Wright v. Platte Valley Irrigation Co.

Me. Justice Goddard delivered the opinion of the court. 1. The first error discussed by counsel for appellant is predicated upon the action of the court below in sustaining the demurrer to the first defense. Their contention is that this defense traversed a number of material allegations of the complaint, and put in issue the fact as to whether there had been a violation of the contract as alleged; and that therefore [328] no decree could go in .favor of appellee without proof on its part of the existence of this controverted fact. By reference to that portion of the answer which is relied on as constituting such traverse, as above set out, it will be seen that it contains no denial of the specific acts alleged to have been committed by appellant in violation of the contract, to wit, That during the year 1896 he not only used the water to irrigate the forty acres specified in the contract, but also to irrigate and cultivate altogether about 120 acres; but does contain an admission that he had, during that year, used the water on other and different land, and did thereby attempt to irrigate a small tract more than that described in the contract. From this admission, and these undisputed averments, notwithstanding the denial in general terms that the appellant thereby used a larger amount of water than was necessary, or for a longer time than was required for the irrigation of the particular tract described, it sufficiently appears that appellant used the water in violation of the terms of the contract. 2. It is unnecessary to determine in this case the question, so fully and ably discussed by counsel, as to whether or not a consumer of water under a ditch can, without the consent of the ditch company, change the use of water to another and distinct tract of land from that specified in the contract, since, under the averments of the complaint, appellant has not made, or attempted to make, such a change. Nor is the action brought to prohibit such a change. The only important question presented by the pleadings is, whether the third provision of the contract, in so far as it limits the use of the water right in question to the necessities of the particular forty acres therein described, is valid and enforcible against appellant. In other words, whether, notwithstanding this limitation, the appellant can use the water for all necessary purposes upon the land specified, and at the same time apply it to the irrigation of other and adjacent land. Counsel for appellant insist that this provision is harsh, unreasonable, against public policy and void, because, it is said that the [329] ditch company, being simply a “ common carrier ” is clothed merely with the right to carry water and receive compensation therefor; and the consumer under the ditch who applies the water to a beneficial use, being really the appropriator of the water, and hence the owner of the water right, is entitled to apply the water thus appropriated to any land he may desire; and any attempt on the part of the ditch company to limit or control his exercise of this right is beyond its power. We cannot agree fully with counsel upon- either of these propositions. It is true, as has been frequently announced by this court, that a ditch company is not the owner of the water it diverts through its ditch ; neither is its status, in the strict legal sense of the term, that of a “ common carrier.” As was said in Wheeler v. The Northern Colorado Irrigation Co., 10 Colo. 582: “ The carrier must be regarded as an intermediate agency existing for the purpose of aiding consumers in the exercise of their constitutional right, as well as a private enterprise prosecuted for the benefit of its owners.” Its status is more like that of a private carrier, whose duties are measured by the obligations it assumes towards its consumers, and such as the law imposes by reason of the nature of the business in which it is engaged. While it may not impose conditions that operate to deprive consumers of the enjoyment of their constitutional rights, it may require them to exercise such rights under reasonable regulations and limitations. The consumer, by reason of his application of the water to a beneficial use, is said to be an appropriator, yet we do not think he occupies the exact status of one who appropriates the water directly from the public stream. His contract with the company is not the purchase of a given volume of water, but the purchase of the right to use the canal as a means to conduct a given volume, or so much thereof as may be necessary to irrigate a certain number of acres; while one who diverts the water through his own channel directly from the stream, having made an appropriation of a given volume without any such limitations imposed, is at liberty to di [330] vert that volume when such diversion does not interfere with the prior rights of others, and apply it to the use for which it was originally intended, or on an acreage exceeding that for which the diversion was originally made. In other words, the consumer under a ditch, by the express terms and limitations of his contract, does not acquire a right to the continuous use of the maximum of the water right conveyed, and which may have been necessary to irrigate the specified number of acres originally; but only acquires the right to have so much thereof furnished for such length of time as the land, in its existing condition, requires. We are unable to see wherein such limitation is against public policy, or is in any sense an illegal or unreasonable exaction on the part of the ditch company. It is intended to prevent the waste of water, or a use of the same in excess of the necessities of the particular piece of land specified, and is directly in line with the policy prescribed by the legislature upon this subject. Section 2283, Mills’ Ann. Stats., provides: “ During the summer season it shall not be lawful for any person or persons to run through his or their irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his or their said land, and for domestic and stock purposes; it being the intent and meaning of this section to prevent the wasting and useless discharge and running away of water.” We think that the provision under consideration was a legitimate subject of contract between the appellant and the ditch company, and measures the extent to which appellant may avail himself of the water right in question. The decree of the court below was in conformity -with this view, and is accordingly affirmed. Affirmed.