Error
to district court, Larimer county; T.M. ROBINSON, Judge.
The
right to the use of water secured by legal appropriation is
property, and a proper construction of the various provisions
of the constitution on the subject harmonizes that instrument
with the declaration of the Bill of Rights, "that
private property shall not be taken or damaged for public or
private use without just compensation."
Defendant
in error is a corporation operating under the general
incorporation law of the state for constructing, operating,
and maintaining a ditch for irrigation, agriculture,
domestic, and manufacturing purposes. In April, 1881, it
commenced the construction of its ditch from the Cache la
Poudre river, at a point near the foot of the mountains, to
run in an easterly and south-easterly direction. There were
also seven contemplated or projected reservoirs for the
storage of water. The ditch was in process of construction
for several years, and some time during the year 1888 was 60
miles in length, having at its head a carrying capacity of [1
Colo.App. 50] about 470 cubic feet of water per second. At
the time of the institution of this suit very few, if any, of
the contemplated reservoirs along the line of the ditch for
storing the supply of water had been built. By an
adjudication in April, 1882, to establish the priorities to
the use of water in the district where the ditch was located,
in which a decree was entered, and by subsequent and
supplemental proceedings, one in April, 1884, and one in
October, 1885, in which the decree was amended, it was
finally adjudicated and decreed that the ditch of the
defendant in error should be ditch No. 63, with priority No.
100, with capacity computed at 463 cubic feet per second.
Between the time of the commencement of the construction of
the ditch and the bringing of this suit a large number of
settlers, estimated at near 200, many with families, settled
under the ditch, dependent upon the defendant for water for
irrigating and domestic purposes to be supplied from its
ditch under contracts made with the corporation. It is shown
in evidence that the large extent of country through which
the ditch was excavated was an arid, alkaline waste,--a
veritable desert. Before the supposed appropriation of water
to the ditch in question there had been from the Cache la
Poudre river 99 appropriations of water, dating from the
earliest settlement of the country down to that time, and
each and all had been decreed priority over the ditch in
question. Priorities from 1 to 78 inclusive were for water
appropriated prior to January 1, 1876, and aggregated over
2,300 cubic feet of water per second. On the 4th day of May,
1888, as shown by the evidence, there was but 360 cubic feet
of water per second in the river. From that time on to the
close of the irrigating season, with the exception of two
short freshets, lasting but a few hours, the water varied
from 250 to 800 cubic feet per second. The plaintiff in
error, during the year 1888, was water commissioner of the
district in which defendant's ditch was situated, and, in
his official capacity, charged with the apportionment and
distribution of water according to the appropriations [1
Colo.App. 51] and priorities, as adjudicated and decreed.
Early in the season, by reason of the scarcity of water in
the stream, and its inadequacy to supply earlier
appropriations, he ordered the head-gates of defendant's
ditch closed, and the water was shut out.
This
suit was instituted against the water commissioner, plaintiff
in error, by filing a complaint on the 4th day of May, 1888,
for an injunction restraining him from closing the ditch, and
for a decree that the ditch be entitled to water sufficient
for the domestic use of those who were alleged to be
dependent upon it. On the day the complaint was filed the
following order was made: "Upon the filing of this
complaint in the office of the clerk of the district court of
Larimer county, Colorado, and also upon the filing of an
undertaking in the sum of one thousand dollars, conditioned
as required by law, with good and sufficient sureties, to be
approved by the clerk, that a writ of injunction issue
commanding the defendant, his associates and employes,
immediately to raise the head-gate of the ditch or canal
mentioned in the complaint, so that a sufficient amount of
water may enter and flow into said ditch to supply the
consumers of water therefrom with water for domestic
purposes, according to its priority
[27 P. 236]
No. 100, as heretofore determined by the decree of the court,
and also commanding him and them to keep said head-gate
raised until further order in the premises. Allowed at Fort
Collins this 4th day of May, 1888,"--and a preliminary
writ of injunction was issued and served. A trial was had,
and, on November 5th, the following final decree was entered:
"This cause having heretofore come on to be finally
heard upon the pleadings and the evidence, as well that on
part of the defendant as that in behalf of the plaintiff, and
the court having heard the same and the argument of counsel
thereon, and having taken the matter under consideration for
further advisement, and having duly considered the same, and
being now fully advised in the premises, doth find the issues
for the plaintiff. And the court doth specially find from the
pleadings and evidence aforesaid that, [1 Colo.App. 52] at
the time of the commencement of this action, the plaintiff
was, and still is, a corporation duly organized for, and,
among other things, engaged in, the business of conveying and
distributing from the Cache la Poudre river, to and for the
use of persons residing along the line of its canal, water
for domestic purposes; that the plaintiff's said canal is
situate in water district No. 3, and is some sixty miles in
length; that the persons aforesaid residing along the line of
said canal, at the time of the commencement of this action,
were and still are, to a great measure, dependent upon the
plaintiff and its said canal for water suitable and fit for
domestic purposes, and, in many instances, are wholly
dependent thereon for water for such purposes; that, at the
time of the commencement of this action, there was flowing in
and down said river sufficient water to supply the reasonable
needs and demands of all appropriators and users of water
therefrom for domestic purposes, if carefully distributed,
and with no more waste than is naturally incident to the
customary manner of distributing water through open ditches
and canals, but the water of said river was insufficient for
the service of all desiring the use of the same for various
other beneficial uses; that the plaintiff has and controls a
large reservoir for the storage of water situate upon the
said river above the head-gate of its said canal, wherein it
is wont, from time to time, to store a large amount of
surplus water, to be afterwards drawn off and turned into its
canal for beneficial uses; that the defendant, as water
commissioner of water district No. three, (3,) had shut down
and closed, and threatened to keep shut down and closed, the
head-gate of the plaintiff's said canal, and had thereby
deprived the plaintiff of the means of obtaining water
wherewith to supply the same to the persons so dependent upon
it for water for domestic purposes, save at such times when,
by reason of increased flow of water in the river, the
plaintiff may be entitled to take water therefrom under and
by virtue of its appropriation thereof for agricultural
purposes. And the court doth further find, as a matter of
law, that, when the waters of said river are not sufficient
for the service of [1 Colo.App. 53] all those desiring the
use of the same, those using the water for domestic purposes
are entitled to divert and take the same, according to their
respective priorities of appropriation thereof, for such
purposes, notwithstanding any appropriation thereof by
persons using the same for any other purpose. And the court
doth further find and declare, as a matter of law, that the
uses to which water may be applied, which are comprehended by
the term 'domestic purposes,' hereinbefore employed
and occurring in the constitution of this state, are as
follows, and none other, that is to say: Household purposes,
including water for drinking, washing, bathing, culinary
purposes, and the like; water for such domestic animals as
are used and kept about the house, such as work animals and
cows kept to supply their owners and their families with
dairy products; and such other uses, not being either
agricultural or mechanical, as directly tend to secure and
promote the healthfulness and comfort of the home. Wherefore,
it is ordered and decreed by the court that the injunction
heretofore allowed herein and served upon the defendant be,
and the same is, hereby so modified as to operate and be
effectual only as hereinafter decreed. It is ordered and
decreed by the court that the defendant, John L. Armstrong,
water commissioner in and for water district No. three, (3,)
his successors in office, deputies, agents, and servants, do
absolutely desist and refrain from closing or keeping closed
the head-gate of the canal of the plaintiff, the Larimer
County Ditch Co., for any period exceeding twenty (20) days
at a time, and he is and they are strictly enjoined,
required, and commanded, whenever water has been by them or
any of them prevented from flowing from the Cache la Poudre
river into said canal for the period of twenty (20) days, and
he or they are thereunto requested by the plaintiff, to
permit sufficient water to flow into said canal from said
river for a period of not less than five (5) days, to supply
water for domestic purposes to all persons residing along the
line of said canal and dependent thereon for water for such
purposes, and to enable such persons to fill cisterns and
such like receptacles for [1 Colo.App. 54] the storage of
water for such purposes: provided, that there be water
flowing in said river to which other persons are not entitled
by prior appropriation thereof for domestic purposes, and,
further, that the plaintiff shall not have water at such time
stored in its said reservoir. It is ordered and decreed that
the plaintiff shall not, as against the rights of any prior
appropriation of water for agricultural purposes, at any time
when it has water stored in its said reservoir, be entitled
to divert or take any water from the said river, not flowing
down from its said reservoir. It is further ordered and
decreed by the court that, except as herein and hereby
modified, the injunction heretofore allowed be, and the same
is, made perpetual; saving and reserving, however, to each
party the right to move the court at any time so to modify
this decree as to make it conform to the provisions of any
law that may hereafter be enacted by the
[27 P. 237]
general assembly of this state prescribing regulations
relating to the distribution of water for domestic purposes.
It is further ordered that each party pay its and his own
costs incurred herein."
J.M.
Freeman and H.N. Haynes, for plaintiff in error.
Frank
J. Annis and Lyman Porter, for defendant in error.
REED,
J., (after stating the facts as above.)
The
question presented in this case for determination is of very
grave importance,--purely a question of law; there was no
controversy in regard to the facts. The testimony in this
case establishes the facts that, prior to the inception of
the scheme to construct the ditch of the defendant in error,
and prior to January 1, 1876, water from the stream had been
legally appropriated exceeding in volume 2,300 cubic feet per
second, while the volume of the stream for the irrigating
season of 1888 did not average over 700 cubic feet per
second. Perhaps that season was an exceptionally [1 Colo.App.
55] dry one, but it is not so shown. The canal in question,
at its easterly extremity, 60 miles in a desert from the
source of supply, was built in 1885 or later; and taking the
testimony of the defendant in error as true, that that
section of the country is absolutely uninhabitable unless
supplied with water for domestic purposes from the canal, we
must conclude that the settlers for whose use water was
required in this suit settled in those years, as, from the
facts shown, such settlements could not have antedated the
completion of the canal, from absolute lack of water to
sustain animal life. Here we find at a time when the stream
was not supplying to those who had legally appropriated the
water from 10 to 25 years before to exceed one-third of the
supply adjudicated and decreed, the defendant in error
applying to the courts for a further reduction and diversion
for the benefit of the latest comers. All such attempts,
especially when successful, are subversive of natural and
statutory law and rights and the constitution of the state,
and could not possibly be tolerated in a court of equity
except upon the ground of the inexorable necessity of having
water to sustain human life. On no other ground could the
original plaintiff have had any standing in a court of
equity.
The
question to be determined is, did the court err in decreeing
the right of defendant in error to divert the water of the
stream for distribution to settlers and patrons for domestic
use, paramount and superior to the rights of those who had
appropriated the same water for purposes of irrigation? In
examining the right to the use of water for domestic
purposes, under the facts of this case, and under the
climatic and physical conditions incident to an arid,
semi-desert country, very little assistance can be obtained
from common-law sources, or the adjudications of older states
where the same conditions do not exist. Doctrines of common
law declaratory of the rights of riparian proprietors have
very limited, if any, application. Before any general
organization, territorial or otherwise, was or could have
been had, a tide of [1 Colo.App. 56] emigration poured into
the region comprised in the present state, and over the
entire west. It was found an arid, semi-desert country. The
land could only be made productive by the artificial use of
water. The country was without law, but each individual
brought with him the principles of equity and justice which
were a part of his education. It was soon found that the
water of the streams was inadequate to supply all the land.
They found a new climate, new conditions calling for new laws
applicable to the conditions. The first comer settled near
the stream. In the absence of surveys he designated by
landmarks the boundaries and extent of his occupation of
land. He diverted--appropriated by such diversion--a certain
amount of water from the stream, supposed to be sufficient.
Others settled near him upon the same stream, and made a like
appropriation. In time there were agricultural settlers
enough to organize and establish a local government, and a
series of rules or laws were adopted, perhaps in many
instances crude and inartificially drawn, but embodying
principles of equity and justice. They were recognized and
obeyed, the setlers recognizing, as before stated, a fact
which later corporations and settlers have not yet apparently
recognized, or, if recognized, have disregarded, that the
supply of water in the streams was not sufficient for all the
land. Instead of parceling it out generally and making it
practically valueless to any, following the course of
California and other earlier settled territories where the
same conditions existed, they adopted the only rule founded
in equity that could be rightfully adopted in the premises,
viz., that of prior appropriation, such appropriation to be
controlled and limited. Such prior appropriation was so much
as could be beneficially used upon the land for which the
appropriation was made. This was the general well-regulated
custom, hence a law, prior to and at the time of the
organization of the territory; and, in the organic act
creating the territory, it is said, (section 6:) "Nor
shall any law be passed impairing the rights of private
property." The right to water by prior appropriation was
recognized [1 Colo.App. 57] by the first legislature of the
territory, (see Laws 1861, p. 67;) and such rights continued
to be recognized during the entire territorial existence. The
general government, in which was the fee to both land and
water at the time of the settlement, and for many years
after, acquiesced in the disposition of the water according
to local customs, and, in July, 1866, passed an act in which
it provided (section 9) "that whenever, by priority of
possession, rights to the use of water for mining,
agricultural, manufacturing, of other purposes, have vested
and accrued and the same are recognized and acknowledged by
the local customs, laws, and the decisions of courts, the
possessors and owners of such vested rights shall be
maintained and protected in the same." The right to the
water in the streams of Colorado, by prior appropriation,
antedated any legislation. It was the common law of the
people, and legislation, both national and territorial, was
but a
[27 P. 238.]
recognition declaratory of the right as it had theretofore
and then existed. Neither in any territorial or national
legislation do we find any provision or declaration of rights
to water by appropriation, or to be acquired in any other
manner, for domestic use. It is first found in the
constitution of the state.
Although
water for domestic purposes is a necessity, and its use for
that purpose a primary use, it seems that, from the small
quantity required, and its use so inconsiderable compared
with the quantity required for irrigation, it was regarded as
incidental. Article 16, § 5, is as follows: "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." And article 16, § 6: "The right to
divert unappropriated waters of any natural stream for
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 [1 Colo.App. 58] 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." The error into which the learned judge seems
to have fallen was in regarding these constitutional
provisions as retrospective, and so far retroactive as to
impair, if not destroy, property rights acquired long before
its adoption. Such cannot be its construction. It must be
construed to be declaratory of, and not destructive of, the
rights and powers enjoyed by the people before its adoption.
In the language of Mr. Webster, the great expounder of
constitutional law: "Written constitutions sanctify and
confirm great principles, but the latter are prior in
existence to the former." 2 Webst. Works, 392. In
Hamilton v. County Court, 15 Mo. 13, it is said: "What
is a constitution, and what are its objects? It is easier to
tell what it is not than what it is. It is not the beginning
of a community, nor the origin of private rights; it is not
the fountain of law, nor the incipient state of government;
it is not the cause, but consequence, of personal and
political freedom; it grants no rights to the people, but is
the creature of their power, the instrument of their
convenience. Designed for their protection in the enjoyment
of the rights and powers which they possessed before the
constitution was made, it is but the frame-work of the
political government, and necessarily based upon the
pre-existing conditions of laws, rights, habits, and modes of
thought." And the language is quoted and adopted by
Judge Cooley. Const. Lim. 47. And in regard to water-rights
by prior appropriation the supreme court of this state has
asserted the same general principle in Coffin v. Ditch Co., 6
Colo. 446, in terse and comprehensive language, where it is
said: "The right itself and the obligation to protect it
existed prior to legislation on the [1 Colo.App. 59] subject
of irrigation." See, also, Strickler v. City of Colorado
Springs, (Colo.) 26 P. 313, (not yet officially reported.) By
section 5 it will be seen that the prior appropriations of
water were recognized, and in no way attempted to be
affected, by the provisions of the constitution. The language
is, "the water of every natural stream, not heretofore
appropriated, *** is hereby declared to be the property of
the public," etc., and, by section 6, "the right to
divert any unappropriated waters of any natural stream,"
etc., clearly showing that the provisions of the constitution
were only to operate in the future, and only upon the water
that was unappropriated at the time of their adoption. It is
a well-settled rule of construction that all parts of an
instrument are to be construed together, and harmonized if
possible. To give the clause of section 6 the construction
claimed would not only make it contradictory to the first
part of the same section, but contradictory of section 5, and
directly in conflict with section 15 of article 2, (bill of
rights,) which declares "that private property shall not
be taken or damaged for public or private use without just
compensation." It follows from what has been said that
the court erred in construing the section of the constitution
as authorizing an interference, impairment, or injury of the
rights of prior appropriators for irrigating purposes vested
before the adoption of the constitution, for the purpose of
supplying water for domestic purposes to later comers. See
Strickler v. City of Colorado Springs, (Colo.) 26 P. 313. The
suit as made should have been at once dismissed for want of
equity. The right to the use of water is property; the title
accrues by legal appropriation, and becomes vested as of the
date of such appropriation. To divest such right and confer
it upon another without compensation would be clearly an
infraction of constitutional guaranties, and the inequitable
character of the decree becomes at once apparent.
For the
reasons above stated the decree should be reversed, and the
suit dismissed.