Colorado § 37-85-102 - Right to continue purchasing water.

§ 37-85-102. Right to continue purchasing water.

Any persons, acting jointly or severally, who have purchased and used water for irrigation for lands occupied by them from any ditch or reservoir, and have not ceased to do so for the purpose or with intent to procure water from some other source of supply, have the right to continue to purchase water to the same amount for their lands, on paying or tendering the price thereof fixed by the board of county commissioners as provided in sections 37-85-103 to 37-85-106 or, if no price has 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 have sold or forfeited their shares or stock, unless they 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.

Source: L. 1879: p. 96, § 3. G.S. § 1740. R.S. 08: § 3264. C.L. § 1741. CSA: C. 90, § 139. CRS 53: § 147-8-1. C.R.S. 1963: § 148-8-1.

ANNOTATION

I. General Consideration.

II. The Consumer.

III. The Carrier.

IV. Measure of Damages.

I. GENERAL CONSIDERATION.

Law reviews. For note, "A Survey of Colorado Water Law", see 47 Den. L.J. 226 (1970).

State owns water diverted from natural stream. Wheeler v. Northern Colo. Irrigating Co., 10 Colo. 582, 17 P. 487 (1887); Northern Colo. Irrigation Co. v. Bd. of Comm'rs, 95 Colo. 555, 38 P.2d 889 (1934).

Neither the carrier nor the landowner owns the water diverted from a natural stream in Colorado; they have only the use thereof under regulations prescribed by the state, which owns the water. Northern Colo. Irrigation Co. v. Bd. of Comm'rs, 95 Colo. 555, 38 P.2d 889 (1934).

To constitute a valid appropriation, the water diverted must, within a reasonable time, be applied to some beneficial use. Wheeler v. Northern Colo. Irrigating Co., 10 Colo. 582, 17 P. 487 (1887).

The priority of an appropriation may date from the commencement of the ditch, proper diligence having been exercised. Wheeler v. Northern Colo. Irrigating Co., 10 Colo. 582, 17 P. 487 (1887).

Section does not apply to a proceeding between individuals in which no ditch company is a party, as where the question to be determined is whether a sheriff's deed includes a water right. Cooper v. Shannon, 36 Colo. 98, 85 P. 175 (1906).

II. THE CONSUMER.

Where an original appropriator conveyed his water right to a ditch company which in turn contracted to furnish water for irrigation to the appropriator's land without charge, such appropriator was no longer owner of water right but a consumer whose rights were determined by contract, and his successors in interest acquired his rights thereunder. Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962).

A contractual right to make use of water on specific lands is far different from the "water right" acquired by original appropriation, diversion and application to a beneficial use. Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962).

A user having contracted for and beneficially used for irrigation purposes a specific volume of water for any particular year, without any valid limitation as to future use, would be entitled to the same volume each year succeeding, when needed for the purposes of irrigation, upon tender, annually, without intermission, of the rate which the company could lawfully exact, and compliance with its rules and regulations, so far as reasonable. Northern Colo. Irrigation Co. v. Richards, 22 Colo. 450, 45 P. 423 (1896); City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

Where nothing in a contract specifically required the grantor to continue for any definite time in the exercise of his right, nor was there in the conveyance under which plaintiff held the lands, any condition or requirement that he should observe or perform any of the conditions of the contract under which water had been obtained, it was held that a provision of his contract that upon failure of the grantor to pay the annual rental, he should surrender all right or interest thereby created, did not necessarily involve a surrender of the statutory right to continue to purchase water for the same land, and that, notwithstanding plaintiff's repudiation of the contract, his right under the statute was undeniable. Northern Colo. Irrigation Co. v. Pouppirt, 22 Colo. App. 563, 127 P. 125 (1912).

A corresponding duty to deliver devolves upon the carrier. Northern Colo. Irrigation Co. v. Pouppirt, 22 Colo. App. 563, 127 P. 125 (1912).

If, by collusion with the employees of the irrigating company, he receives a volume in excess of what is specified in the contract, making no payment for such excess, he acquires no right to such excessive volume in subsequent years. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

The consumer's rights may be waived, and a voluntary contract as to these matters may be binding upon him. Wheeler v. Northern Colo. Irrigating Co., 10 Colo. 582, 17 P. 487 (1887).

Where a consumer, by the annual use of the water in a particular volume, has acquired the right to continue in the enjoyment of the same volume, a condition limiting his right, imposed upon him without his consent, and against his protest, is invalid; e.g., where a municipal corporation having acquired the control of the works of an irrigation company, requires even those who are entitled to be supplied therefrom, by reason of such former user, to enter into contracts "subject to the needs and requirements of the city" such contracts, executed under protest, are without effect to limit the right of the consumer to the volume of water before rightfully enjoyed; otherwise as to any volume in excess thereof. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

When, however, his contract expires by limitation, and is not renewed, and he does not take the necessary steps to preserve the status growing out of his contractual relation with the carrier, his rights to a future use of water from the ditch cannot be based upon past use, in other words, his contract with the carrier is for carriage, and his rights are limited by its terms, so far as valid, to the volume of water for the period mentioned in his contract. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1904).

A consumer supplied with water by contract from a ditch owned and operated by a carrier company in a sense is an appropriator from the stream supplying the ditch, but does not occupy the exact status of an independent appropriator directly from the stream, as his rights are limited by the terms of his contract, so far as valid, with the ditch company, as well as other limitations which the law, from the nature of the relation between the carrier company and a contract consumer from its ditch, imposes. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

All consumers, generally speaking, have the right to be supplied from all the priorities decreed the ditch through which they are supplied, whose rights by virtue of prior use aggregate the volume of such priorities, and in such circumstances stand upon an equal plane. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

Where the first appropriation decreed a ditch was designed for some particular purpose or enterprise, and later priorities awarded were to supply a different class or group of consumers from the first, then the later priorities would be as distinct as if used through separate canals, and the rights of the different classes of consumers would attach only to the respective priorities awarded for their respective use. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

A provision in a contract between the consumer and carrier limiting the volume of water which the consumer is entitled to have delivered is valid. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

Upon tender of the rate fixed and compliance with reasonable regulations established, if the carrier has water undisposed of, the consumer is entitled to its use, and mandamus lies where his demand is refused. Wheeler v. Northern Colo. Irrigating Co., 10 Colo. 582, 17 P. 487 (1887).

A prior purchaser is entitled to continue to purchase, although he may be able to obtain water from some other source. Golden Canal Co. v. Bright, 8 Colo. 144, 6 P. 142 (1884).

III. THE CARRIER.

The carrier cannot acquire the rate-making power although in its contracts for the sale of water it may attempt to reserve the right, and such contracts are subject to constitutional and statutory provisions which should be read into them. Northern Colo. Irrigation Co. v. Bd. of Comm'rs, 95 Colo. 555, 38 P.2d 889 (1934).

If the carrier assumes and exercises the rate-making power, its acts are subject to review and change by the county commissioners upon a proper showing. This, in effect, was decided in Montezuma Water & Land Co. v. McCracken, 62 Colo. 394, 163 P. 286 (1917). Northern Colo. Irrigation Co. v. Bd. of Comm'rs, 95 Colo. 555, 38 P.2d 889 (1934).

An irrigation canal company, carrying water for hire, is not the proprietor of the water which it is entitled to divert, but must be regarded as an intermediate agency existing for the purpose of aiding consumers in the exercise of their rights to appropriate water, as well as a private enterprise prosecuted for its benefit. City & County of Denver v. Brown, 56 Colo. 216, 138 P. 44 (1914).

It is a quasi-public servant, charged with certain duties, and subject to a reasonable control, and it has, in general, a monopoly of the business, and, at common law, could not coerce compliance with unreasonable regulations or charges. Wheeler v. Northern Colo. Irrigating Co., 10 Colo. 582, 17 P. 487 (1887).

The carrier is entitled to compensation for carriage, but it cannot charge for the right to use water from its canal, nor can it exact in advance a part or all of its transportation charge, for the remaining years of its corporate life, as a condition precedent to use for the current irrigating season. Wheeler v. Northern Colo. Irrigating Co., 10 Colo. 582, 17 P. 487 (1888).

A ditch owner may make reasonable rules to be observed by both himself and the consumer in the sale and distribution of water from his ditch, but a prior purchaser who has complied with the provisions of this section cannot be required, as a condition precedent to the exercise of his right to purchase water, to acknowledge the equity of all the rules adopted by the ditch owner. Golden Canal Co. v. Bright, 8 Colo. 144, 6 P. 142 (1884).

Since this section declares that, upon doing certain things a consumer shall have the right to purchase water of respondent, it would be an impotent construction to admit that a clear legal obligation binding the latter to sell is not also created, and the consumer is entitled, upon performance of the condition precedent, to admission to the use and enjoyment of a certain quantity of water from the carrier's ditch, to say that the latter is not burdened with the duty of admitting the former to such use and enjoyment is to deny the right and nullify the statute. Golden Canal Co. v. Bright, 8 Colo. 144, 6 P. 142 (1884).

IV. MEASURE OF DAMAGES.

The rental value of the land is not to be taken as the measure of damages for a failure to furnish water for irrigation, except when the consequent loss of crops was entire. Northern Colo. Irrigation Co. v. Richards, 22 Colo. 450, 45 P. 423 (1896).

In an action against a ditch company for damages for failure to furnish water for irrigation, the rental value of the land is adopted as a basis for estimating damages, the jury should be instructed to deduct from the rental value the necessary outlay which the plaintiff would have been required to make in the cultivation of the lands. Northern Colo. Irrigation Co. v. Richards, 22 Colo. 450, 45 P. 423 (1896).

While the loss of trees, seed and labor, occasioned by a failure to furnish water for irrigation, may constitute a proper element of damage in an action for such failure, compensation for permanent improvements or for depreciation in the value of live stock and farm implements cannot be recovered. Northern Colo. Irrigation Co. v. Richards, 22 Colo. 450, 45 P. 423 (1896).