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ule time necessitating hasty coupling and un- nesses testified to the existence in former years coupling of cars at stations, whereby brake- of a well-defined channel from the place where

such stream disappeared near to the sources of men have not the opportunity for careful

plaintiff's streams. The flow and character of observation of the instrumentalities with the water in the defendant's stream were rewhich they are engaged, nor the time for de- flected in those of plaintiff, and there was no liberate action, which switching in a terminal

other source from which such streams could be

reasonably presumed to have en supplied, yard affords. In the latter case, the danger

and there was no other known outlet to deincident to coupling cars evidently being less feudant's stream. Held sufficient to sustain a imminent, what might be considered as an

finding that the stream from which defendant extraordinary risk in the coupling of cars at

appropriated water was the source of the plain

tiff's streams. a way station on the line of railroad, where 3. Where defendant is appropriating water hasty action on the part of the brakeman is from a stream which is the source of streams demanded, would not be so regarded in coup

from which plaintiff has a prior right of appro

priation, injunction is the appropriate remedy, ling cars in a terminal yard. The evidence

as an action at law would be inadequate. shows that iron rails shipped on flat cars 4. A complaint in a suit to restrain an apusually shift in transit, and that a car upon

propriation of water from stream which which they have been displaced in this man

plaintiff claimed to be the source of streams on

which he had a prior appropriation, alleging ner can only be coupled safely by the brake- an adjudication of water rights in the water man stooping below the projecting rails and district in which the streams are situated, and allowing them to pass over his head when

an award to the ditches through which plain

tiff claims such rights, states a prima facie the cars come together. The shifting of the

case, since Civ. Code, $ 65, provides that in. rails being usual, the risk incident to coup- pleading a judgment of a court of special juling cars on which such load has shifted is risdiction the facts conferring jurisdiction need

not be averred, but such judgment may be ordinary, particularly so in a terminal yard.

stated to have been duly made. The plaintiff's intestate was an experienced 5. A defect of parties must be raised by deswitchman and car coupler, and that he must murrer or answer, and, if objection is not so have seen the protruding rails and been con

taken, it is waived under provisions of Civ.

Code, $ 55. scious of the danger to which he was expos- 6. Where, in a suit to restrain appropriaed is evident from the location of the injury, tions of water, plaintiff pleads an adjudication which conclusively demonstrates that he was

in another county of the water rights in the stooping, as necessity demanded, when he at 'water district in which the streams are situ

ated, the fact that the adjudication proceedings tempted to make the coupling. We think, as were in such other county does not preclude to the service demanded of him, that the risk the court from assuming jurisdiction, since

such action is not a statutory proceeding to was ordinary, and one which he assumed on

adjudicate water rights. entering upon the discharge of his duty, and,

7. In a suit to restrain appropriations of wathis being so, no error was committed in ter, a decree is not objectionable as unqualigranting the nonsuit.

fiedly prohibiting the diversion of water be

tween specified dates, as the law reads into the It follows that the judgment is affirmed.

decree that the inhibition only covers the period that plaintiff has use for the water.

Steele, J., dissenting, (29 Colo. 317)

On Rehearing. MEDANO DITCH CO. V. ADAMS.

Failure to assign error on the admission in HUDSON et al. v. SAME.

evidence of a decree is a waiver of an objec

tiou to such admission. (Supreme Court of Colorado. Feb. 3, 1902.) WATERS AND WATER COURSES-SOURCES OF Appeal from and error to district court,

STREAMS-APPROPRIATIONS - INJUNCTION
ADEQUATE REMEDY-EVIDENCE-SUFFICIEN-

Saguache county.
CY-APPEAL.

Consolidated actions by George H. Adams, 1. In an action to restrain the diversion of waters claimed by appropriations antedating

trustee, against the Vedano Ditch Company, those of defendant, evidence that the streams

and same plaintiff against Joshua B. Hudson through which the parties claim their appro

and others. There were decrees in favor of priations are embraced in a certain water dis- plaintiff, and defendant in the former case trict, wherein was a statutory adjudication of the water rights awarding priority of specific

appeals, and defendants in the latter bring volumes of water to plaintiff, prior to defend

Aflirmed. ant's appropriation, is sufficient to sustain a finding that plaintiff's appropriation antedated

Appellee and defendant in error comdefendant's.

menced separate actions below for the pur2. Defendant appropriated water from pose of obtaining a decree enjoining appelstream which plaintiff claimed was the source of the streams from which he claimed prior ap

lant and plaintiffs in error from diverting propriations. The stream from which defend

water from Medano creek. Plaintiff in each ant's appropriation was taken flowed south- case was the same party, and claimed to be Westerly until intercepted by sand hills, into the owner of appropriations of water for the which it disappeared in the direction of the sources of plaintiff's streams. The streams

purposes of irrigation from Big and Little from which plaintiff's appropriation was taken Spring creeks, which antedated any approarose out of the western side of such sand hills, priation on the part of the defendants from and their sources, which were 3 and 7 miles,

Medano creek; that the latter was the source respectively, from where defendant's stream 'disappeared, were in the direction therefrom

of supply of Big and Little Spring creeks, of the general drainage of the country. Wit- and, by the diversion on the part of defend

error.

а

Henry Hunter, J. C. Gunter, and John A. Gordon, for appellant and plaintiffs in error. Walcott, Vaile & Waterman (W. W. Field, of counsel), for appellee and defendant in

error.

ants from Medano creek, the supply to which plaintiff was entitled and needed was diminished, to his damage. The court found these issues in favor of plaintiff, and entered decrees enjoining the defendants in each case from diverting any water from Medano creek from May 15th to October 1st of each year. From these decrees the defendant in the one case appeals, and in the other the defendants bring the case here for review on error. By agreement of parties the causes were tried below upon practically the same testimony. The issues of fact and questions of law involved are the same in each case, and will be considered together. The parties will be referred to in the opinion as plaintiff and defendants.

The following is a plat of the premises in question:

GABBERT, J. (after stating the facts). The first proposition advanced by counsel for defendants is that the testimony does not establish an appropriation by plaintiff of the waters of Big and Little Spring creeks which antedates the diversion of the waters of Medano creek by them. If the rights of plaintiff in this respect depended solely upon testimony to establish an actual application of the waters of Big and Little Spring creeks for the purposes of irrigation, this proposition might have some force. Such, however, is not the case. In each of his complaints

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plaintiff claimed an appropriation of the wa The sand hills vegin at the base of the main ters of these streams through Los Ojos, range, and at or near this point are several Hull, South Number One, and South Number hundred feet in height, several miles in Two ditches. Water District No. 25 embra width, and gradually diminish in altitude ces the drainage of Medano and Big and Lit and width as they extend south, unti! tle Spring creeks. It appears from a decree merged in the San Luis valley. Big and of the district court of Costilla county, en Little Spring creeks rise on the west side tered at the March term, 1895, and intro of these bills, in a comparatively sandy duced in evidence, that under a statutory level immediately adjoining their base. adjudication of water rights in that dis From the point where Medano creek is detrict the ditches in question were awarded flected in its general course, to the source of different priorities, of specific volumes of Big Spring creek, is about seven miles southwater, from Big and Little Spring creeks, westerly, and from the point where the wadating from March 10, 1875, to May 1, 1881. ters of the Medano ordinarily disappear, when The ditches of defendants were constructed high, the source of Little Spring creek is disin 1892 and 1894. The water decree was tant about three miles, almost west. The prima facie evidence that appropriations of sources of Big and Little Spring creeks are water for purposes of irrigation had been relatively, almost north and south of each made from those streams of the dates and other, and distant about three miles. Witvolumes awarded the ditches through which nesses state that many years ago a wellplaintiff asserts his rights, antedating the defined channel of the Medano was plainly rights initiated by defendants.

visible to the source of Little Spring creek, It is next urged by counsel for defendants and that they had seen water running in that the testimony does not establish that the this channel very close to the head of the waters of the Medano contribute substantial- | latter creek. One witness in particular ly to those of Big and Little Spring creeks, states that in 1863 or 1864 he had seen the and that, if they do, it is only by percola water of Medano running to Little Spring tion. At the request of counsel for both creek. Other witnesses state that this OCsides, the trial judge viewed the premises. curred again in 1895. Witnesses also state Whether or not the knowledge thus obtain that a well-defined depression, like an old ed should be given the effect of substantive channel of a water bed, extends from near testimony we do not determine. We must the source of Big Spring creek In a northconsider, however, that he was thereby bet- easterly direction for a distance of about ter enabled to understand and apply the evi- | two miles, which, if continued in its course. dence of the respective parties on the sub would strike, after passing through the sand ject under consideration. Our province in hills, about the mouth of Medano cañon; reviewing the testimony is to ascertain that, whenever the water of Medano creek whether or not the findings of fact are sup diminishes, the waters of Big and Little ported by the evidence. If they are, we Spring creeks also decline after a lapse of cannot interfere by substituting our judg- two or three weeks from the time when the ment for that of the trial court upon the waters of the Medano become low; that, weight of the evidence in the case. Iror when the Medano is muddy, the waters of Co. v. Pryor, 25 Colo. 540, 57 Pac. 51. The Big and Little Spring creeks would also be testimony is very voluniinous, and to notice rily, or show discoloration. Witnesses, also it in detail would be impracticable. Its re state that, since the diversion by defendants view will, therefore, be limited to a mention from the head waters of Medano creek. of those matters which tend to support the there has been a marked decrease in the finding of the trial judge that Medano creek flow of Big and Little Spring creeks. The is the source of supply of Big and Little general drainage of the country, with the Spring creeks, for the purpose of ascertain exception of the Medano, is towards the ing if there is sufficient legal evidence to west. According to surveys, the most rapid support the finding on this subject. Medano line of descent from near the mouth of creek rises near the summit on the westerly Medano cañon is in the direction of Big side of the Sangre de Cristo range, and Spring creek. flows southwesterly until, near the mouth The theory of plaintiff is that the San of the cañon from which it issues, it is in- | Luis valley was at one time a great lake, tercepted by a range of bills known as the the eastern shore of which was near the “Great Sand Dunes," from which point its present sources of Big and Little Spring course is along the base of these bills on creeks; that, when the lake disappeared, the the east side, nearly south, until it reaches sands of its bed were blown across the valthe south end, where it flows almost west. ley by the prevailing westerly winds, and In this course it unites with Mosca creek, deposited upon the wash and drift extending a small stream rising in the same range of from the base of the main range immediatemountains. When the water is low, it dis. ly adjoining the mouth of the cañon of the appears in the sand of the channel at the Medano, and constituting the divide between base of these hills, sometimes at one point that stream and Sand creek on the north, and sometimes at another, regulated in a and Mosca on the south; that, before this great degree by the volume of water flowing. deposit occurred, the natural channel of Me

68 P.--28

dano creek extended through this wash and plied. There is no other known outlet for drift in the same general direction of the the waters of the Medano. So that, concañon, which would carry it on a line with sidering the topographical conditions, in conthe present channel of Big Spring creek; that nection with other facts stated by the witthe accumulation of sand in its original chan- nesses, we are not required to enter the nel finally became so great that the waters realm of conjecture in order to determine were unable to longer cut their way through a connection between the Medano and the and over it on the surface, but that they con- Big and Little Spring creeks, but, on the tinued to flow or percolate through the coarse contrary, the testimony leads irresistibly to sand, gravel, and boulders composing the orig- the conclusion that the Medano is the source inal bed of the creek, and finally emerged as of supply of these streams; that at some the source of Big Spring creek; that the time in the distant past the sand hills did not obstruction of the old channel prevented all exist, and that during this period the Medano the waters from passing into the valley in found its way to the valley practically on a that way, and, as the sands gradually ac- line from the mouth of the cañon to the (umulated and raised, the excess water flow- head of Big Spring creek. So with Mosca ed over them in a general southerly direc- creek with respect to Little Spring creek. tion along the eastern base of the sand hills, The accumulation of sand in and over the uniting with Mosca creek, and "resulting original channels of these creeks, composed, in the creation of Little Spring creek; that like all mountain streams, of sand, gravel, the continuous flow of Mosca creek upon the and boulders, would not render the old chansurface was obstructed by the sand causes, nels altogether impervious to water. The and that the flow of Little Spring creek is interstices of their original beds would not practically on and over the ancient bed of be filled by the sands accumulating on their Mosca creek. Scientific writers on the geo- surface. Water could still find its way along logical formations and conditions of the San and through their ancient beds. This underLuis valley tend to support this theory. The ground flow. would naturally follow the retestimony of the witnesses with respect to spective original channels bounded by the the present physical conditions within their original banks, and while its passage may in own recollection also corroborate it. It is a great measure be through sand and gravel, known that the channel which formerly ex- nevertheless such a stream, when well deisted from the Medano to the head of Little fined, is as much a part of the flow of the Spring creek has in a great measure been ob- water of a creek to which it contributes as literated within the past few years, by rea- if visible. Such conditions do not present a son of the accumulation of sand over its case of percolating waters, within the meanchannel, and that the bed of the Medano along ing of the law. The subterranean volume the base of the sand hills is being gradually of water which finds its way through the raised from the same source. With the ex- sand and gravel constituting the beds of the ception of the Medano, after reaching the streams which traverse the country adjasand bills, the general drainage of the coun- cent to the mountains of this section are try is to the southwest. The course of that recognized as a part of the waters of the stream from the point where it intersects the stream to the same extent as though flowing sand dunes is almost at right angles with the upon the surface. That the surface bed of course of the gulches and ravines between such a stream may not be visible does not the cañon of the Medano and Mosca creek, change the rule with respect to this class of and at an angle of about 45 degrees with the flowing waters. Underground currents of other principal streams issuing out of the water which flow in well defined and known Sangre de Cristo range on that side. The channels, the course of which can be dismaterial which forms these hills must have tinctly traced, are governed by the same been brought from some other point. That rules of law as streams flowing upon the surthis is true is demonstrated by the fact that face. The channels and existence of such the process of accumulation of sand on and streams, though not visible, are "defined" along them is still in operation. The flow and “known," within the meaning of the law, and character of the Medano is reflected in when their course and flow are determinathe Big and Little Spring creeks. Experi- ble by reasonable inference. Platte Valley ments, the results of which were introduced Irr. Co. v. Buckers Irrigation, Milling & in evidence, indicate that it requires about Improvement Co., 25 Colo. 77, 53 Pac. 334; the length of time for waters to pass from McClellan v. Hurdle, 3 Colo. App. 430, 33 the Medano to these streams which inter- Pac. 280; Kin. Irr. $ 48; Gould, Waters, $ venes between a change in the Medano and 281; Strait v. Brown, 16 Nev. 317, 40 Am. a corresponding change in them. These Rep. 197. streams rise from amphitheater-shaped ba- In this connection it is urged by counsel for sins, the water evidently coming from a defendants that the waters of Sand creek may stratum of saturated sand. There is no oth- possibly contribute to the supply of the waer source than the Medano (except such as ters of Big and Little Spring creeks. Sand Mosca may contribute to Little Spring creek) creek rises in the same mountain range that from which it can be reasonably presumed the Medano does, and to the north. From that the waters of these streams are sup- the point where the Medano is first intersect

er by the sand bills, and distant about five The injury which the plaintiff was sustainmiles, Sand creek issues from the main ing by reason of a shortage of the waters of range, flows for a short distance along the the streams which he is entitled to divert and base of the sand hills on the west, and then apply to irrigation uses is continuing in its continues in a generally southwesterly course nature. The defendants are responsible for over a bed of sand and gravel, and through this shortage. His rights antedate theirs. a country more or less sandy on either side. An action at law against them by plaiutiff It has a defined channel all the way to the would be wholly inadequate, because it would San Luis Lakes, but at seasons of low water require a multiplicity of suits to recover the disappears entirely in the sands of its bed, damages which he might sustain from year long before it reaches these lakes. Its gen to year on account of the shortage of waters eral course corresponds with the direction from Big and Little Spring creeks. of the cañon through which it flows. It is a This is an action to protect priorities alwell-known fact that lying between nearly ready established, and not to determine them. all the streams issuing from the Sangre de Plaintiff states a prima facie case, in so far Cristo range on the west there exists a de as it relates to an appropriation of water for fined watershed. That such a shed must the purposes of irrigation, by pleading the have originally existed and been visible be adjudication of water rights in the water distween the Medano and Sand creek is entirely trict in which the streams are situate, and probable. For the waters of Sand creek the award to the ditches through which he through any subterranean channel to reach claims such rights. In pleading this judg. either Big or Little Spring creek would re ment he has substantially complied with secquire a drainage almost at right angles in tion 65 of the Civil Code, which provides, in direction from the natural drainage of the effect, that in pleading a judgment of a court country. That such a condition would exist of special jurisdiction it is not necessary to is not probable. Besides, experience demon state the facts conferring jurisdiction, but strates that the volume of water of the stream slich judgment may be stated to have been which disappears in the sands of its bed duly given or made. It is not necessary to would follow the general course directly un literally follow the prescribed formula; it is derneath the surface of such bed; so that it sufficient if from the averments it appears does not appear there are any 'facts or cir that the ultimate fact which may be so pleadcumstances from which it can be reasonably ed is otherwise stated. inferred that Sand creek in any way contrib A defect of parties must be raised by deutes to either Big or Little Spring creeks

or answer. If objection upon this above the headgates of plaintiff's ditches. ground be not so taken, it is waived. Section

It is also urged that a decrease in the flow 55, Civ. Code. No question of this character of these streams may be accounted for by was raised in the court below. reason of the fact that many artesian wells These actions are not statutory proceedings have been sunk in the valley within the past to adjudicate water rights; hence the fact few years, and that the water thus drawn off

that adjudication proceedings had taken place may have depleted the supply of these in the district court of Costilla county did not streams. These wells, with the exception of preclude the district court of Saguache couna few, are not in the near vicinity of either ty from assuming jurisdiction of these cases. of these streams, and all are below and sever Literally construed, the decree does inhibit al miles to the west and southwest of the

the defendants from diverting any water berespective springs forming their sources. If

tween the dates specified. The law, however, the water supplying these streams in any reads into the decree that this inhibition only manner contributes to the supply found in the

covers such portion of the period between the artesian wells, we do not see how it would be dates specified that plaintiff bas, use for the physically possible for the wells, situated as

water for the purposes of irrigation. they are, to deplete the flow at points dis The judgment of the district court is aftantly removed and above such wells. If wa firmed. Affirmed. ter flowing through a stratum of sand is diverted at a point below its source of supply,

On Petition for Rehearing. it would not affect its level or flow above that

(March 3, 1902.) point, any more than a diversion of water from a visible stream upon the surface would PER CURIAM. It is claimed that in affect its flow or volume above the point of passing upon the effect of the decree in the such diversion.

adjudication proceedings we overlooked that It is also urged that injunction is not the defendants were not parties to these proceedproper remedy; that the complaints do not ings. No error was assigned on the admisstate causes of action; that there is defect sion of the decree. Whatever objection the of pa rties; that the court below was without defendants may have had to its admission in jurisdiction; and that the decree is erroneous evidence was therefore considered as waived, in unqualifiedly prohibiting the defendants and the decree treated as having been adfrom diverting any water between the dates mitted without objection. specified.

Petition for rehearing denied.

murrer

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