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Show 224 PROTECTION OF WATER RIGHTS IN WATERCOURSES before the case was tried, it developed that the flow of a natural spring on the land, which flow had been used beneficially by defendant, was interfered with by the canal. "In condemnation proceedings, the owner across whose land a right of way is taken, is entitled to recover damages to the residue caused by such right of way, equal to the diminution in the market value of such residue for any use to which it may reasonably be put." The petitioner was not attempting to condemn the spring water for its own use, but by constructing its ditch in the place and manner it did, it interfered with the use of water by respondents on their land as theretofore enjoyed by them. "This necessarily depreciates its market value, and to this extent the petitioner should respond in damages, not for the value of water taken or appropriated, but because by the construction of its canal, it has depreciated the value of respondents' land by depriving them of the use of water thereon to which they are entitled."161 (11) The Colorado Supreme Court has said "While the general rule is that damages to real estate are to be determined by finding the difference between its value before the injury and its value afterwards, it is not of universal application; there being cases in which it would not do justice." The court added that "the rule to be applied should be as near as may be, the actual loss suffered" and that the best evidence obtainable as to damage would be admissable.162 (12) In a 1943 case, the Utah Supreme Court said that in an earlier case "this court specifically repudiated the theory that the measure of damages is the difference in the value of the land with and without the water. In that case we held that where the facts were such that no market value was ascertainable then the value of the water can be determined by the uses to which it had been put, and that the owner was entitled to be compensated for the full measure of his loss."163 In the 1943 case, the court held that the value of the water can be determined by the value of the water for the purposes to which it is adapted as well as the uses to which it has been put.164 161 Farmers'Res. &Irr. Co. v. Cooper, 54 Colo. 402, 406-407, 130 Pac. 1004 (1913). l62Big Five Mining Co. v. Left Hand Ditch Co., 73 Colo. 545, 216 Pac. 719, 720 (1923), involving damage from flooding. The court did not expressly classify the damage as either permanent or temporary. This case was later cited and discussed in Game & Fish Comm'n v. Farmers In. Dist, 162 Colo. 301, 426 Pac. (2d) 562, 565 (1967), involving water pollution, in which damages and injunctive relief were obtained. See the discussion at note 155 supra. 163 Sigurd City v. State, 105 Utah 278,142 Pac. (2d) 154, 159 (1943), referring to Whitmore v. Utah Fuel Co., 42 Utah 470, 131 Pac. 907 (1913). 164Sigurd City v. State, 105 Utah 278, 142 Pac. (2d) 154, 159 (1943), referring to Shurtleffv. Salt Lake City, 96 Utah 21, 82 Pac. (2d) 561, 564 (1938), which it said in effect had agreed with the concurring opinion of Judge Straup in the Whitmore case cited in the preceding note. In the latter regard, the court said that under the Utah statutes an appropriator may change the use of his water upon application to the State engineer. All of these Utah cases involved permanent damages and the Sigurd case involved condemnation of water rights. |
