O'Neil v. Fort Lyon Canal Co.

Mr. Justice Caswell delivered the opinion of the court: During the years 1884 to 1886, both inclusive, a corporation known as The Arkansas Biver Land, — 490 — Town & Canal Company constructed an irrigating canal from the headgate thereof, which is situate in Otero county on the Arkansas river (from which the canal is supplied), to Horse creek, a distance of about thirteen miles. The headgate of said canal was about 60 ft. in width, but the canal as constructed between the points mentioned was about 12 ft. in width on the bottom, and its capacity was 164.64 cubic ft. of water per second of time-, being sufficient to irrigate about 12,000 acres of land lying under it and west of Horse creek. The record shows that at the time of the construction of the headgate and a portion of the ditch as described, a larger canal was contemplated, which was subsequently constructed through the counties of Bent and Prowers- to its present terminus, a distance of about 113 miles from the headgate. On March 1, 1887, The Arkansas River Land, Reservoir & Canal Company succeeded to' the property, rights and franchises of the town and canal company aforesaid, and went into possession of the canal and enlarged the same from its headgate to Horse creek, and extended the same along the established right of way to its present terminus. It would seem that later the canal became the property of The La Junta & Lamar Canal Company, and subsequently became the property of the defendant, The Fort Lyon Canal Company, but the title as vested in the La Junta company need not be considered in the determination of this controversy. At the June term of the district court, 1895, a decree in adjudication proceedings was entered, based upon certain findings. From the findings and decree it appears that The Arkansas River Land, Reservoir. & Canal Company was the owner of the canal bearing its own name at the time of the original adjudication; that The Arkansas River Land, Town & Canal Company — 491 — had owned the canal and constructed it as far as Horse creek, which was the furthest point to which the canal was extended in 1884; that it was constructed over the same line of canal as the Reservoir & Canal Company’s canal; that “the said canal so constructed was constructed with due diligence, and the amount of 164.64 cubic ft. of water per second of timé was applied to the irrigation of lands from the canal as then and afterwards constructed within a reasonable time”; that the Reservoir & Canal Company, by lawful deeds of conveyance, became the owner of all the canal, headgates, right, title and interest, rights of priority inchoate and acquired, and all the franchises of the Town & Canal Company on the 1st day of March, 1887, and began the extension of said canal, which in this finding and the decree herein is known as The Arkansas River Land, Reservoir & Canal Company’s canal, and excavated the said canal from the headgate to a capacity equal to that of the headgate, and extended the said canal with diminishing-capacity according to the amount of water drawn off for irrigation to the length of 113 miles, and completed the entire extension before the spring of 1889; that the said extension so begun on the first day of March, 1887, was substantially the same enterprise begun and partially executed in 1884, and that there was little irrigation in the years 1884, 1885 and 1886, and that there were financial, difficulties in the way of immediate extension of the said canal. It was decreed that The Arkansas River Land,. Reservoir & Canal Company have priority No. 3 for 164.64 cubic ft. of water per second of time, on account of appropriation made on the 15th day of April, 1884, and that it have priority No. 5 in addition to the above for the amount of 597.16 cubic ft. — 492 — of water per second of time, on account of the appropriation made on the 1st day of March, 1887. • The appellants herein, who were plaintiffs below, brought suit against The Fort Lyon Canal Company, a corporation, and Frank Ereyball and John C. Davidson, and “other users of water and water rights from the Fort Lyon canal east of Horse creek, who are similarly situated as to the use of water from the Fort Lyon canal.” The plaintiffs claim that priority No. 3, as of March, 1884, was decreed to and belongs to the lands west of Horse creek; that the plaintiffs and others living on the lands west of Horse creek are entitled to the benefit of such priority No. 3, and that the waters flowing into the ditch under and by virtue of priority No. 3. should not be pro-rated with the consumers residing on lands east of Horse creek. That should it become .necessary because of the scarcity of water to pro-rate at all, then such pro-rating of the waters flowing into the ditch by virtue of priority No. 3 should be confined to. the settlers and consumers on the lands west of Horse creek. Appellants further contend that for a long period of years the consumers west of Horse creek had the full benefit of all the waters flowing into the ditch by virtue of said priority No. 3. We do not think the contention of appellants can be sustained under the law or under the facts presented in this case. It has frequently been decided in this state that the decrees under the adjudication statutes determine the priorities and the amount of appropriations to the several ditches in the irrigation districts in which such decrees are entered, and are not intended to designate the person or persons entitled to the use of water thus appropriated.—Ind. Ditch Co. v. Agri. Ditch Co., 22 Colo. 513-524; Oppenlander v. Left Hand Ditch Co., 18 Colo. 142; — 493 — Combs v. Farmers’ High Line Canal & Res, Co., 38 Colo. 420. As aptly stated in the latter case: “While no ascertainment is made as to who are consumers under any particular ditch, necessarily the relative rights of ditch owners and all consumers are determined.” This rule, however, is intended to govern contentions between different ditch owners taking water from the same stream, and does not determine the rights of the consumers in a ditch as between themselves, nor determine their relative priorities, and the decree in this case determines only the priority and the amount of appropriation to the ditch as such, and does not attempt to determine the rights of the consumers excepting incidentally as against other ditch owners; neither does it attempt to attach the priorities to any particular lands. “While it is true that the priority decree is awarded to the ditch or ditch company which carries the water, yet in reality the thing decreed is a completed appropriation. Such appropriation consists of two acts: a diversion of water from .a natural stream, and the successful application thereof, within a reasonable time thereafter, to some beneficial use. Where the consumer of water makes the diversion himself, a completed appropriation is made by the same person; but where the diversion is made by a carrier, and the successful application is made by another who is a consumer, a completed appropriation is the result of their combined acts.”—Combs v. Canal & Res. Co., supra. It is, of course, necessary in making proof to show that water has been actually applied to lands, but it is nevertheless the act of the consumer in beneficially applying it that completes the appropriation, and his right to a prior use of water cannot rest upon his purchase of any particular tract of land and the use of water thereon to the — 494 — detriment of a consumer who is prior in point of time in the use of the water. While the complaint in the case before us alleges that the plaintiffs and others similarly situated became appropriators of water from the Arkansas river for the purpose of irrigating lands west of Horse creek to the extent of 164.64 cubic ft. of water per second of time long prior in point of time to the use, or attempted use, on the part of any users of water from the extension ditch east of Horse creek, such allegations are not supported by the testimony. The' plaintiffs below claim under a decree of priority awarded to the Reservoir & Canal Company. This decree recites that the consumers made beneficial use of the water diverted by the Reservoir & Canal Company within a reasonable time to the extent of 164.64 cubic ft. of water per second of time1, and that it was entitled to the priority by virtue of such appropriation as of the date of March, 1884. The presumption is and must obtain that beneficial use was shown as a basis for the decree. The evidence is undisputed that certain lands east of Horse creek were irrigated and cultivated long prior to certain lands west of Horse creek. It would seem from the decree, which recites that there was little irrigation in the years 1884, 1885 and 1886, and from the further recital therein that the 164.64 cubic ft. of water per second of time was applied to the irrigation of lands as then and aftenvards constructed within a reasonable time, that the testimony did not show that this decree was based upon use of water for lands west of Horse creek. The defendant company and its grantors were trustees for the stockholders and consumers and bound to protect the interests of all.—Ditch Co. v. Elliott, 10 Colo. 327; Ditch Co. v. Ditch Co., 22 Colo. 513; Canal Co. v. Ditch Co., 23 Colo. 233. In this case a court of equity was requested to — 495 — take water from consumers irrigating lands east of Horse creek and give the same to later users on lands west of Horse creek, which it properly declined to do. We think it clearly appears from the record that the relations between the plaintiff: consumers and the ditch companies were contractual and that the Reservoir & Canal Company had different priorities awarded to its canal; but it is not shown, nor attempted to be shown, that the plaintiffs, had any contract with the Reservoir & Canal Company by which they were to receive from the company water for irrigation purposes from the 3rd priority, so-called, for 164.64 cubic ft. It is stated by the defendant and undisputed, and there is testimony in the record in support of this claim, that all the contracts issued by the Town & Canal Company were subsequently taken up and new contracts issued by the Reservoir & Canal Company. Appellants do not set forth any contract with the Reservoir & Canal Company other than by setting forth the fact that they purchased and resided upon lands west of Horse creek which were irrigated from this canal and to which priority No. 3 solely applied. It seems, therefore, to be undisputed that if the appellants had any contracts at all, they were such as were issued by the Reservoir & Canal Company containing the pro-rating clause which provides in part that if the supply of water be insufficient to furnish an. amount equal to all the water rights then outstanding, the said company shall have the right to distribute such water as shall flow through the said canal to the holders of such water rights pro rata. This contract certainly applies to all the waters flowing through the canal and to which it was entitled at the- time the contract was made. As this company did not come into possession of the canal until — 496 — March, 1887, it must have been made subsequent to that date and subsequent to the date of its second appropriation and decreed priority. We think the rights of appellants are measured by this contract; at least there is no claim to the contrary. They would then be bound by its terms and conditions. If they had, at any time, greater rights under contracts with the Town & Canal Company, they were waived when they entered into this new contract with the Reservoir & Canal Company. The defendant the Fort Lyon Company succeeded to the liabilities of the Reservoir & Canal Company, likewise to its benefits. It is not shown that it has any greater obligations than rested upon the Reservoir & Canal Company. We do not think any rights have been abandoned, nor does the record show that the plaintiffs' would be bound by any .by-laws of the Fort Lyon Company, because they took its stock with the understanding and agreement that their legal rights should be determined regardless of the rules and by-laws of The Fort Lyon Canal Company. As we' have said, we think the rights of appellants were acquired by the diversion of the canal company and the beneficial use of water by themselves, but if their rights are dependent upon their individual diversion and beneficial use and not upon the carriers’ diversion, then such rights cannot be determined in this case and under the pleadings herein. The proper parties are not before the court.—Brown v. Canal & Res. Co., 26 Colo. 66; Farmers’ High Line Co. v. White, 32 Colo. 114. Appellants allege that, ‘ ‘ The court erred in finding that the said plaintiffs have, by acquiescence, permitted rights to accrue in said appropriation in reliance upon a general ownership of said priority in — 497 — said canal, and by tbe implied finding therein that plaintiffs have abandoned the -use of their prior right to water flowing in the canal west of Horse creek. ’ ’ The reasoning of the court, even if incorrect, does not constitute reversible error, the conclusion being, as we think, correct. It has long been a rule of this court that if the judgment is correct, it will not be reversed' because of the process of reasoning through which the result may have been reached by the lower court, unless it appears by the record that the party against whom the ruling was made is prejudiced thereby.—Mining Co. v. Mining Co., 11 Colo. 223; Hall v. Rockwell, 8 Colo. 103; Haines v. Christie, 17 Colo. App. 272; Bailey v. O’Fallon, 30 Colo. 419; MacDonald v. People, 29 Colo. 503. The judgment in this case is not necessarily based upon any finding complained of nor upon any findings of the court. It is based upon facts adduced at the trial. There is ample competent evidence to sustain the judgment outside of any testimony which may have been introduced concerning the acquiescence of appellants in the distribution and pro-rating of water; and it does not appear that the judgment resulted from, or that it is based upon, improper or incompetent evidence, or upon any alleged erroneous findings of law by the court. We think the record discloses that the appellants have all the rights they ever acquired, and that their rights in respect to the distribution of water are measured by their contracts with the Reservoir & Canal Company. The judgment is affirmed. Affirmed. Chief Justice Steele and Mr. Justice Maxwell concur.