Wilterding v. Green

MORGAN, C. J. (After Stating the Facts.) — All waters appropriated for sale, rental, or distribution are declared to be a public use; that is, are for the use of the public, and are subject to the control of the state, in the manner prescribed by law. (Const., art. 15, sec. 1.) Whenever any waters have been or «hall be appropriated or used for agricultural purposes, under a sale, rental, or distribution thereof, such sale, rental, or distribution shall be deemed an exclusive dedication to such use. (Const., art. 15, sec. 4.) It follows that all waters appropriated before or after the adoption of the constitution, for sale, rental, or distribution, are declared to be a public use, and are — 780 — exclusively dedicated to such use. Such waters being a publia use, and for a public use, and being exclusively dedicated to the use of the public, such public, and the individuals composing such public, who are in a condition to use such waters, have a, constitutional right to the use of such waters, under such reasonable rules and regulations, and upon such payment, as may be prescribed, which payments and regulations must at all times be reasonable. Who is to determine, and by what means is it to be determined, what is a reasonable payment, and what are reasonable and equitable terms and conditions? Section 1, article 15, of the constitution states that the public use of water, and the furnishing thereof for such use, are subject to the regulation and control of the state in the manner prescribed by law. Section 2, article 15, of the constitution states that the collection of rates or compensation is a franchise, and cannot be exercised except by authority of, and in the manner prescribed by, law. Section 4, article 15, of the constitution states that a party, having once used the water upon his land, cannot be thereafter deprived of it without his consent, if needed, when he shall pay therefor, and shall comply with such equitable terms and conditions as the law prescribes. This section also-gives the party using such water under the conditions a perpetual right to such use. Sections 5 and 6 of the same article authorize the legislature to provide by law the manner in which reasonable maximum rates to be charged for the use of water sold, rented, or distributed, may be established. The whole matter then comes to this, viz.: Companies or individuals may-appropriate and take out the water of a stream for sale, rental or distribution, for any beneficial purpose. When so taken out, it becomes a public use, and the sale or rental of it for pay is a franchise. The legislature may provide all needful rules, regulations, and limitations, governing both the party who supplies and the party who consumes the water, and the legislature shalL provide how reasonable maximum rates shall be established. How much of the duty so imposed by the constitution upon the legislature has it performed? By the act of March 7, 1895 (Sess. Laws 1895, p. 174), the legislature provides (section 14) that when the use of such waters so dedicated has been once sold, — 781 — rented, or distributed to any person, such person thereby has a perpetual right to such use for such purpose, upon complying with such equitable terms and conditions, and making payment therefor. Who is to decide when the terms and conditions are equitable ? The law cannot. so determine, under all the varying conditions and circumstances to which land and life is subject. Who decides, under all laws, what are ■equitable terms and conditions for the exercise of any right given by law? Evidently, courts of justice. , They are the only power authorized to furnish a remedy for every wrong suffered by individuals of civilized society. It is a reasonable conclusion, from a proper consideration of both the constitution and the statutes, that the court must determine what are reasonable terms and conditions which may be imposed by canal or ditch owners for furnishing water, either annually or for a term of years. It can hardly .be presumed that any court would give recognition to a rule or policy on the part of the ditch or canal owners by which the company could assess against the consumers the cost of the construction of the canal, and, in addition thereto, an annual rental, such as is exacted in this case. By section 15 the ditch owner is obliged to furnish water to any person owning or controlling land under said ditch, upon demand and pajrment. Section 16 of this statute also recognized that when such water is so used once, and payment is made therefor, a perpetual use of such water is thereby obtained, provided the owner of such land complies with such reasonable regulations as may be agreed upon, or as may be imposed by law. Section 17 provides that, when a contract is entered into to furnish necessary water, the ditch owner shall also make a reasonable allowance for loss of seepage and evaporation. In case of dispute, who is to decide, in these cases, what is a reasonable allowance? Evidently, the courts. Section 18 provides that “the district •court shall hear and consider all applications which may be made by parties furnishing water for compensation or those procuring water .... which applications shall be supported by affidavits showing reasonable cause for such court to proceed to fix the rate of compensation for such water.” Section 19 — 782 — provides that “tbe court shall, upon examination of the affidavits if it appears that the application is in good faith, and that there are reasonable grounds to believe that unjust rates of compensation, are or are likely to be charged, or demanded, shall fix a day for hearing. The court will then hear all documentary, oral evidence, or depositions taken,” etc. Section-21 provides that “the court shall hear and examine all testimony offered, and upon hearing and considering all the evidence and facts,” etc., “the court .shall enter an order describing the ditch,” etc., “and fixing a reasonable rate of compensation for the use of the water desired.” The recital of the provisions of the constitution and of the statute show that where water has been appropriated and taken out, to or above the land of the person or persons desiring to use it, then such party is entitled to such use, upon reasonable terms, and upon payment of a reasonable compensation; that the district court is authorized to say, by decree, upon proper hearing, what are reasonable terms, and what is a reasonable compensation to be paid. Having fixed such reasonable compensation, in a proper case, by its decree, and established a rule of compensation for both the annual use and the use for a term of years, or which gives the user a perpetual right to such use upon payment, etc., then, in a proper case, a petition for a writ of mandate might lie. The writ of mandate is an extraordinary remedy, exists only by virtue of the statute, is governed entirely by the statute, and can issue only “to an inferior tribunal, corporation, board, or person, to compel the 'performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station,” and must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It is a rule of pleading that, when a demurrer is interposed, it must be carried back to the first defective pleading, if there be any such. Our first inquiry must then be, Does the complaint state facts which entitle the plaintiff to the relief demanded? The complaint shows that the plaintiff tendered the-defendant the sum of sixty dollars, being one dollar and fifty cents per acre for forty acres of land, and demanded water there — 783 — for. The complaint shows, further, that defendant refused the demand, and proposed to furnish plaintiff water for said land on condition that the plaintiff would pay defendant ten dollars per acre for a perpetual water right for said land, and one dollar per acre thereafter per annum. No agreement was arrived at as to what would be a reasonable rental charge for the year 1896, for which year plaintiff demanded the use of water. It is true, plaintiff alleges that one dollar and fifty cents per acre for the year 1896 is a reasonable sum for said use. Defendant in effect denies said allegation, as he refuses the water upon the terms, and proposes other terms which are not accepted. All of which appears by the complaint itself. It then remains for the court to determine what is a reasonable sum, and what are reasonable terms upon which water should be furnished. This the court cannot do, except upon a proper complaint being presented, and upon proper proof. The whole matter is left with the district court, by the constitution and the statute, subject to the right of appeal. The defendant has the water, which is dedicated to the use of the public. The plaintiff is entitled to the use thereof upon reasonable terms, and upon making reasonable payment. What these terms and conditions shall be, the statute authorizes the district court to say. There is, then, a plain, speedy, and adequate remedy at law, which the plaintiff should seek. When such terms and conditions are fixed, if defendant should then refuse to furnish the water, it would seem mandate would be a proper remedy. Counsel for respondent insist, with much zeal, that the case of Wheeler v. Irrigating Co., 10 Colo. 582, 3 Am. St. Rep. 603, 17 Pac. 487, is on all-fours with the ease at bar. Let us see. The following are the provisions of the constitution of Colorado upon the subject of water rights, as cited in the decision referred to: Constitution, article 16: “See. 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. — 784 — “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; hut, 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.” And the following are the sections of the Colorado- statute (Gen. Stats.), cited by the court in said case: “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 he 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 — 785 — 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.” The marked distinction between the provisions of the constitution of Colorado and that of Idaho will be apparent upon a very slight inspection of the two. The Colorado constitution is prospective. It makes provision and lays down rules that: “The water of every natural stream not heretofore appropriated within the state of Colorado, is hereby declared to be the property of the public,” etc. Prior to the adoption of this constitutional provision, the right of private persons to acquire property in natural streams through appropriation had been recognized in Colorado, as it had throughout the Pacific coast; but the character of this right was changed by the constitutional provision above quoted, and thereafter the water of such streams became and was “the property of the public.” Compare section 5 of article 16 of the constitution of Colorado with section 1 of article 15 of the Idaho constitution, which is as follows: ‘“The use of all waters now appropriated, or that may hereafter be appropriated for sale, rental, or distribution, also of all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented or distributed, is hereby declared to be a public use, and subject to the regulation and control of the state in the manner prescribed by law.” The distinction between the two provisions, it seems to me, is too — 786 — palpable to require elucidation or warrant discussion. The Colorado constitutional provision recognizes the previous existence of private property rights in the water of natural streams, but prohibits the acquisition of such rights in the future. The Idaho constitution does not pretend or assume to control or interfere with private property rights in such waters, but declares the use of all such waters, whether theretofore or thereafter appropriated, a public use, and under the control of the state. The doctrine of the Colorado court, that the canal or ditch owner is a mere “common carrier,” could not, certainly, be predicated upon the provisions of the Idaho constitution. That it was the purpose and intention of the Idaho constitution to deal only with the “use” of water, and not with the property rights of appropriators therein, is, I think, further evidenced, by the including within its provisions “all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented, ,or distributed.” The sale, renting, and distributing of the water is a dedication, and brings its use under .the control of the state, but it in no sense destroys or abrogates the property rights of the appropriator therein. In the above cause the court says: “Where the carrier of water for hire demands ten dollars per acre, in advance, in addition to the yearly rental fixed by it for the use of water from its canal, the demand being unreasonable and illegal under the Colorado constitution and the statute in force giving no relief to the consumer, mandamus will lie to enforce the constitutional right to the use of unappropriated water on payment of a reasonable compensation for transportation.” In this state the statute gives a complete remedy. In the case at bar the plaintiff asks the court to compel defendant to furnish him water at one dollar and fifty cents per acre, arbitrarily, without giving the court opportunity to say, after due consideration of all the facts presented by proper evidence, whether said sum is reasonable or not. If the complaint alleged that said sum was reasonable compensation, and the defendant admitted it, without other conditions, the case would be different. The judgment of the lower court is reversed, and the cause remanded with directions to sustain the demurrer to — 787 — the complaint, and permit the plaintiff to amend, if he so desires. Huston, J., concurs.