OCR Text |
Show 600 EXERCISE OF THE APPROPRIATIVE RIGHT and distinct causes of action, for which there are separate and distinct remedies."39 Despite this separation in property nature, it is true that the water right and ditch right are closely related in their functioning, for under most circumstances the exercise of the water right depends upon the use of some method of diverting and conveying the water. Joint Occupancy and Use of Works From the rule respecting separable ownerships of water rights and waterworks, it results that a single diversion and distribution system may be used for the service of any number of different priorities owned by different appropriators for use in connection with their respective farms. (See in chapter 7 "Methods of Appropriating Water of Watercourses-Priority of Appropria- tion.") "The joint use of the common conduit does not vary the legal consequences which flow from the possession of these several water rights. These remain exactly the same as though the fourteen users had constructed fourteen separate ditches in which to carry their water from Mann Creek to their respective lands."40 Several parties may appropriate water simultaneously by means of a common ditch for lands even though held in severalty, and may hold ownership of the water right jointly or in common. Distribution of the water after diversion into their ditch is their own affair.41 In a Colorado case, two parties acted together in appropriating water and construcing a ditch, and there was a unity of possession while the water was being diverted and carried in the ditch; but such unity of possession ceased when the water reached the separate places of use, so that the water right was not jointly owned.42 It is a fundamental rule of irrigation law in Colorado that a decree entered in a statutory adjudication proceeding does not and cannot determine ownership of the various water priorities awarded to any given ditch; it merely awards the ditch its proper number, and adjudicates the quantity of water to which it is entitled from water priorities of various dates which will use it.43 In several decisions rendered over the years, the Colorado Supreme Court has held that any one of several appropriators of water diverted and carried through the same ditch may-as against the other appropriators through the 39Nevada County & Sacramento Canal Co. v. Kidd, 37 Cal. 282, 309 (1869). 40Cronwall v. Talboy, 45 Idaho 459,463, 262 Pac. 871 (1928). "Miller v. Lake In. Co., 27 Wash. 447,451-452, 67 Pac. 996 (1902). "Telluride v. Davis, 33 Colo. 355, 356-358, 80 Pac. 1051 (1905). *3Saunders v. Spina, 140 Colo. 317, 344 Pac. (2d) 469, 473 (1959). It does not and cannot adjudge the respective rights and claims of water users under any ditch: Loshbaugh v. Bemel, 133 Colo. 49, 54, 291 Pac. (2d) 1064 (1956). Nor does it purport to determine what persons own the ditch, or their respective interests in the ditch or in the water which it carries: Putnam v. Curtis, 7 Colo. App. 437, 440-441, 43 Pac. 1056 (1896). |