson & Munson and Allen & Webster, for plaintiffs in error.

Geo. E. McConley and H. P. Burke, for defendants in error.

GABBERT J.

Defendant in error, plaintiff in the court below, brought suit against the plaintiffs in error, as defendants, the purpose of which was to quiet title of plaintiff in appropriations of water which it claimed to have made for domestic and irrigation uses, and for an injunction against the defendants to restrain them from diverting for their use, or interfering in any manner with such appropriations, to the injury of plaintiff. To the complaint filed the defendants interposed a demurrer upon three grounds: (1) Want of jurisdiction of the court of the subject-matter of controversy; (2) that the complaint did not state a cause of action; and (3) that there was a defect of parties plaintiff because the consumers of water through plaintiff's ditch were not joined with plaintiff as parties plaintiff in the action. This demurrer was overruled. The defendants elected to stand thereon, and judgment was rendered for plaintiff. The defendants bring the cases here for review on error.

In substance, the complaint states that plaintiff is a corporation duly organized and existing under the laws of this state; that it owns, controls, and operates an irrigating ditch known as the 'Extension of the Pawnee Ditch'; that this ditch is used for the purpose of carrying and distributing water for irrigation and domestic purposes to the members of its company who own land under it and are consumers of the water so carried and distributed that the town of Sterling is a municipal corporation organized and existing under the laws of this state; that the ditch in question was constructed by the predecessors in interest of plaintiff from a point on the west side of Springdale creek at the terminus of another ditch known as the 'Pawnee'; that the work of construction was begun on May 26, 1898, and thereafter carried on with diligence until completed. The dimensions of the ditch are given; it being alleged that its carrying capacity is 25 cubic feet per second of time, and that the water conducted through such ditch from the date of its completion has been applied to the irrigation of lands lying thereunder, and used by the owners of such lands for domestic purposes continuously since that time. It is alleged that the source of supply for this ditch is the surplus water of Pawnee ditch and the waters of Springdale creek, which are diverted at the point where it intersects this creek. This creek, it is alleged, is a natural water course, supplied by springs which rise about one mile above the point of the intake of plaintiff's ditch, and flow approximately 200,000 gallons of water each 24 hours. It is also alleged that the water thus appropriated in connection with the surplus waters of Pawnee ditch is not more than sufficient to supply the needs of the consumers under plaintiff's ditch for domestic and irrigation uses; that during the season from October 1st to May 1st the entire supply of such ditch is derived from the springs above mentioned, and that the supply thus obtained is not enough to furnish the consumers through plaintiff's ditch with water sufficient for their domestic needs during that period; and that during the remainder of each season the water in controversy is utilized by such consumers for domestic and irrigation purposes. It then charges that the town of Sterling has recently purchased the lands upon which springs supplying Springdale creek rise, and has commenced to construct a system of waterworks to supply the inhabitants of the town with water, the intention being to take its supply from these springs, and convey it by means of a pipe line about six miles in length, that being approximately the distance the town is situate from the springs. No argument is made on behalf of defendants in support of the ground of demurrer to the effect that the court was without jurisdiction of the subject-matter of controversy, and we shall pass that question without discussion.

In support of the claim that the complaint does not state facts sufficient to constitute a cause of action, counsel for defendants advances these propositions: (1) That the town of Sterling, by virtue of the laws of the state, is entitled to appropriate the waters of Springdale springs without compensating plaintiff. (2) That, as the consumers under plaintiff's ditch are not riparian owners, they have no right to divert water through the ditch to supply their domestic needs. (3) That it does not appear from the complaint that consumers under plaintiff's ditch have any benefit of the water in controversy during the season beginning October 1st and ending May 1st, and is otherwise deficient in failing to state facts from which an appropriation can be deduced. (4) It does not appear from the allegations of the complaint that the town has not commenced proceedings to condemn the water in question, or has not acquired the right to appropriate such water by consent of residents on the stream whose rights would be materially affected by such appropriation. By subdivision 73, § 4403 Mills' Ann. St., towns are authorized to take water in sufficient quantity from any stream or spring to supply the domestic needs of its inhabitants, provided 'that if the taking of such water in such quantity shall materially interfere with, or impair, the vested right of any person or persons, or corporation, heretofore acquired residing upon such creek, gulch, or stream, or doing any milling or manufacturing business thereon, they shall first obtain the consent of such person or persons, or corporation, or acquire the right of domain by condemnation, as prescribed by the Constitution and laws upon that subject, and make full compensation or satisfaction for all the damages thereby occasioned to such person or persons, or corporation.' This statute went into effect July 3, 1877; and, as we understand the argument of counsel for the town, it is urged that, inasmuch as the rights of plaintiff did not attach to the water in controversy until 1898, its rights were acquired subject to the right of the town to appropriate and divert the water of Springdale springs, and without compensating plaintiff. If the statute in question is susceptible of such a construction, then it is clearly unconstitutional. Section 6, art. 16, Const., states that those using water for domestic purposes shall have the preference over those claiming for any other purpose, but this provision does not entitle one desiring to use water for domestic purposes as intended by the defendant town of Sterling to take it from another who has previously appropriated it for some...