Wheeler v. Northern Colorado Irr. Co.

• Decision Date: 04 January 1888
• Citation: 17 P. 487,10 Colo. 582
• Parties: WHEELER v. NORTHERN COLO. IRRIGATING CO.
• Court: Colorado Supreme Court

17 P. 487

10 Colo. 582

WHEELER v. NORTHERN COLO. IRRIGATING CO.

Supreme Court of Colorado

January 4, 1888

Appeal from district court, Arapahoe county.

Mandamus proceeding. Appellant, Byron A. Wheeler, as relator, instituted mandamus proceedings in the court below to compel the respondent company to furnsih him water for irrigation. Respondent demurred to the alternative writ. The demurrer was sustained, and judgment entered in its favor. From this judgment the present appeal was taken. The following constitutional and statutory provisions are considered, or referred to in the opinion:

CONSTITUTION ART. XVI.

'Sec 5. The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.

'Sec 6. The right to divert unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but, when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes.

'Sec 7. All persons and corporations shall have the right of way across public, private, and corporate lands for the construction of ditches, canals, and flumes, for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.

'Sec. 8. The general assembly shall provide by law that the board of county commissioners, in their respective counties, shall have power, when application is made to them by either party interested, to establish reasonable maximum rates to be charged for the use of water, whether furnished by individuals or corporations.'

GENERAL STATUTES.

'Sec. 311. Any company constructing a ditch under the provisions of this act shall furnish water to the class of persons using the water in the way named in the certificate, in the way the water is designated to be used, whether miners, mill-men, farmers, or for domestic use, whenever they shall have water in their ditch unsold, and shall at all times give the preference to use of the water in said ditch to the class named in the certificate; the rates at which water shall be furnished to be fixed by the county commissioners as soon as such ditch shall be completed and prepared to furnish water.'

'Sec. 1740. Any person or persons, acting jointly or severally, who shall have purchased and used water for irrigation of lands occupied by him, her, or them, from any ditch or reservoir, and shall not have ceased to do so for the purpose or with intent to procure water from some other source of supply, shall have the right to continue to purchase water to the same amount for his, her, or their lands on paying or tendering the price thereof fixed by the county commissioners as above provided, or, if no price shall have been fixed by them, the price at which the owners of such ditch or reservoir may be then selling water, or did sell water during the then last preceding year. This section shall not apply to the case of those who may have taken water as stockholders or shareholders after they shall have sold or forfeited their shares of stock, unless they shall have retained a right to procure such water by contract, agreement, or understanding, and use between themselves and the owners of such ditch, and not then to the injury of other purchasers of water from or shareholders in [the] same ditch.'

W. F. Stone, L. C. Rockwell, C. W. Wright, and I. E. Barnum, for appellant.

T. D. W. Yonley, Hugh Butler, and A. B. McKinley, for appellee.

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

The alternative writ of mandamus performs the office of the complaint in an ordinary civil action. It must state a cause of action, and failing to do so, will not support a judgment. Its legal sufficiency may, by the return or answer, provided for in the Civil Code, be challenged as upon demurrer, and tested under the rules of pleading applicable to the ordinary complaint, when assailed by demurrer. The alternative writ before us is somewhat informal, and undoubtedly contains unnecessary matter; but, so far as mere form is concerned, we shall hold it sufficient without discussion, and proceed to consider the alleged substantial legal objections that are fairly presented by respondent's demurrer.

The subject of water-rights has always been justly regarded as one of the most important dealt with in the legislation and jurisprudence of Colorado. Hitherto attention has been mainly directed to the adjustment of priorities and differences between individual consumers; but hereafter, owing to the rapid settlement of the eastern part of the state, the status of the carrier, and its relations with the consumer, will command the most earnest and thoughtful consideration. For convenience, I shall, throughout this opinion, use the terms 'carrier' and 'consumer,' meaning the canal company and tiller of the soil, respectively. The agriculturists in the territory mentioned are, with fes exceptions, unable to convey water from the natural streams to their land. The annual rainfall is increasing; yet at present, without irrigation, but a small fraction of the producing capacity of the soil can be utilized, and, unaided, these consumers will for years to come be practically helpless. To the successful cultivation of that region, the carrier and consumer are therefore equally indispensable. Hence a wise legislative policy, and an intelligent judicial construction, require a careful consideration of the privileges, powers, and duties of the carrier, as well as the rights and obligations of the consumer. The courts should protect the consumer in the full enjoyment of his constitutional and statutory rights; but they should also jealously guard the rights of the carrier, and so deal with it (the constitution and statutes permitting) as to encourage the investment of capital in the construction of reservoirs and canals for the storage and transportation of water.

The pleadings in the case at bar show that respondent is a carrier and distributor of water for irrigation and other purposes. That its canal, two years ago, was upward of 60 miles in length, and capable of supplying water to irrigate a large area of land. That relator is one of the land-owners and consumers under the canal, and can obtain water from no other source; also that respondent has, undisposed of, a sufficient quantity to supply his wants. That he tendered the sum of $1.50 per acre, the annual rental fixed by respondent, and demanded the use of water for the current season, but declined to pay the further sum of $10 per acre also demanded, and to sign a certain contract presented to him for execution. That respondent refused, and still refuses, to grant relator's request, except upon compliance with these conditions. The remaining essential facts will sufficiently appear in connection with the specific questions of law presented, as they are in their proper order discussed.

Does the record show a clear legal right of relator, from the enjoyment of which he is unlawfully precluded by respondent? Our constitution dedicates all unappropriated water in the natural streams of the state 'to the use of the people,' the ownership thereof being vested in 'the public.' The same instrument guaranties in the strongest terms the right of diversion and appropriation for beneficial uses. With certain qualifications, it recognizes and protects a prior right of user, acquired through priority of appropriation. We shall presently see that, after appropriation, the title to this water, save perhaps, as to the limited quantity that may be actually flowing in the consumer's ditch or lateral, remains in the general public, while the paramount right to its use, unless forfeited, continues in the appropriator. But, to constitute a legal appropriation, the water diverted must be applied within a reasonable time to some beneficial use; that is to say, the diversion ripens into a valid appropriation only when the water is utilized by the consumer, though the priority of such appropriation may date, proper diligence having been used, from the commencement of the canal or ditch. The constitution unquestionably contemplates and sanctions the business of transporting water, for hire, from natural streams to distant consumers. The Colorado doctrines of ownership and appropriation (as declared in the constitution, statutes, and decisions) necessarily give the carrier of water an exceptional status; a status differing in some particulars from that of the ordinary common carrier. Certain peculiar rights are acquired in connection with the water diverted. It is unnecessary now, however, to enumerate these rights in detail; for the present, it suffices to say that they are dependent for their birth and continued existence upon the use made by the consumer. But, giving these rights all due significance, I cannot consent to the proposition that the carrier becomes a 'proprietor' of the water diverted. A cursory reading of the statutes might convey the impression that the legislature regarded the carrier as possessing a salable interest in this water. And the constitutional phrase, 'to be charged for the use of water,' relating to the carrier's compensation, might at first glance...