Junction Creek & North Durango Domestic & Irrigating Ditch Co. v. City of Durango

Mr. Justice Goddard delivered the opinion of the court. The record is somewhat voluminous, and numerous errors are assigned, but the foregoing statement is sufficient to present the most important, and, as we think, the decisive question in the case, and that is: Can the city, by virtue of the [196] statute above quoted, acquire the right to enlarge and use the ditch in question for the purpose of supplying its citizens with water for irrigation and domestic use ? We think this must be answered in the negative. The ditches subject to enlargement and joint use under the statute are strictly private ditches, and such as are used to convey water across the land of another to irrigate the adjoining land of the person or corporation owning the ditch. This is clearly manifest by the language of .the act, and also from its object and purpose. Prior to its enactment, the right to condemn the right of way for separate ditches through the land of another for the purpose of irrigating the land below and adjoining, by persons owning the same, was practically unlimited; and to limit this light and protect the servient estate from the burden of unnecessary ditches, the act in question was passed. It in no way attempts to confer the right upon persons other than those already described in the prior statute, or to enable them to exercise the right under conditions other than those therein mentioned. See. 1712, Gen. Stats. Section 2 of the act mentioned recognizes that the ditches under contemplation were such only as convey water to be used upon the land of the person constructing the ditch. The ditch sought to be enlarged in this case does not come within this category, but is used for the carriage of water for hire, to the people generally, and is at least quasi public. The company, in its capacity as carrier, is a quasi public servant or agent, and is “ charged with what the decisions term a public duty or trust.” Wheeler v. Northern Colorado I. Co., 10 Colo. 582. It is clothed with a franchise to convey water from Junction creek to persons in North Durango; and, if the proposed action of the city can be upheld, such franchise would not only be invaded, but virtually destroyed. Whether the city, by virtue of its chartered powers, can condemn the entire ditch and franchise of the company, we are not called upon to decide. We think it clear that it cannot, by condemna [197] tion proceedings, acquire the right to enlarge and use it in conjunction with the company. The judgment will therefore be reversed and the cause remanded, with directions to the court below to dismiss the proceeding. Reversed.