
    [No. 5653.]
    Bates v. Hall.
    1. Water Rights — Evidence of Title — Possession and use is prima facie evidence of title. — P. 363.
    2. Water Rights — Change of Point of Diversion — The right of one of the petitioners under the act of March 27, 1903, for leave to change the point of diversion, being merely equitable and inchoate, it was held proper to permit the. holder of the legal title to file his written.consent to the change. — P. 364.
    It is error, in such proceeding, to decree that the petitioner may change the point of diversion of a specified fraction of the water- of the ditch without determining, where this is. in question, what volume of water was, by - a previous general decree, awarded t,o such ditch. — P. 365.
    The length of time the petitioner may use the water at the new place of diversion is not to be settled by the decree in the special proceeding prescribed by the Act of March 27, 1903 (Laws of 1903, 278), unless it appears that, if the decree be not limited in that respect, injury will necessarily or by reasonable inference result to a third person. — P. 369.
    Provision must be made by-the decree to protect the rights of third persons. If the circurnstances are such that this is impossible, the petition should be denied, e. g.: where it appeared that, by the proposed change, a junior appropriator would be deprived of a share of a volume of water, the result of seepage, it was held error to make no provision against this. — P. 369.
    3. Water Rights — Adjudication of Priorities — Decree—The general decree adjudicating the priorities to the use of water in a district is to be entered in the judgment book. That is the best evidence of what the decree was. A paper found in the office of the clerk of the court, purporting to be a subdivision of a general decree awarding priorities, though bearing' the approval of the judge then presiding in the court, does not control the judgment book. — P. 366.
    4. Judgment — Evidence of — The judgment book is preferred to a paper found in the clerk’s office and purporting to be the decree of the court in the same matter, even although it bears the approval of the judge of the court then presiding. — Pp. 366, 367.
    5. Water Rights — Adjudication of Priorities, Decree — A decree giving the width, depth and grade of the ditch is not void merely for its failure to give its capacity in second feet. — P. 368.
    Nor for its failure to specify the area which may be irrigated from the ditch, where the preliminary statement required by the statute contains the acreage. The decree will, by intendment of law, be limited to the acreage set down in the decree. —P. 368.
    6. Judgments — Construction of — A decree is to be construed with reference to the other portions of the record, e. g.: a decree declaring the priority of a certain ditch to the use of a certain volume of water, but not specifying the acreage of the lands irrigated therefrom, may be supplemented by reference to the preliminary statements of the ditch owner.- — P. 368.
    7. Evidence — Competency — When the decree adjudicating priorities in a district fails to specify the number of acres of land, to be irrigated from a particular ditch, the omission may, in a proceeding to change the place of diversion, be supplemented by the evidence of the acreage actually irrigated after the entry of the decree. — P. 368.
    
      Appeal from El Paso District Court.
    
    
      Hon. Louis W. Cunningham, Judge.
    
    Mr. George W. Musser and Mr. W. S. Morris, . for appellants.
    Mr. Henry McAllister, Jr., Mr. Newton S. Gandy, Mr. Branch H. Giles, Mr. Frank McDonnough and Mr. Clarence J. Morley, for appellees.
   Mr. Justice Campbell

delivered the opinion of the court:

In a special proceeding brought for that purpose under the statute (Session Laws 1903,- p. 278), of which due notice to the parties affected was given, the district court rendered a decree permitting the two petitioners to change from the Stubbs and Miller ditch,' which takes water from Fountain creek in water district No. 10, El Paso' county, to ditch No. 2 of the Fountain Valley Company farther up the same stream and in the same water district, the point of diversion of their right to the use of water for irrigation, each petitioner claiming a one-sixth interest in the quantity theretofore awarded to the Stubbs and Miller ditch by the general statutory decree of 1882, which settled the relative priorities of the ditches in that water district. The respondents, who are owners of the Laughlin ditch in the same district, whose headgate is between the headgates of the Stubbs and Miller and the Fountain Valley ditches, about two' and a half miles above the former and one-half to three-fourths of a mile below the latter, have appealed from this permissive decree.

1. The first objection which they urge thereto is that petitioners failed to show that they are owners of the water rights whose point of diversion they asked to have changed. By many decisions of this and other courts in the arid states the right to the nse of water for irrigation is regarded as real estate, and the proper method of passing title thereto is by deéd of conveyance. There was no proof of a paper-title in petitioners, and the specific objection which respondents make is that where, as here, title to 'real estate is directly involved and is a material issne, oral testimony by a witness that- one party is or is not the owner is not competent, and they cite Hite v. Stimmell, 45 Kan. 469; Simpson v. Smith, 27 Kan. 566. It may be conceded that these cases announce the' general rnle. Upon the hearing the conrt did permit some of the witnesses to testify that petitioners-were the owners of the water rights. There was, however, other and nncontradieted evidence that petitioners were in possession of the water rights and of the lands for. irrigating which the water was appropriated, and had nsed water for that pnrpose and were recognized by other owners of rights in the same ditch as the owners of the respective interests which they claimed.' It is matter of common knowledge that in this state many of the earlier water rights, which are acquired by appropriation and not by grant, have not passed by deed from the original appropriators; hence there is no record, evidence, or perfect chain, of title in snch cases. Few of the present owners conld prove their title if the strict rnle contended for by respondents is enforced. Proof of possession and nse is prima facie evidence of right and, if not overcome by stronger evidence, satisfies the requirement of this statnte that a petitioner mnst establish a right to the nse of water before relief is granted. Moreover respondents themselves were obliged to resort to the same kind of evidence to- establish their ownership of water rights in the Langhlin ditch which they claim would be injuriously affected by the proposed change. Respondents have no standing in court unless they are owners of a water right. If proof of petitioners’ rights is, for the reason indicated, insufficient, respondents’ proof is likewise defective. If respondents have no water rights to protect, they are not in a position to interpose an objection that .petitioners’ proof in the respect noted is insufficient. It necessarily follows that under the facts .respondents cannot he heard to object to the alleged insufficiency of petitioners’ evidence of ownership.

2. During the course of the hearing it developed that one of the petitioners, The Fountain Valley Land & Irrigation Company, had no interest in the water right, ownership of which it alleged in • the petition, except such as is derived from a contract of sale which it had made with May L. Skinner, which contract had not then matured and legal title was still in Mrs. Skinner. A continuance of the hearing was had for several months, and on its resumption Mrs. Skinner having died after the contract was made, the executors of her estate and her sole heir at law and devisee under her will, under authority given them by the county court of Arapahoe county in which the estate was being administered, filed a written statement or petition in this proceeding, wherein, after reciting the making of the contract between Mrs. Skinner and the irrigation company, and that it had been substantially complied with up -to date by the latter, they stated that they consented to the proposed change in the point of diversion. Respondents protest that the court committed error in permitting this paper to he filed, and say that as the executors and heir and devisee never asked to he made, and were not made, parties to the proceeding, it was irregular and prejudicial to respondents for the court to attach any weight whatever to such intervention. It does not clearly appear from the record why the continuance was had, but probably it was granted at the request of petitioners in order that they might furnish additional proof of ownership, or for the substitution of parties petitioner, or that additional parties might be brought in. "Whatever the object was, we cannot see how respondents were prejudiced by the action of the court in permitting the holders of the legal title to come in and give their consent. The legal owners certainly were interested in the subject-matter and the object of the proceeding, and might either consent or object to the change proposed. That they chose to join with the equitable owners in seeking the relief asked is not a matter of which respondents can complain, neither is any supposed irregularity in allowing the paper evidencing their consent to be filed a just cause of objection.

3. Under this statute we consider it necessary that a petitioner show a right to the use of a certain quantity of water from a public stream for irrigation as a condition precedent to obtaining a decree permitting a change in its point of diversion. To decree in favor of such change where the volume is not fixed would probably lead to useless litigation between rival claimants arid the water commissioner. As evidence of such right petitioners, over respondents’ objection, introduced what is referred to- in the abstract as “Exhibit A,” which, on its face, purports to be that subdivision of the general statutory decree of 1882 pertaining to the Stubbs and Miller ditch, the one-sixth interest in which owned by each petitioner they asked to have transferred. The clerk testified that he presumed the exhibit was a part of the files, as it was found in his office and afterwards bound in book form. On the back of it was the indorsement of the then presiding judge of the court approving the findings made by the referee and the draft of the decree reported by that officer. If this exhibit was the original decree, as approved by the court, the Stubbs and Miller ditch was awarded priority No. 6 on the Fountain creek for a ditch of the capacity of one and one-hálf by five feet on a grade of nine feet to the mile. In the judgment book of the court, in which by section 21 of the act of 1881 these decrees must be entered of record, the subdivision of the general decree pertaining to the Stubbs and Miller ditch was entered of record as required; and this judgment book shows that to the Stubbs and Miller ditch was awarded priority No. 6 for a ditch of one foot by four feet on a grade of nine feet to the mile. In neither was there any reference to the land or acreage for which the water was appropriated. It will be observed that there is a material difference between the carrying capacity of the ditch described in the exhibit and that described in the record entry. Two competent engineers at the trial testified that the carrying capacity of the latter was 6.86, and of the former 16.34, cubic feet per second of time. When this variance in the proofs was brought to the attention of the trial judge, he said that it was for him to determine whether the exhibit ■ or record entry defined the rights of the Stubbs and Miller ditch.' But it appears that after-wards he changed his mind and did not make such determination. This is evident from the decree which contains the proviso that nothing therein should be construed as an adjudication as to the quantity of water to which the Stubbs and Miller ditch and its owners were entitled under the general decree of 1882, or by virtue of the diversion and appropriation of water therefrom. While it is averred in the petition that the quantity of water awarded thereto is thirty cubic feet of water per second of time, and that each of the two petitioners owned a one-sixth interest thereof, or five cubic feet, the court inserted in the decree herein the proviso mentioned and yet permitted each petitioner to change the point of diversion of one-sixth part and portion of the water pertaining to the Stubbs and Miller ditch and to which he or it is entitled, without specifying what that portion is, and without stating in cubic feet per second what quantity of water had been decreed to the ditch. The court’s-first impression was right, and it should have determined which of the two documents evidenced the decree.

In view of further proceedings the following observations are for the guidance of the trial court. The general statutory decree was required to be entered in the judgment book of the court. As thus spread on the records it is the best evidence of what. was adjudicated in that proceeding. If it is different from the decree as reported by the referee, the presumption is the latter was modified by the court after the report was filed and before the entry was made. Upon the showing in this record, it is doubtful if “Exhibit A” was sufficiently identified to justify its admission as evidence at all. If, as claimed by respondents, it had been altered, the court should not have admitted it. If the decree as entered is different from the decree as actually pronounced, those making such contention should make the entry speak the truth. Until it is so corrected, it is -binding on all the parties and prevails over the exhibit, even though the latter contains what the court decided.

Neither in the exhibit nor in the record entry was the quantity of water specified in second cubic feet. Petitioners say that in Broadmoor Dairy & Live Stock Co. v. Brookside Water & Improvement Co., 24 Colo. 541, a similar subdivision of the same decree contained sufficient data from which the quantity of water decreed to the ditch then in controversy could be, and was, computed. In that case the width, depth and length of the ditch, but not the grade, were designated, but the number of acres of land to be irrigated thereby was given, and the court held, since it could be readily ascertained what amount of water was required to irrigate that acreage, and the decree having been in force for many years and acquiesced in by the parties in the distribution of water thereunder, that the decree would not be set aside because of its alleged insufficiency to show the quantity of water awarded. In that case, unlike the one in hand, the number of acres of land was given, but here the width, depth, and grade of the ditch are given, and from these three items can be ascertained the carrying capacity of the ditch. As a priority may be measured both by volume and time, the number of acres of land lying under the ditch which it was proposed to irrigate is material, at least as to the element of time. The decree is silent as to that. It is not necessarily void because of this omission. The statute requires that the owners of each ditch in the district shall file a statement of their claim of water, and in this statement they must state the number of acres of land lying under the ditch which are proposed to be irrigated with water therefrom. We are entitled to presume that this preliminary statement was filed by the owners of this ditch, and that the acreage was given. Upon the supposition that it was filed it will be presumed that the decree fixing the volume, represented by the carrying capacity of the ditch, was intended to be limited to the acreage described. As throwing light on this issue, the actual use of the water — that is, the extent of the use within ”a reasonable time after the decree was rendered — is relevant. From all these sources the appropriation, both as to volume and time, is, or may be, susceptible of determination.

The length of time petitioner may use the water after the point of diversion is changed, if not the same question as enlarged use, is analogous thereto ; and probably ought not to be decided in this special proceeding — unless such duration necessarily results in an enlarged use, as explained later on — but should be litigated, if at all, in an appropriate proceeding in case of a controversy between the parties over the same after the change is made. The volume in cubic feet per second, however, should be1 ascertained in this proceeding before entering a decree permitting the change to be made.

4. As has been frequently decided by this court, the right to a change of the point of diversion or place of use is not an absolute, but a qualified, right, which section 2 of the statute under which this proceeding was instituted recognizes by providing that such change, if it injuriously affects the vested rights of others, shall not be made, or if such injury appear, the court shall decree the change only upon such terms and conditions as may be necessary to prevent such injurious effects, and if impossible to make such terms and conditions, the application must be denied. The evidence in this case without contradiction shows that the respondents as owners of the Laughlin ditch would be injuriously affected if the prayer of the petitioners was granted. -The Stubbs and Miller ditch, of which each of the petitioners alleged a one-sixth ownership, has priority No. 6 on the Fountain creek in this district. Respondents are owners of the Laughlin ditch, which has priorities Nos. 10 and 17. The petitioners propose to change the point of diversion from the Stubbs and Miller ditch to the headgate of ditch No. 2, belonging to The Fountain Valley Ditch Company, farther up the stream. Between the old and proposed new point of diversion is the headgate of the Laughlin ditch. After all the water of the stream is taken out through the Laughlin ditch, as the result of seepage and springs, a volume of water rises in the bed of the stream below the headgate of the Laughlin ditch and above that of the Stubbs and Miller ditch of from three to five cubic feet per second of time. If the quantity, or any portion thereof, decreed to the Stubbs and Miller ditch is diverted at a point on the stream above the head-gate of the Laughlin ditch, the latter being junior in point of time, it necessarily follows that the Laughlin ditch will be deprived of the benefit of such seepage and spring waters, or such portion thereof as the amount of water proposed to be changed bears to the entire quantity of water to which the Stubbs and Miller ditch is entitled. It is not a sufficient answer to say that two-thirds of the decreed capacity of the.Stubbs and Miller ditch must still be taken out at its headgate, and in times of scarcity the Laughlin ditch would be closed down until after the Stuhbs and Miller, and other ditches farther down the stream prior in point of time, are satisfied. The Laughliii ditch would still be deprived of the benefit of the indicated proportion of the seepage and spring water arising between its headgate and that of the Stubbs and Miller ditch. Whether the injury which would result to the -respondents’ if the proposed change was made could be provided against by terms and conditions in the decree, we do not say. That they would be injured is clear, and the court did not attempt to provide against this injury, but entered an absolute decree permitting the change to be made. If no other error had been committed by the trial court, this one alone would require a reversal of its judgment.

In this connection it is proper to consider the objection of respondents that the court refused their offer of evidence to show the change in the. conditions affecting them which would ensue if the new point of diversion is permitted. The court did give full scope to the parties in the production of evidence in respect to the flow of seepage and spring water between the headgates of the Laughlin and the Stubbs and Miller ditches, and in this particular respondents have no just cause of complaint. It appears, however, that petitioners proposed to change not only the point of diversion, but the place pf use, and to carry the volume of water which they claimed to own through a. new ditch and for the irrigation of other lands and for filling a reservoir at a distance of four or five miles beyond the lands to irrigate which the appropriation was originally made. Respondents claim, and offered evidence to show, that thereby there would necessarily be an enlarged use, both as to volume and time. In Irrigation Co. v. Water S. S. Co., 29 Colo. 469, we said that it was not proper, in a proceeding to change the point of diversion, to go into- the question of an enlarged use which the petitioner might make' of the water after the point of diversion was changed; but this was immediately qualified by the statement that if the evidence showed that the changed conditions necessarily, or by -reasonable inference, would result in an enlarged use, the petition should not be granted. In the light of the offer made by respondents, the court should have permitted pertinent evidence, if any, to show that the proposed change would necessarily cause the injury which they alleged would be inflicted.

For the foregoing reasons the judgment is reversed and the cause remanded, with instructions to the district court, if further proceedings be hád, that they be in accordance with the views herein expressed. Reversed and remanded.

Chief Justice Steele and Mr. Justice Gabbeut concur.  